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Why Criminalising Marital Rape Is Crucial For Gender Equality

By Madhu Samarpita:

Change is an inevitable process. Moving with the pace of change is necessary for survival. However, the absence of legal safeguards regarding marital rape under the Indian Penal Code (IPC) means that we are not moving ahead with the times. There has been no development ever since marital rape was mentioned in Section 375. Sexual intercourse between husband and wife is not considered rape, unless the girl is less than 15. Various laws have been enacted to deal with sexual offences, laws have been amended as well, but marital rape has still not been criminalised.

Marital rape should be an offence. By virtue of getting married, a woman’s husband possesses the right to force himself upon her and establish sexual relations against her wish and consent. This act of forced sexual intercourse by the husband against the wishes of his wife, if the girl is not under 15 years of age is not considered marital rape. It has not been recognised as an offence till date and isn’t punishable by any court of law. Thus, marital rape today has become a topic of huge debate in India and attempts are being made to criminalise it and make it punishable.

It is often said that where women are worshipped, goddess resides. In a country like India where women are worshipped and with the passage of time where women have marked their presence in almost all fields, a heinous crime like rape within an institution like marriage creates a paradox. It is inhuman and violates the basic human rights and other fundamental rights which have been guaranteed by the Constitution of India. Article 14 of the Constitution of India establishes equality before the law and equal protection of laws. But, denying a married woman the basic right of refusing to have sex with her husband blatantly contradicts her fundamental right to equality. Article 21 of the Indian Constitution provides her with the right to have protection for her personal liberty. However, section 375 of the IPC makes it clearly evident that these rights are not available to a married woman. It seems like Indian jurists and lawmakers have a different approach while providing rights to a married woman when the question of rape by her husband arises.

Marriage in India is considered to be a divine institution and sex is an expression of love and bond that a husband and wife share. But marriage can only be successful if there exists a mutual respect for each other’s rights. This becomes possible only if the boy and girl are of an age when they are capable of understanding something like marriage. Taking all this into account, the Prohibition of Child Marriage Act, 2006 was enacted. It prohibits child marriage and makes it punishable. A marriage in which either the girl or the boy is underage. Under this Act, the legal age of marriage was raised from 15 to 18 years for girls and from 18 to 21 years for boys. If the man is above 18 years of age at the time of marriage and marries an underage girl, he will be treated as an offender and can be punished. Thus, a girl getting married at the age of 15 years makes the marriage void and the husband liable to punishment. Keeping the above provisions in mind, the fact that no changes have been made to section 375, which doesn’t criminalise marital rape, is a glaring paradox. One law prevents a girl below 18 years from getting married, while another doesn’t criminalise rape against a married girl who is above 15 years. Getting married and having sexual relations at the age of 15 or below may be harmful for a girl. A study claims that consequences of having physical relations at a young age may lead to adverse health problems in the future.

Various other provisions have also been created for offences related to sexual assault under the Criminal Law Amendment Act, 2013. The reason behind the exclusion of marital rape from being considered a sexual offence in the Criminal Law Amendment Act, 2013 is that recognising it as a crime would go against the traditional family system and cause ‘irreparable damage’ to the institution of marriage. In India, by virtue of getting married, a woman’s consent to the act of sexual intercourse with her husband is presumed. And the wife cannot refuse to have sex with her husband unless she is less than 15 years of age. Hence, even after amendments have been made to the IPC, a very narrow approach is taken while looking at marital rape and protecting a woman from the act of rape by her husband.

Marital rape today has become a matter of concern and it requires serious attention from our lawmakers and the judiciary. Marital rape has been made criminal in many countries. Many women’s rights organisations have been advocating and raising their voice to make it a criminal offence. The Domestic Violence Act, 2005 was made a part of the Indian Constitution and it recognised abuses against women. But it does not have anything about criminalising marital rape. Marriage is a bond between husband and wife. The wishes and choices of each other must be respected. A marriage of forced relations and compulsion destroys the relationship itself. Hence, marital rape should be criminalised in India. The judiciary and the state need to a play an active role in providing protection to women against such inhuman acts and help her in exercising her rights to which she should be entitled. The law is a dynamic process and changing the law as provided under section 375 and making marital rape a criminal offence has become the urgent need of the hour. The Prohibition of Child Marriage Act, 2006 is a special law which should be allowed to prevail over the provision of section 375 of the IPC in order to establish equality between men and women. It will give women the right to live with dignity and respect.

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