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A NO means NO, and sex done without consent or with manipulated consent is rape ethically,and legally.
Rape is defined in Section 375 of the Indian Penal Code (IPC), 1860 as “sexual activity with a woman without her consent, against her will, by coercive power, misdirection, or deception, or at a period when she has been intoxicated or duped, or is of mentally unsound, and in any case, if she is a minor that is below the age of 18”.
But there is an exception to the above section which bars criminalization of marital rape.
Exception 2 to Section 375 of the IPC – the section that defines what the offence of rape is – says:
“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
Therefore, it is not a crime as per Indian laws if one does intercourse with his wife without her consent or forces himself upon his wife for carnal pleasure. At least not so in India and approximately 150 other countries. There is no criminal law provision to punish people who rape their wives.
Should there be marital rape law to punish the culprits?
Ideally, it should not even be a question, but since there is no law, a discussion on the topic with different perspectives may give insights if such laws should be made or not.
Any use of force to do sex with any woman without her consent, including one’s wife, should be considered a crime legally. The use of force is nothing but the infliction of violence on someone’s soul and body.
Therefore, anyone who claims that a man has the right to sex with his wife with/without consent is denying the basic premise of marriage, and hence,the act becomes a crime by default even when it’s happening inside a marriage.
Has the time for the criminalization of marital rape arrived in India?
There has been growing support from gender activists for the criminalization of marital rape. But it’s also widely opposed by a large section of society. Most of the arguments opposing criminalization are scaffolded on the sanctity of the marital relationship and unity of souls post-marriage. The unity of souls social concept is getting diluted rapidly with increasing individualism and independence of women,and it augurs well for families to see wives as a distinct personality rather than chattel to her husband.
There are already many provisions that can be used by a victim to punish the accused, namely the Domestic Violence Prevention Act and laws related to cruelty. Filing for divorce is another legal recourse available.
One of the biggest challenges in implementing marital rape law is the onus of proving it. In absence of visible scars and bruises, it becomes tough to prove rape within a marital relationship.
Most of the evidence which can be used in courts in case of rape by strangers becomes irrelevant in case of marital rape, such as DNA/semen samples. So the only evidence in the case of marital rape can be the statement of the victim, leaving wide scope for the law to be misused and break the institution of the family.
Unlike western countries based on the principle of individualism, Indian society is based on collectivism, and any law which can create anarchy in the family system should be seen with extra caution.
When it’s tough to prove it, it brings women to the doorsteps of the highly inefficient and patriarchal criminal justice system which opens the door for further economic exploitation by lawyers. This may prevent dependent wives from approaching the courts and the law will be accessible only to the economically elite. Lower conviction rates in India in gender-related crimes add salt to injury. Snail-paced judiciary only worsens the scenario.
Instead of emancipating the victim, the system may end up harassing her incidentally. Until and unless the rot in the Indian criminal justice system is not done away with, marital rape law may not be a great idea.
To sum up, while marital rape law is needed urgently, it should be preceded by reforms in the criminal justice system to prevent misuse of such laws and for quick delivery of justice to the victims instead of worsening their ordeals.
Solution
The solution to the marital rape menace has to come at the family and societal level. Families need to sensitize males since childhood and teach them respect and trust towards life partners. Objectification of women at social-cultural levels needs to be opposed. These issues need to be openly discussed and addressed at the family level rather than bringing it to the doors of the state affecting the privacy of both the wife and the family at large.
Society at large in India does not consider marital rape as a real rape. Because sex is considered to be the right of the husband, it is the duty of the wife to oblige her husband with carnal satisfaction, and in case of denial, use of force by husband is not seen as unethical. What families and the society neglect is individualism and self respect of a woman, right to her body even after her marriage, and the mutual respect on which spousal relations exist. This denial of rape within marriage provides social and cultural sanctity to sex without consent between husband and wife. Most of the victims do not even see themselves as victims because of the cultural sanctity. Therefore, the families and society need to do away with this thought process and acknowledge marital rape as a social problem before the law forces them to.
Acknowledgement at family level followed by redressal will prevent the state from stepping into the bedrooms, and hence, preserve the sanctity of marital relations and privacy of families.
It’s too late,but not yet too late.
Let’s not forget that the system out there is patriarchal, and with an inefficient justice system, things become worse for victims.
The zeal for justice should not blind us to the harsh realities of the justice delivery mechanism in India. Justice should be the ultimate goal, but there should be surety of justice being done.
Silence is not the solution, and courts are not the only option to get justice when it comes to marital issues.
