MARITAL RAPE Shajeeda Tajdeen Legal Article Tue, Sep 17, 2019, at ,11:17 AM Introduction: ‘Women’ and ‘Men’ have come a long way since the ancient era. Both the genders have had their equal share of changes in these years. With the advancement and evolution of the society, the status of both the genders has changed tremendously. Women now are enjoying their rights more independently and openly. Equality is actually being put into the application when it comes to allocating rights and privileges between men and women. No doubt the laws and society both have cumulatively played an important role in uplifting the status of women from different walks of life. But still, the harsh reality is the women even in the 21st century is considered to be vulnerable in front of a man, especially if that man happens to be her husband son or father. When it comes to these relations the status of the women automatically is put on a back foot and she no longer enjoys the authority of being equal. Behind the four walls of a house, a woman is still considered to be subordinate to her husband and father and this situation of a woman behind the closed doors of her house makes her vulnerable. No matter what position and status she enjoys in an outer world if within her house she cannot live as per her own wish and will then her status in the outer world is just a fake mask which can be tempered or harmed easily. It is sad to say and accept the fact that our legal system also has failed in certain cases to recognize the rights of women one such instance is of ‘MARITAL RAPE’ which is still not considered to be a crime in our country. Indian legal system has a huge definition of rape in its law books and time and again the definition of this term has been amended to meet the need of the changing society, but even while amending this law our framers have always given marital rape a miss. The logical reasons for which are still unknown. As per Section 375 of the Indian Penal Code (Act XLV) of 1860, rape includes every type of sexual assault. However, the Exception to Section 375 lays down that Sexual Intercourse or Sexual Acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. By excluding Sexual Acts by a man with his own wife, the Indian Penal Code itself protects such acts from being prosecuted. The husband who rapes his wife is allowed to roam freely when practically he should be prosecuted and punished like a rapist Marital Rape: Any sexual intercourse between husband and wife without wife’s consent is called Marital Rape. The act of cohabitation against the will of the wife is a heinous and shameful offense and this act cannot be excused merely on the grounds that it was committed by a husband on his own wife. The Indian society is very much patriarchal in nature believes that a wife is an asset of her husband owing to which the husband enjoys all the rights over her body as per his convenience. It is a well-accepted rule in our country that the wife has to satisfy the physical needs of her husband whenever and wherever he so desires. And this behavior and the mindset of the people does not allow marital rape to become an offense. Men mostly think that marriage is a license which permits to do anything with their wives and this license is backed by the society which is morally acceptable and thus there is no wrong in doing that activity because husbands even today are considered to be at par with Gods and God cannot do any wrong. If a husband holds his wife down, pushes her, or inflicts pain by hurting her in performing coitus against her will, it amounts to a sexual assault. It should be understood that making love is a mutual act which not only connects the body of man or woman physically it also brings them closer emotionally and mentally. If a husband pressurizes his wife to have sex with him by scaring her to cause harm to her in person or to the people or things she values, or if he comes to her in a barely contained rage, she cannot give her consent. Then in such a situation, the woman is forced against her will to agree with the demands of her husband in order to protect others from being harmed. Furthermore, husbands usually blame the wife for being inappropriate in bed, because of which he is forced to look for other means to satisfy himself outside the house, then in such situation, the wives are usually under the constant fear of losing her husband and her household and they agree with their husband’s atrocious demands. Similarly, if a husband intoxicates his wife or has sex with her when she is unable to give her consent for some or the other reason, then the consent obtained will not be truthful or valid because the wife is not in a state to rationalize her decision. In scenarios wherein the wife is not left with any other option but to give in or surrender to the demands of her husband then such a thing will also not amount to free consent and it will be an act of sexual offense. In all these situations the consent given by the wife is not free consent it is being manipulated, tempered and forced and thus, it should be amount to rape because forced consent is no consent at all. Causes Behind Marital Rape: The reasons behind Marital Rapes are: The economic dependency of women on their husbands and in-laws Traditional rules which require her to surrender irrespective of her choice. Widespread gender inequality, The Patriarchal set up of our Society. Lack of legal provisions Legal Position of Marital Rape: While countries like the United Kingdom, United States of America, Australia and Austria have already criminalized marital rape for up-lifting their women, there many countries like India who have still not criminalized marital rape as for instance, China, Singapore, Malaysia, Algeria. This delay in criminalizing marital rape is proof to the fact that India even today is tied up in the shackles of the outmoded and regressive legal system. It is high time that the people within the country realize that rape is a heinous crime which cannot be forgiven or overlooked at any cost if even it is done under the shield of marriage. Rape is rape and its gravity is not reduced by an ounce also even it is done by a husband on his own wife. It is not a personal crime which is committed against an individual it is against entire humanity and by excusing marital rape to be a part of rape is an act of injustice against all. Judiciary’s view: The Apex Court in Bodhisattwa Gautam v. Subhra Chakraborty stated that “rape is a crime against basic human rights and a violation of the victim’s most cherished of Fundamental Rights, namely, the Right to Life enshrined in Article 21 of the Constitution.” But on the other hand, it negated marital rape to be a crime. The Gujarat High Court in Nimeshbhai Bharatbhai Desai vs. State of Gujarat declared marital rape to be a disgraceful offense and while doing so it stated that ‘making wife rape illegal or an offense will remove the destructive attitudes that promote the Marital Rape’. Sadly, this judgment could not meet the ends of justice entirely because, under the Indian Legal System, marital rape is still not recognized, owing to which the Court declared that the husband is liable only for outraging her modesty and unnatural sex. The Hon’ble Supreme Court in Independent Thought vs. Union of India and Anr. made a partial attempt towards criminalizing marital rape by making sexual intercourse with a minor wife aged between 15 to 18 years an offense, but again it refrained itself from making any declaration regarding the Marital Rape of a woman who is above 18 years of age. Leaving the concept of marital rape of a major wife still under ambiguity or unanswered. Conclusion: It should be understood and accepted by all that wives are not mere assets of their husbands. They are individuals who have the liberty and right to decide for themselves and they can agree and disagree as per their own wish and will. They need not depend on anyone for anything let alone be their husbands or fathers or sons. Marriage is a sacred institution and it by no means gives permission to the husband to force himself on his wife. Unconsented or forced sex still remains a crime even if it takes place between a married couple. Sex should remain mutual and it should be enjoyed as a right and not as an obligation. It should be remembered that A woman does not give up her liberty to say a No, the day she gets married. Because like any other individual a married woman or a wife has a right on her body more than anyone else. Thus, there is an urgent need to criminalize and penalize marital rape in-order to truly empower women. If a woman does not have a right over her own-body then all the other advancement surrounding her are a waste. Apart from criminalizing, the masses should also be made aware of the repercussions of marital rape, because more than penalizing the act legally it is necessary that the outlook of the society changes towards it. marital rape should not only be considered as a crime legally but also morally and ethically. Marital Rape derogates the respect, honor, and dignity of a woman as a human being. It reduces her to a personal possession for slavery and pleasure, to a living corpse, under the fear of hurt and injury. Rape not only physically harms the body of the woman but it also has long-lasting consequences on her mind and soul. Hence, Criminalizing Marital Rape and bringing it at par with rape is the need of the hour to regain and uphold the sanctity of marriage.