To our amazement and disbelief, the growing societalexpectations of masculinity in India are not only destroying the most sacredinstitution of marriage but also the self-worth of women in general. It’sbecause the majority of sexual violence is consistently reported within themarital relationship.
The issue of marital rape appears to be institutionalizedwhen the wife is forced to have sex without her consent under the pressure ofmasculine honor, threat and manipulation. The marital rape is having seriousoutcomes. First, it takes longer time for a wife to recover from the trauma ofsexual violence by her own husband. Second, there is higher likelihood ofrepeated assaults against her. Third, there is more pressure to stay withperpetrator against her will. Fourth, it brings negative effects on children inthe household. Ironically, there is no law which allows wife to press chargesagainst the sexual violence of husbands. Despite the recommendation of VermaCommittee, Judiciary and Legislature are categorically rejecting the demand ofdeclaring this form of intimate violence as rape.
Are the wives legally ownedby the masculine partners? Are they not entitled to refuse to have sex withtheir husbands? Will the attempt tocriminalize marital rape destroy the institution of marriage? While exploringthese questions, researchers aim to argue for incorporating marital rape withinthe ambit of IPC and devise ways to identify and prove the denial of sex inmarriages as rape and thus a heinous crime. Introduction Today,intimidation and physical force of a man on his wife has dominated herresulting into forced sexual relations. It is considered as a concept that isdifficult to comprehend by the members of the society. The actions of husbandon his wife should be defined as rape when she is forced to have sexualrelations with him considering it as a part of marital obligations andconsidering marriage as a free pass to have sex. There are instances where sexual intercourse was forced on a wifeby her husband.1 Marital rape is not a crime and wivesare not getting the same protection as women who are not married to theirrapist. Indian legislature does notdefine marital rape as crime and the husband is not defined as married to hiswife if they are separated.2 Generally, women are the victims of twocrimes, namely sexual assault and physical abuse by their husbands.
In thecriminal system, these couple of crimes against wife have been the mostunreported. When the victims knock the door of our legislature for assistance,they show them the exit door and are maltreated by the police. They let herenjoy the victimisation. Legal definitions of rape vary from state to state andit involves three separate factors: vaginal penetration, sexual intercourse or”carnal knowledge”; force or threat of force; and no consent of the victim.3 Complication within the definition ofrape arises by the fact that forced sex is not considered a crime in marriagebecause of its sacrosanct relationship. Some men appear to be sexually arousedby violent actions, and sexual relations often follow violent incidents.4We can see that even today our society isfollowing the old norms and show that women cannot have a personality of herown because of certain inherent weakness, it is given in Vedas and in oldliteratures which show the subservient position of women.
In Hinduism, Smriti lawsSaptapadi is given that means seven steps whichincludes each step for food, strength,wealth, friendship, sex,offspring and happiness which is lead by the men.If a woman is raped by her own husband sheconfronts so many that leave numerous negative impacts on her. She faces mentaltrauma that she has been raped by the one with whom she is going to stay forher whole life as there is a betrayal of trust.
She cannot share her pain toanyone because our society does not consider it as a rape and don’t allow thedenial of sacrosanct institution of marriage.Marital rape victimsface repeated aggression which may include physical assault also. There can bea full ownership of female by her husband as wives are considered “asset” of aman or as legally owned entity that gives him free pass to have sex. Societydoes not take it as a rape and in our society marriage is a sacred institution,she has to stay with perpetrator because of the societal norms.
All thesethings affect the children of that family as from the very childhood they hadonly seen violence which shapes there mind and their lives are severely affectedby it.The rape may be seenas a result of incompatible sex that drives more general forms ofincompatibility.5Marital rape is a major problem that is prevailing in our country because theyare mostly unreported because sometimes women don’t know that whetherunconsented sex is a rape or not which can be seen by the response of legalsystem also, they take it as a part of marital life. Institution of family isalso damaged by marital rape because it affects all the members of family thatis wife, husband and children. Indian society considers marriage not only aknot between two individuals that will be remaining tied throughout the life,but also marriage between two families.
Generally marital rape is accompaniedby physical violence which hurts the belief of children and they become emotionallyhandicapped and affect their upbringing as their minds are shaped and affectedby violent circumstances. Here the question arises that if women wantgender equality can she be in sexual serfdom? Who does her body belong to? Doesshe have the right to make choices? The society answers that it is herhusband’s named tattooed which is accompanied by Mangalsutra and Sindoorthat traps her to traditional barricades. Unless she deconstructs herselfcertainties will drive her towards the graveyard. Justice Verma Committee ReportThere is a lacuna inlaws which depicts the ignorant and pathetic thinking of judiciary andlegislature; as it is given in IPC section 375 has an exception which statesthat ‘sexual intercourse or sexual acts by a man with his own wife, the wifenot being under fifteen years of age, is not rape’; this exceptionshould be removed and it was recommended by Justice Verma Committee. In ourcountry, to address the issue of marital rape there is a need of stringent lawson the issue of marital rape in India and it was suggested by Justice VermaCommittee that marital rape should be considered as an offence in India, marriageshould not be considered as an irrevocable consent to sexual acts. By the abovementioned section we can imply that our society does not considered that a wifecan be raped by her own legal husband.
There is no existence of non-consensualsex in the institution of marriage. It was said by The Justice Verma committeereport, when married women are denied to a right to consent then it reducesthem to ‘no more than the property of their husbands.’ It was said that”Marriage should not be considered as a binding consent to sexual acts.Therefore, with regards to an inquiry about whether the complainant consentedto the sexual activity, the relationship between the sufferer and accused shouldnot be important.
“6 Itwas recommended by the committee non-consensual penetration of a sexual natureshould be contained in the definition of rape. . Therefore, withcognizance to an inquiry about whether the complainant consented to the sexualactivity, the relationship between the victim and the accused should not berelevant. Law Commission ReportThe 42ndLaw Commission Report The 42nd Law commission Report(1972) suggested that marital rape should be criminalised however actions werenot taken place as the 84threport (1980) was not in favour of thecriminalisation. Yet it negates this very pronouncement by not recognizingmarital rape”. The concern was again bound up by the Law Commission of India in2000 but the efforts were deficient.
In section18.104.22.168 of 172 Law Commission Report, it was said that the commission cannotaccept the recommendation made by representative of Sakshi in the case ofSakshi v. Union of India and Others, 2004 that exception of section 375 of IPCshould be deleted as it may amount to excessive interference with the maritalrelationship.7Evenit is not deleted on the recommendation of Justice Verma Committee Report andthe reason given by legislature and judiciary is that they don’t want to breakthe institution of marriage whileignoring atrocious emanation of non-consensual sex.
‘Sexual assaulton any part of the body should be construed as rape”8, it was also recommendedin Law Commission Report. As per itsguidance, it stated that ‘Sexual intercourse as contained insection 375 of IPC should include all forms of penetration such aspenile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal.1 Richard J.
Gelles, ‘Power, Sex and Violence: The Case of MaritalRape’ Oct., 1977, 3392 Indian Penal Code1860 s 376(A)3 Irene Hanson Frieze, ‘Investigating the Causes and Consequences ofMarital Rape’ 1983, 5324 M. Faulk, ‘Sexual Factors in Marital Violence’ Oct. 1977, 30-38 5 Supra ( n 3)6 Report of the Committee on Amendments to Criminal Law, Justice J.SVerma, January 23, 20137 172, LawCommission Report, March 25, 20008Sakshi v. Union of India and Others 2004 (5) SCC 518