MARITAL RAPE and its kind

Kshama Bharti

Author of this article is a Law Student, Faculty of Law, University of Lucknow.

How would you feel when I say that rape continues to be legal in our country. Yes I’m talking about MARITAL RAPE.

A marriage is bond of trust, love and affection. Both men and women are equally important for the development of benevolence. Women’s are always discriminated and face to several problems in our country. Offences against women’s are endless like sexual harassment dowry death, domestic violence, rape, insult to modesty , abduction, indecency cruelty by intimate partner or relatives. Marriage doesn't mean that wife is usually consenting for physical relation along with her husband.

“If a man and his wife obtained by force or threat to force where the wife is unable to give her consent is alleged to considered as a Marital Rape". According to World Bank of data India is one amongst 35 countries within the world where marital rape is legal. A bench of Justice Gita Mittal and C Hari Shankar said that during a relationship like marriage, both men and women have a right to say 'no' to physical relations. Study says that in every 6 hours a young married women has been burned or beaten to death and even commits a suicide because of the emotional abuse from her husband. The United Nation population fund states that more than 2/3rd of the married women in India, who are aged between 15 - 50, have been beaten, raped or forced to provide sex with him. In the year 2005 nearly more than 6500 cases were recorded where women were murdered by their husbands or by their husband's family.

There are different kinds of marital rape

1.    Battering rape: In battering rape, women experience both physical and sexual violence within the relationship and that they experience this violence in various ways. Some are battered during the sexual violence, or the rape may follow a physically violent episode where the husband wants to make up and coerces his wife to possess sex against her will. The bulk of marital rape victims fall under this category.

2.     Force-only rape: In what's called force-only rape, husbands use only the number of force necessary to coerce their wives; battering might not be characteristic of those relationships. The assaults are typically after the woman has refused sexual activity.

3.     Obsessive rape: Other women experience what has been labeled as obsessive rape; these assaults involve torture and/or perverse sexual acts and are often physically violent.

                                                

Supreme Court says that marital rape cannot be considered criminal. In the case of Independent Thought v. Union of India the court stood by the second exception of section 375 of IPC to provide protection to the husband, his minor wife and also the sanctity of their relationship. The exception states that “sexual intercourse between a man and his wife, the wife not being under 15 years of age, isn't rape.” The motive behind this step of the judiciary is for the protection of all minors from rape under section 375 of IPC, no matter legal status.

Section 376 of the Indian penal code provides punishment for rape. According to this section,

The rapist should be punished with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be vulnerable to fine or both. In Sareetha V. Venkata Subba Chase, it was held that, rights and duties in a marriage, is sort of a creation and dissolution and not the term of personal contract between two individuals. The right to privacy isn't lost by the marital Association. Hence there's no punishment for marital rape and also the remedy lies along with her.

It is said by a several of  politicians the concept of marital rape can't be applied in the Indian context due to many factors such as level of education, illiteracy, poverty, social customs and values, religious beliefs, the mindset of the society to treat the marriage as a sacrament. The S.C.bench state that “parliament has extensively debated the issue of marital rape and considered that it was not an offence of rape. Therefore, it cannot be considered a criminal offence.”

Now the question arises how do other countries treat marital rape?

Many countries have the strictest possible rules against marital rape. Many have criminalized it in recent years. Malaysia changed its laws to that effect in 2007, Turkey in 2005, and Bolivia in 2013. The United States began criminalizing marital rape in 1970s and most European countries in the 1990s.

The National Family Health Survey of India(2005-2006) in its study of over 1.25 lakhs women in 29 states observed that 40 percent of married women in the age group of 15-49, at least once, had experienced physical, sexual or emotional violence perpetrated by spouses. In 2011, a study conducted by the International Center for Research on Women revealed that one in every five Indian men surveyed admitted to forcing their wives into sex. These are numerical figures. However, the qualitative analysis reveals that marital rape and sexual violation isn't merely associated with episodic forced or penetrative sex, rather it's a bigger issue.

In the case of Queen Empress v. Haree Mythee, it was held that, the wife over the age is of 15, then the rape law does not apply in that situation. In this case the husband was punished because his wife was 11 years only. In the Kerala High Court, Sree Kumar v. Pearly Karun, it was observed that, the wife does not live separately with the husband under the Judicial separation and being subject to sexual intercourse without her will the act does not amount to a rape. Hence, it was said that, the husband was not found to be guilty of raping his wife though he was de facto guilty of doing or committing the act.

CONCLUSION

Marriage is not only about sex, but the consent of both the wife and the husband also is necessary and the defense of marriage cannot be taken in the cases of marital rape.As the women are still treated as the property of husband and he has all the rights to exploit her and no remedies have been provided.

women should be taken proper care and they should not be subjected to sexual assault or violence.

Here I quote what “Nani Palkhiwala” said,

"There are two types of people in the world, those who expect the political system to produce humanity and care, and those who practice humanity and care, knowing that one distant day will produce the system. Those who rely upon the government to alleviate the miseries of the people are indulging in a pipe dream. Your life is within your control and you can put it to such useful purposes as you think fit. The world is full of educated derelicts. Persistence and determination alone are omnipotent. This slogan will always solve the problems of the human race."

Because she is a human being as you are!!!