Marital Rape in India – Issues and Way Forward | UPSC Notes

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Marital Rape in India – Issues and Way Forward

Marital Rape — Criminalise or not?

In India —

  1. Marital Rape is NOT defined in any law or statute. — No formal recognition 
  2. Section 375 IPC that defines rape also says sexual intercourse by a man and his wife aged 15 (now 18) years or above is not a rape even if it is without her consent.                     SC has struck it down!
  3. Section 376B deals with sexual intercourse by man with his wife during separation.
  4. Issue — Rights activists want it to be made a criminal offence, saying it forces women to suffer the worst form of sexual violence in their homes. They want to declare both the Section 375 and 376B of IPC as unconstitutional.

2.6 billion women live in a country, including India, where martial rape is not a crime. Even in US, cases of martial rapes are treated differently from other forms of rape.

  1. Post the 2012 Nirbhaya’s case — amendment to the criminal legislation in India was made — it dealt with the ‘definition’ and ‘punishment’ of rape.
  2. However the exception for the Martial rape was retained — despite the recommendations by Justice Verma Committee.
  3. Delhi HC also directed the inclusion of martial rape under the existing rape laws. But government rejected this.
  4. If Domestic Violence means “fracturing of skull, breaking of spine, injuring liver” then on what basis does it exclude “forceful penetration of vagina”? What women is objecting here is the violence involved.

International Experiences

  • Even US where martial rape is criminalised — shows that despite changes in the law, the patriarchal notion that marriage override the legal and sexual autonomy of a women STILL EXIST! Half of the states still treat martial rape differently from other rapes.
  • In 2015 — Trump’s Counsel expressed ignorance about the legal possibilities of man raping his wife —“You cannot rape your spouse!” — he later corrected himself but the bigger question here is that why he made this error — patriarchal attitude embedded into the personality?
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Way forward

  1. Facilitating access to justice for victims — focus on preventive measures.
  2. UN on its study about the Asia-Pacific violence suggested to work on the structural factors that prevent the incidence of rape.
  3. As gender socialisation begins young, the study also speaks of the need to focus intervention on children and adolescents — through proper family and societal institutions, popular culture and media.
  4. Psychologists have found out that the home environment contributes to violent, anti-social behaviour of the child.
  5. We need to work with children, parents and larger community to ensure martial rape is condemned and not condoned.

Centre’s stand before Delhi HC

Criminalising martial rape may destabilise the institution of marriage and would become an easy tool for harassing husbands, a position slammed as retrograde by the tights activists.

SC and HC had already pointed to the misuse of the Section 498A of IPC that prescribes punishment for husbands for subjecting his wife to cruelty.

If all the sexual acts by a man with his own wife qualify to be marital rape, then the judgement as to whether it is a martial rape or not will singularly rest with the wife, adding there could be no lasting evidence of such acts between a man and his own wife.

Petitioners’ stance before Delhi HC

Marriage cannot be viewed as a license for husbands to rape his wife with impunity and a married woman has the same right of all control over her body as an unmarried woman.

A reference was made to Judgements of the foreign countries, mostly western ones, where martial rape is a criminal offence.

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Centre said — India does not necessarily need to follow west blindly. (Gandhi’s quote)

This country has its own unique problems due to various factors like literacy, lack of financial empowerment of majorities of females, mindset of the society, vast diversity, poverty etc and these should be considered carefully before criminalising martial rape.

Critical Analysis

How far is it justified as a “happy conclusion” — the order given by the judges suggesting to marry the rape victim with the rapist — this subconsciously means that forced sex does not amount to rape if it takes place within the marriage.

What we are witnessing as of now is the problem of India being in the Transitional Stage — where the Dilemma rises to choose the right balance between Traditional and Modern concepts. India presently is at a critical point of time, when, Traditionality meets Modernity.

At such times, such problems are bound to happen. There is no one party right or wrong in such situations. Both the parties have their legitimate concerns and worries to be taken care off.

Already we are witnessing increasing cases of abuse of the laws pertaining to the Dowry Act by the ‘modern Indian woman’ to exploit many a times innocent husband and his family. Already SC is looking into this matter and suggesting establishing Family Welfare Committees to look for the legitimacy of such allegations. Now if martial rape is being criminalised — such cases of exploitation of innocent husbands in the lieu of extracting money and ‘revenge’ may rise.

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What we need it social justice to follow and this needs empowerment of women, social awareness among men. Everything cannot be taken care by the Civil Laws, some things are so intimate that need to be tackled at the personal level at the social and moral righteousness. Not everything can be written down and not everything can be regulated by the state.