This article is written by Pragya, a student of New Law College, BVDU, Pune.
Who is a woman? A woman is the most beautiful creation of the God. She is a mother, daughter, sister, wife and she has various other relations. She changes her name, leaves her family, gets pregnant, bears all the pain and is the mother of the child of the man to whom she gets married. She makes countless sacrifices throughout her life. She deserves to be respected by all the men. But sadly the situation of women in India is very ironical. India which is a country mostly of Hindus has failed to respect its women. On the one hand the Hindus worship the women as deities and on the other hand they subject them to innumerable forms of violence. The atrocity on women is increasing day by day. It is said that a country cannot progress without respecting its women. When will India realize that the time has come to unite against the violence to which the women are subjected and to eradicate them in all forms? Even the institution of Marriage which is considered to be so pious and so holy amongst the Indians is not free from violence against women. And who are these persons committing violence on them? Sadly these are her own HUSBAND and in-laws. The article throws light on one such atrocity against women and that is Marital Rape.
Marriage is an eternal union between two souls. It is made in heaven and it is celebrated on earth. It is an institution which admits two people in family life. Marriage as an institution in India is as old as the Indian Society itself. India which is mostly inhabited by Hindus considers marriage as a sacrament. It is a belief amongst Hindus that a man goes through four “ashrams” in his life i.e. brahmacharya or the Student Stage, grihastha or the Householder Stage, vanaprastha or the Hermit stage and sannyasa or the wandering ascetic stage. Without these stages the life is considered to be incomplete. Marriage does not only unite two people but also two families together. Wife is considered to be the “ardhangini” or the better half of the husband amongst the Hindus.
Marriages in India are governed by the personal laws. There is no unified law. People profess marriage in the way in which their religion states. But there has been regularization by the Legislature from time to time. Hindus are governed by the Hindu Marriage Act, 1955. In Muslims though the marriage is governed by the provisions of the Holy Quran but the registration of marriage is compulsory. The Christian marriages are governed by the Christian Marriage Act, 1872 and for Paris it is governed by Parsi Marriage and Divorce Act, 1936. Bigamy is a punishable offence under the Indian Penal Code, 1860.
Marriage as an institution in India has lost its importance in today’s era. The Patriarchal society and rigid mindset has led to various atrocities on women. There has been a rapid increase in sexual violence within the institution of marriage. One of such atrocities is “MARITAL RAPE”.
Now the question which comes into consideration is- “what is marital rape?” Marital rape or spousal rape is a kind of sexual intercourse without the consent of the wife. It is a kind of perversion in which she is physically and sexually abused. Marriage is thought as a license to do sexual intercourse and wife is considered to be submissive. She has to agree to whatever the husband says as she is married to him. She cannot protest nor deny it. It is considered that through marriage she has given herself completely to the husband and she cannot even exercise control over her body. This thinking has led to exploitation of women within the institution of marriage. And it is seen that this sexual violence within marriage goes unnoticed and unacknowledged.
The marital rape exemption can be traced to statements by Sir Mathew Hale, Chief Justice in England, during the 1600s. He wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.”
Sadly, there is no law in India to prevent marital rape. The Constitution of India under Article 15(3) empowers the State to make Special Laws for women and children but still marital rape is exempted under Section 375 of Indian Penal Code. Section 375 clearly stipulates that “Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape.” The time has come to amend this section and remove this exemption. Justice Verma committee and even the Hon’ble Law Commission of India has suggested reforms in the rape laws to include marital rape within its ambit.
Right to Life and Personal Liberty and Right to Live with Human Dignity are guaranteed to all the citizens under Article 21 of the Indian Constitution. Justice PN Bhagwati in Francis Coralie vs. Union Territory of Delhi it has been held that Right to live is not restricted to mere animal existence, it means something more than just physical survival. Exemption of marital rape is a violation of right to life and personal liberty and right to live with human dignity. Every woman has a right to be treated with respect and enjoy her freedom. She has a right to exercise control over her body. Just because she is in a marital relationship does not mean she has forfeited all her rights to life. She is an individual not a personal property which can be exploited for one’s own needs. It is also a violation of Right to equality.
Even International Law now says that rape may be accepted as the “sexual penetration, not just penal penetration, but also threatening, forceful, coercive use of force against the victim, or the penetration by any object, however slight.” Article 2 of the Declaration of the Elimination of Violence against Women includes marital rape explicitly in the definition of violence against women. Emphasis on these provisions is not meant to tantalize, but to give the victim and not the criminal, the benefit of doubt.
The argument by the Legislature that criminalizing marital rape will weaken the institution of Marriage is against the principles of justice, equity and good conscience. It is said that a strong building is made on a good foundation. What is the need to save such institution which is based on such kind of heinous crime?? Isn’t it denying justice to women who are oppressed and cannot raise their voice against their husband? The questions still remain unanswered.
Though the Indian Courts are doing their part through Judicial Activism but there is still a lot has to be done in this field. A nation cannot progress until and unless it respects its women. A victim of marital sexual abuse should be treated as a rape survivor, a trial court has held while denying bail to a man accused of sodomizing his pregnant wife. The court lamented that there were no laws to protect survivors of marital rape but said such a victim cannot be discriminated against just because she is the wife of the sexual aggressor. The time has come for India to accept “FEMINISM”.
It can finally be concluded that the protection should not be given to a person who rapes his wife as the wife is an individual person not the Husband’s property.
Marriage is an exchange of souls NOT transfer of property.
 AIR 1978 SC 597