NO MEANS NO!
The Author of this blog is Shivangi Mishra of JLU School of Law, Jagran Lakecity University, Bhopal.
As
the movie “PINK” we praised a lot came with thought that a women’s consent is
what matters the most in any physical relationship established between men and
a women, the right to live the life with dignity and own choices shall be one
thing which every human being ,be it a man or women shall have a right to. The
holy matrimony bond seem to roar a bond of trust and protection, a sight of
companionship expected from the individuals as partners leads the definition of
marriage. But no sense of protection, compassion and intimacy is left where there
is force of throwing oneself on the partner to adhere to satisfy the needs
without the consent. The forceful “love making” what we call it in the marriage
is MARITAL RAPE and is an offence which is one of the NEWLY EMERGED type of
domestic violence. The Indian society does not consider marital rape as
something that should stood against, it is considered as the duty of the wife to fulfill the sexual
needs of their husband. It is very shocking to understand that even some women
supports marital rape and ask their daughters, daughter in laws, sisters,
friends to keep quiet and ‘COMPROMISE’.
The word compromise leads to ending and destroying many lives, that could have
been better if somebody stood against MARITAL RAPE with them or that if the
society would accept the fact that rape is rape with or without the marriage a
sexual intercourse with force and without consent is wrong.
Rape
is specified under section 375 of IPC, 1860, and it states that a man is said
to commit rape when he penetrates a woman's vagina with his penis to some
degree. How far the penis has gone inside the vagina is does not matter or is
considered as immaterial.
Even
when a man inserts his penis into urethra, or mouth of a woman or inserts, to
any extent, any object or a part of the body, not being the penis, into the
vagina, the urethra or anus of a woman or makes her to do so with him or
applies his mouth to the vagina, anus, urethra of a woman or makes her to do so
with him it will be considered as rape.
2
essential element of rape are:
1. against
her will
2. without
her consent
For
a sexual intercourse to be committed as rape the above two conditions are
extremely necessary. Even if one of the conditions is not proved the
intercourse cannot be considered as rape.
Marital Rape corresponds to an involuntary
sexual activity between a man and his own wife which is committed by illegal
force, threat of force, or physical assault, or while she is incapable of
giving her consent to such intercourse. Marital rape was defined by the Supreme
Court in the case Nimeshbhai Bharatbhai Desai vs State Of Gujarat[1] as a disgraceful offence
that has scarred the trust and confidence in the institution of marriage. It
refers to unwanted intercourse by a man with his wife obtained by force, threat
of force, or physical violence, or when she is unable to give consent.
Marital
rape is mentioned in exception 2 of section 375 of IPC, which says Sexual
intercourse by a man with his own wife, the wife not being UNDER 15 YEARS of
age, is not rape. This clearly means if a sexual intercourse is done by a man
with his own wife who is above 15 years of age even if against her consent will
not be considered to be marital rape.
In Independent
Thought V. Union of India [2] The Hon’ble Supreme Court
of India on 11th October 2017 had an opinion that exception 2 of section 375 of
IPC was liable to be stuck down on the following ground:-
1. This is arbitrary, capricious, whimsical and infringing on the rights of the girl child and is not equal, equitable and rational and thus in breach of Article 14, 15 and 21 of the Indian Constitution;
2. This discriminates against and breaches Section 14 of the Indian Constitution,
3. This is incompatible with POCSO regulations which have to prevail.
Physical
symptoms of marital rape may include damage to private organs, lacerations,
sores, bruises, torn tissues, weakness, and vomiting. People who have been
abused and raped by their husbands can suffer other physical effects, including
broken bones, black eyes, bloody noses, and knife wounds that occur during
sexual assault. Common gynecological consequences of marital rape include
unwanted pregnancies, miscarriages, stillbirths, diseases of the bladder,
infertility and the possible contraction of sexually transmitted diseases,
including HIV.1 These are some physical effects of marital rape as highlighted in
Valsamma
Paul v. Cochin University[3]
case.
The
society still feels a Grinch in accepting the fact that without consent sex in
a marriage is also devastatingly wrong as if it would have been wrong if done
by a stranger. The mental state of the victim suffer so much if the one person
in whom they had so much of faith, is lynching there life slowly everyday .The
feeling of being touched sexually or non sexually with force or without consent
may give a physical mark ,but it definitely leaves a big brutal mark on the
mental health of the victim. The Psychological effects
are long-lasting, some marital rape survivors has experienced flashbacks,
sexual dysfunction, and emotional pain for years after the violence.
The mental dysfunction due to this devastating and horrifying experience
not only just haunts a person's mental health but also could destroy the
functioning of the body or creating some major changes. Women who are raped by
their partners suffer severe psychological consequences as well. The short-term
effects of marital rape include anxiety, shock, intense fear, depression,
suicidal ideation, and post-traumatic stress. Long-term effects often include
disordered eating, sleep problems, depression, problems in establishing
trusting relationships, and increased negative feelings about themselves.
The
marital rape enactments in India are either vague, non-existent or rely on
court's interpretation. Section 375, the
Indian Penal Code (IPC) talking about rape has an exception clause-"
Sexual intercourse between a man and his own wife, when wife is not under the
age of 15 is not rape." which means if there is sexual intercourse between
and his wife, either forcibly or without her consent will not considered as
rape merely because women is above age of 15 year. The main question which
arises here is ," WHEN MINIMUM AGE ALLOWED FOR MARRIAGE OF A GIRL IS 18
YEARS, WHY IS THE AGE PROVIDED FOR MARITAL RAPE IS MAXIMUM 15 YEARS?"
Even
when marital rape is committed with a girl below 15 years WHY IS THE PUNISHMENT
IS ONLY OF 2 YEARS, and punishment for rape of woman not being wife is minimum
7 years. WHY DOES POINT OF MARRIAGE REDUCE THE PUNISHMENT TO RAPIST?
Rape whether done with wife
or any other woman is a heinous crime, as RAPE MAY ONLY BE DONE FOR A FEW
MINUTES, BUT IT HAUNTS THE VICTIM FOR THE REST OF HER LIFE.
The
entire legal system of rape is in a mess, full of paradoxes. The biggest legal
loophole that comes in the way of empowering women against marital rape is;
·
The legal interpretation has broadened the meaning of Article 21 of the Indian Constitution by advancements and it is within the meaning of this provision that "the right to live with human dignity". Marital
rape obviously infringes a woman's right to live with dignity and, to that end,
it is argued that the exemption provided for under Section 375 of the Indian
Penal Code, 1860, breaches Article 21 of the Constitution.
·
While Article 14 protects a individual from State discrimination. Yet the exception pursuant to section 375 of the Indian Penal Code, 1860, discriminates against a wife when it comes to rape defense. Thus,
it is submitted that, in this regard, the exception provided for in Section 375
of the Indian Penal Code, 1860, is not a fair classification and thus infringes
the protection granted by Article 14 of the Constitution.
·
The above points were also noted by the
Supreme court itself in the case Independent Thought V. Union
of India[4] and
court also held the law regarding marital rape as arbitrary.
In
our Indian society also we have to make various change, we not only need to
change the mindset of the people but also make them broad minded thinkers. We
have to make them understand that sex is not a taboo and in 2020 it can be
talked about freely. We have to make them realize that wife is not a toy of her
husband and he cannot do whatever he wishes. Not only in developed nations like
USA but also in our country women are achieving great heights. women are now
world class doctors, astronauts, lawyers etc. then why are they stopping women
in their house from even expressing her free will to her husband.
And
to all the men who do such painful and torturing acts to their wife I would
like to ask a question, that WOULD YOU BE HAPPY IF SAME THING HAPPENED WITH
YOUR DAUGHTER OR SISTER? if your answer is NO, then it's TIME TO CHANGE.
In conclusion, Throughout India, marital rape is not fully
criminalized. It is undoubtedly a genuine type misconduct against ladies, and
worthy of attention from the government. Women who are assaulted by their
husbands are more prone to multiple assaults. In this particular situation,
marital rape is considerably more horrific for a woman because she has to stay
everyday with her attacker. It is high time we criminalize Marital Rape
in India. But it is not enough merely to declare a conduct as an offence. There
is need to do something else to sensitize the judiciary and the police. There
is also a need to educate the public about this crime, because the real goal of
criminalizing marital rape can only be accomplished if the society accepts and
questions the common misconception that rape is incompatible with one's spouse.
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