“It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished.
But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”
― John Adams
ABSTRACT
This article examines the complex legal and social dimensions of marital rape in India, highlighting the challenges in its definition, recognition, and prosecution within the legal framework. The analysis explores several critical issues, including the difficulty in distinguishing between consensual and non-consensual sex within marriage, the tension between conjugal rights and personal autonomy, and the potential for misuse of legal provisions.
Keywords: Marital Rape, Indian Law, Gender Justice, Conjugal Rights, Domestic Violence, Legal Reform
INTRODUCTION
Marital rape since time immemorial has always been looked through the patriarchal lens as a social evil but I question,
Where exactly is the term Marital rape defined?
Though it is not explicitly mentioned anywhere, in layman’s language it is understood as unwanted intercourse which is obtained through coercion, threat, or force by the husband against the will of the wife.
According to India’s National Crime Bureau Record, 28000 cases were reported in 2018, one rape case reported in every 18 minutes. But how many of these are exactly marital rape cases?
The question that arises is, Abinitio, is there even a concept of marital concept?
In certain cases, marital rape is covered under domestic violence literature.
In a sacred institution like marriage, it is difficult to recognize rape let alone acknowledge one, thus dissolving the idea of victimization.
Issues Involved
How will one differentiate between consensual and nonconsensual sex? This also probes the question of whether the right to privacy extended to marital relations? The Justice Puttaswamy judgement made it clear that Article 21, right to privacy, which is guaranteed to all the citizens of the country under the constitution of India, then why and exactly how does the state intend to investigate the matter without interfering into personal lives of both the parties involved.
Is reasonable interest for sex unreasonable? In which case it would amount to violation of conjugal rights. The Section 9 of the Hindu Marriage Act 1956, mandates restitution of conjugal rights wherein neither of the party without any reasonable justification cannot walk out of the relationship and must comply with each other. According to Schouler, “living in the same house, but willfully declining matrimonial intimacy and companionship, is per se a breach of duty, tending to subvert the true ends of marriage,” because the husband has conjugal rights. The line between assent and non-assent is so thin that even the courts can’t be too pervasive in nature, considering the violation of fundamental right to privacy under Article 21 right to life of the Indian constitution otherwise.
And what of those cases that cause a huge impact on the lives of innocent which they would carry because of the miscarriage of justice and because of the outdated laws in India hitherto.
Furthermore, this encourages/provokes the other party to succumb to adultery because this would deny him having sexual intercourse with his own wife and would leave him with the leeway to fulfill his sexual needs with someone else.
Judge Virendra Bhat in October 2013 said, ” Mere statement of a lady that she has been raped, is now taken as gospel truth, the accused arrested, and charge sheeted. This has led to an unprecedented surge in filing of false rape cases…It is these false cases which play havoc with the crime statistics, leading to the labelling of Delhi as a “rape capital.”
This would also give the wives an excellent opportunity to avenge their husbands by threatening them with a complaint against marital rape. Thus, misusing the laws and provisions such as the misuse of dowry laws.
The punishment for marital rape (if considered an offence) cannot be the same as that of rape because under Section 376 of IPC one of the descriptions of section 375 mentions,
‘With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.’
Section 375 exception 2 of the IPC states that, sexual intercourse, or sexual acts by the husband with his wife who is above 18 years is not rape. Why? The age limit is set because the wife would have attained the age of majority and would be able to make the right decisions for herself and her body and thus it is also implying as to why the age limit for marriage is set as 18.
Questions that Remain Unanswered
Should marital rape even be treated as a rape?
Is there even a concept of marital rape?
Can the husband be held guilty of outraging the modesty of his own wife?
Why do men not have modesty? – Is it a gender specific notion based on sexist approach? The word modesty is not even defined in the IPC (Indian Penal Code)
“No one discusses about the dignity and honour of a man as all are only fighting for the rights, honour, and dignity of women. Laws for protection of women are being made, which may be misused by a woman, but where is the law to protect a man from such a woman where he is being persecuted and implicated in false cases, as in the present case. Perhaps, now it is the time to take a stand for a man,” the Additional Sessions Judge Nivedita Anil Sharma said.
Given the existing case laws in India, there is none that protect men against domestic violence. Section 498A states that a man is held liable for exercising cruelty on his wife but not the other way around and if the allegations turn out to be false in nature the reputation of the husband remains tarnished. But if it’s the other way round, would the husband get legal relief? The stereotype of men being the powerful, authoritative, and dominative gender remains demolished in many minds. In the case of Johnny Depp V Amber Heard, in a lot of documentations and recordings presented by Mr. Depp’s lawyers it could be implied that he was abused as also presented in the pictures of Depp’s injuries. Thus concluding that even in an institution like marriage either of the party could be victimized.
In August 2017 the Centre said that the marital rape cannot be criminalized as it could destabilize the institution of marriage. Criminalization of marital rape would destroy the sacrosanctity in the marriage. In India, marriage is considered a sacred bond not a crime.
CONCLUSION
The laws should safeguard the interests of both the parties. Research shows that men often fall prey to false rape accusation cases. There is no denying that women do require laws for protection, but then this is no valid ground for not having necessary protection laws for men. Article 14 of the Indian Constitution guarantees the right to be treated equally then why should men be deprived of these rights? Article 15 of the Constitution prohibits discrimination on the grounds of sex, caste, class, colour or place of birth. Everyone has a right to life and liberty and therefore it is the need of the hour to ponder upon the matter and come up with gender-neutral laws.
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WRITTEN BY: DIYAA GOSWAMI
