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To Criminalise Marital Rape, We Need Action Not Sympathy!

Nikitha Bommakanti

Representational image.

TW: Rape, assault.

Criminalizing marital rape in India is imperative. In simple words, marital rape is the husband raping his wife. What really bothers me is that these husbands are protected legally, as the law doesn’t make a husband liable for any punishment for this gruesome act. The law gives a ‘cold shoulder’ to married women in such cases, jeopardizing their lives.

Ultimately, the woman is being compelled to endure the pain inflicted by her husband. Are we ignoring the sorrows of wives? In this article, I will stress on the constitutional aspect of rape and the importance of criminalizing marital rape. As we proceed, you will comprehend the need to alter the exceptions under consideration of rape.

Guilty Of Rape Only If The Man Is Not Your Husband?

The husband is not punishable under Sec 375 of IPC, for raping his wife.

Section 375 in The Indian Penal Code:

Rape. — A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions: —

(First) — Against her will.

(Secondly) — Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(Fourthly) — With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.

(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation. — Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

(Exception) — Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Also read: Marital Rape In India: Without A Change In Mindset, Would A Change In Law Help?

This paradoxical exception of the section brews several controversies.

First, why is the age of the wife considered under 15 years of criteria? Isn’t it child marriage, Oh wait! Child Marriage is illegal in our country. Secondly, the Right to Equality, the Fundamental right as per article 14 is compromised. We do not provide the right to equality to married women, as per Article 15, Right to Equality. Talking about Article 15(1), it prohibits the state from discrimination against a citizen on grounds of religion, race, caste, sex, place of birth. Article 15(3) empowers the state to make any special provision for women and children.

Let’s take an instance

Suppose a family forces a 17-year-old girl to marry a man of 25-years against her will. The man rapes her. In this situation, she approaches the court for justice. Sadly, her request is ruled out by claiming the husband is punishable and charged with rape only when his wife is less than 15 years of age. 18 years is the legal age of marriage in India for women. So the husband shall be punished under the Child Marriage Restraint Act, but definitely spared the rape charges.

They ignore the demographic of wives in India for providing justice as per section 376. In such times the husbands become more arrogant, harassing women even more after she files a case.

“Without Consent,” Is Rape.

If the wife denies consent or the husband forces her as per the clauses mentioned under the rape section, the husband can’t be held accountable as a criminal.

Sexual Consent

If a person has sex with a woman against her will and without her consent it is considered as rape. Consent is the willful agreement and expressed mutual consent to have sex with the partner. Now, this doesn’t mean if you have been with someone earlier you are liable to accept having sex every time.

You own the power of acceptance or denial of engaging in sexual activity. Expressing consent is essential every time you get in physical contact with the person. And ‘No’ always means ‘No’. Silence does not convey your will, neither do the clothes you wear. “You ask for it,” by actually asking for it. It is of extreme significance for both the partners to be precise about this aspect. Forcing is not consent. Assuming is not consent.

RAPE

I am going to have sex with you, against your will.

I forcibly pushed the women into the washroom and got physical with her.

I threatened her to kill her entire family if she doesn’t have sex with me, and she straight away nodded to fulfil my sexual desire.

I deceived her by promising to get married and left her after contentment of physical needs.

I drugged her, and when she was unconscious; she accepted, but under the influence.

She is my 15-year-old girlfriend and expressed her consent to have sex with me.

But, if a husband commits all the points covered under the criteria with his wife, Indian law does not consider it as rape until and unless the wife is under 15 years of age.

Do Married Women ‘Withstand’ Rape?!

CONSENT

According to section 90 of the Indian Penal Code, consent is not such a consent as is intended by any section of this Code if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or

Consent of insane person if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or

Consent of child unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.
Women denying to have sex with her husband because of male dominance, if the partners force his wife against her will, is not considered as Consent. Section 375 includes against her will without her consent punishable as rape.

There were a total of 4,05,861 cases of crime against women, registered in 2019. The number reveals a 7.3% increase over the last years where the number of registered cases was 3,78,236. NCRB. After the new provisions were being introduced under the Nirbhaya Act, there was a spike in cases registered. After the act entered into force in 2013, people started learning about the law and registered cases when faced with atrocities.

The continuous escalation of registered cases also reveals the other side of the story, implying no transformation in society despite the existence of a vigorous law. Considering negligence as an aspect, there are abundant cases that go unseen because of failure or fear of women acquainted with the law. Rest, those who do register cases constantly fight for justice,

Men continue to exploit women. This has to stop, for which there’s an alarming requirement to expose criminals and the sections they are charged with. From the Nirbhaya case, to now the Hathras case, we know these women who have succumbed to death because of rape. But how many among us are actually aware of the criminals who commit such crimes? Expose rapists. Save lives.

But the husband would end the marriage if the women accuse him of rape. Yes, the husband may not wish to continue the marriage but that shouldn’t be the reason why women have to resist their problems. And if we look at the broader perspective in our society, women who aren’t willing to raise her opinion is well aware of the repercussions so she will ultimately decide.

For how long can a person endure pain in the name of marriage? And even if she is filing for a divorce, what if she wants to do it on the grounds of her husband raping her? As such law doesn’t exist she is compelled to accuse him of other charges. But, the point is, why would any women want to continue to endure pain and live with a person who brutally abuses her? I feel it is inequitable if the accused isn’t proved guilty of committing a specific crime because he is not considered a criminal as per law.

Also read: When Will The Indian Legal System Acknowledge Marital Rape As A Criminal Offence?

Sympathy Isn’t The Need Of The Hour, Action Is!

In our society, men dominate women, castigate them, mitigating them from claiming equality. The dominance of one person, caste, religion, gender, race is condemned, but reality echoes the opposite of all these.

We consider women sacred, in Mother Land, India. Respect and devotion of this sanctity are only confined to the temples. We worship the goddess to protect us from evils,

And make the daughters plead for mercy from sinister masked humans.

We accuse women who wear clothes of their choice for the endurance of horrible incidents,

But breakdown when women at our homes suffer the same plight?

You can force your daughters to cover her body,

But who is going to change the demon mindsets with malicious intents?

You become tight-lipped when your daughters talk about sexual violence,

But scream for justice when she gives up her life.

You shut doors on women who beg for help,

But except someone to help your daughter.

For as long as Patriarchy prevails, Equality departs.

The problem is with the societal mindset.

Families of women: He’s your husband! You should “adjust.”

 

Take action against injustice. Sign the petition to criminalise marital rape in India. http://chng.it/kXDVhrkj8Z

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