"Marriage is an obligation of trust, regard, and love". Marriage is a sacred foundation – a coordinated effort of two people".
It plays a vital role in forming the social foundation. That is the reason no society permits a couple to discreetly live as husband and wife. Marriage brings various commitments and advantages influencing numerous individuals. Each society has its rule and custom for directing relationships. As per marriage, the main step is the selection of partners. Even though there are no such criteria laid down for choosing their partners. Marriage comprises the "rules and guidelines which characterize the rights, obligations, and advantages of a couple, as for one another." This is the brightest side of marriage that everyone loves to hear but what about the other side of this.
It is wisely explained by Edward Westermarck that "Marriage is the more or less durable connection between male and female lasting beyond the mere act of propagation till after the birth of offspring.” It is a contract for the production and maintenance of children. Marriage is a sacred relationship to cohabit together but it never gives a license to rape. Approval from the couple to have sex helps keep up the scared idea of marriage with dignity and regard. When consent is not taken, it results in Marital Rape or Spousal Rape. The act of forcing a spouse into engaging in sexual relations without appropriate consent is an unjustified approach to disrespect and hurt women.
The lack of approval is the essential element of marital rape. It is considered a form of domestic violence and sexual abuse. one of the most frightening and harsh issues with the Indian legal system is that marital rape is completely legitimate. In India, the concept of marital rape is the embodiment of "Implied Consent" which infers that both have agreed to sex. Marital Rape is broadly experienced by ladies and it is regularly an ongoing type of brutality on the victim which happens inside oppressive relations. Marriage is often used to legalise a range of sexual violence against women. In India, rape is an offence under section 375 & 376 of the Indian Penal Code, 1860 but shockingly marital rape is not an offence and it is not included in the ambit of rape. The male-centric society has continually considered women as irrelevant property of her life partner. Hence, such assault is not considered a crime. This framework has affected our legislature and rejected the idea of the offence of spousal rape.
Do we need strict laws against Marital Rape?
Around 150 countries in the world have criminalised such offences but India ranks among the rest of the world 36 countries where it is not yet penalised.
Marital Rape is not just brutality against women yet rather a grave encroachment of an individual's fundamental right to life and individual opportunity. Thus it is not correct to believe that sex is a spouse's advantage given to him by marriage. Social shame related to spousal assault is utilized by him to break her trust and individual constancy. It has been exhibited that, marital rape is more horrendous with longstanding outcomes: physical as well as mental. In this way, conjugal protection from a spouse has been criminalised by many countries. By not criminalising such an offence our state is falling flat in its commitment to ensuring sex parity that incorporates security from wrongdoing and maltreats.
The facts of spousal rape are increasing at the worst rate. Around 66% of women have experienced sexual assault when their husband was drunk. A report by NCRB that about 70% of women are victims of domestic violence, the latest survey of 2015-16 stated that 5.4% of women experienced marital rape but the government denies the survey. These data were laid down by the National Health and Family Survey (NHFS-4). It was estimated that 99.1% of cases are unreported.
Section 375, defines Rape (IPC), specifies as its exception provision "Sexual intercourse with his wife, the wife not being under 15 years old, isn't rape. " according to Section 376 of IPC, which describes the punishment of rape, the offender should be rebuked with the confinement of 7 years which may extend to life imprisonment or for a term extended to 10 years. The offender is at risk of a fine unless the woman he assaulted is his life partner, and is not under 12 years of age, in such case, he is punishable with the confinement of 2 years with a fine or with both.
Subsequently, martial rape is seen as an assault just if the spouse is under 15 years of age, the punishment will be milder as compared to others. There is no legitimate security granted to the spouse after the age of 15, which is against the basic fundamental rights. There no law to handle the mishappening of marital rape and to safeguards women from sexual violence those who are above the age of 15.
In the year 2013, the Justice Verma committee suggested the removal of this exception finding it violative of the fundamental rights. Luckily, in November 2017 a bench of the Supreme Court of India, based on Independent Thought v. Association of India case laid down Exception 2 to Section 375, IPC as being violative of Article 14 and 21 of the Indian Constitution.
The Protection of Women from Domestic Violence Act, 2005 comprises the sensible common solutions for the violence against ladies which incorporates marital rape as well. Having sex without approval can be expressed as an infringement of dignity and, hence, can be considered a criminal offence. The demonstration considering this infringement as a common offence has been furnished with not many civil remedies like fine, protection, etc.
In the case of Nimeshbhai Bharatbhai Desai v. the State of Gujarat, 2018 SCC.
The question was put before the court that a husband forcing his wife to indulge in oral sex will amount to rape. In this case, the court discussed three types of marital rape :
● Battering Rape
● Force only Rape
● Obsessive Rape
Marital rape has still not been criminalized in our country because the Parliament is in constant fear that it might destabilize the foundation of marriage. A deceitful spouse may utilize it as a weapon to torture her better half by filing bogus compliant and unimportant protests against him. Marital Rape cannot be overlooked due to this dread. Indian laws give women the privilege to life and freedom, however not her body, inside her marriage. The irony is that assault by his spouse would be comprised as an offence under the IPC however if a similar husband pressures his wife to have sex, he would be responsible for the assault yet not for an offence of rape simply because there is a legitimate marriage.
The Indian government maintains peace and order in society. They enact many laws and legislations for the same. Yet they lack in enacting laws related to marital rape which is a heinous crime against women. India needs strict enactments against such crime.