“When a man defends marital rape so vehemently and refuses to accept it as a crime, it makes you wonder about the man.”
Marital Rape And Its Claws On India
The act of forcing your spouse to have sex without their consent is known as marital rape. By this method, women are disempowered and demeaned. In India, about 60-70% of rapes come under the category of domestic violence.
The actual definition alone can make the entire theory of marital rape unlawful. About 104 countries have already declared Marital Rape null and void. India is among the 30+ odd nations which have not yet criminalized marital rape.
Fun Fact
The JS Verma Committee and the UN Committee on Elimination of Discrimination Against Women strongly suggested making marital rape illegal way back in 2012 – 2013. Both the committees highlighted the fact that more than two-thirds of women in India between the ages of 18 – 50 years have been abused by their husbands. Shocking, isn’t it?
To understand this, let’s get down to the basics: Today’s law, as per the Constitution of India, directly implies that after entering into marriage, a wife is supposed to have given her husband eternal agreement to have sex. Marriage is said to be a contract that implies agreement for all future sexual activities perpetrated by men and husbands.
This is absolutely baseless and ludicrous. The institution of marriage has different customs and traditions corresponding to different religions but cannot be defined by a country as universal.
Do the lawmakers and judges remember that it’s the 21st century? “A man is a man; an act is an act; rape is rape be it performed by a man – the husband on the woman – wife,” Justice M Nagarprasanna.
The Decision Of Marital Rape By The Delhi HC: Inherent Negative Complications And Glitches
Rape is any non-consensual sexual activity. The rapist’s identity should not define rape; it is still rape if the rapist is the husband.
According to a recent Delhi High Court ruling, “legitimate anticipation of sex” does not imply that the husband should rape his wife. Sex on demand is not guaranteed by marriage or a relationship. Just because a woman consented to have sex with you previously does not guarantee she agreed to have sex with you in the future.
The Honorable Judge considers marital rape to be “sacred”. Sex may be sacred but rape, on the other hand, is illegal. Any denial of sexual access between the husband and wife can be grounds for divorce. It cannot be used to justify rape in any way. Women’s rights over their bodies do not end with marriage and are not transferred to their husbands.
Our courts have ruled that it is in the public interest not to punish marital rape for safeguarding the institution of marriage. An institution established on the crushing of women’s dignity and rights rather than mutual consent and respect can never be in the public interest.
Legal Power Of Marital Rape Which Ought To Be Expunged
The Constitution of India, in section 375, has defined rape as sexual assault and non-consensual sexual activity with a woman. However, Exception 2 to Section 375 decriminalizes marital rape.
Exception 2 to Section 375 has expunged unwilling intercourse between a husband and a wife over 18 years from the definition of rape. This is the loophole! This has to be immediately rectified. Judges in the past have used this very precedent to condone the husband performing such a dastard act.
Forced sexual copulation is an outright abuse of the fundamental right under Article 21 as well. Article 21 protects a person’s rights to health, privacy, dignity, safe living conditions, and a safe environment, among others. To note that the rights of the woman remain the same before and after marriage doesn’t require a lot of thinking.
Exception 2 to Section 375 also defies Article 14 and Article 15 of the Constitution of India. The venerable thinking that husbands are the rulers of their wives, their body, mind and soul should be entirely erased.
Conclusion
The Constitution is a living document. Hence – with immediate effect, lawyers, intellectuals and lawmakers on both sides of the political aisle should repeal Exception 2 to Section 375. In court cases like the State of Karnataka vs Krishnappa and Suchita Srivastava vs Chandigarh Administration, among others, courts have recognized that non-consensual sexual activities lead to mental and physical violence. At the same time, we should support human rights organizations fighting for this cause by either contributing or amplifying their voices.
Similarly, imagine a woman being raped umpteen times a day/week according to the whims of the husband, living with the husband and having no legal rights whatsoever in that regard. Isn’t that the epitome of things being morally and ethically wrong but having less to no legal backing? Such things should change. Ushering progressive and unique thoughts into the discourse always results in the development of the nation. So, I ask again – why isn’t marital rape illegal?