Is Marriage is a license for Rape?

Get ready to have sex, because that’s what a “good wife” does

No matter, she wanted to or not.

I was born women but rented out to satisfy you.

Words “I love you” sometimes smells like; I will rip your soul apart from my hunger.

Your pain, your agony is not my concern; Just keep your mouth shut.

Rape? Oh! No, I bought you and your body officially; Society called it “Marriage”.

No, is a No, why it is taken for granted?

Marriage is not a license for Rape.

In India, marital rape is not defined in any statute or law. Women’s rights activists have moved the High Court seeking to make it a criminal offence. For years, women’s organizations have been demanding that the rape of a woman by a husband should be recognised as a criminal act that carries penalties. But there are many people who believe that marital rape is not suitable to the Indian context due to various factors like level of education, illiteracy, poverty, social customs and values, religious beliefs, mindsets of society to treat the marriage is a sacrament. In India, marital rape exists de facto but not de jure. While in other countries either the legislature has criminalized marital rape or the judiciary has played an active role in recognizing it as an offence.

Marital Rape is the act of sexual intercourse with one’s spouse without the spouse’s consent. It is a form of domestic violence and sexual abuse. Women’s organizations have sought that section 375 (a law that defines rape) of the Indian Penal Code, should be declared unconstitutional, arguing that it discriminates against married women being sexually assaulted by their husbands.

There are principally three kinds of marital rapes:

Force-only Rapes- The husband uses only enough force to coerce the wife to intercourse.

Battering Rapes- Women are raped and simultaneously battered by their husbands- beaten, slapped, pushed, shoved etc. In battering rapes, women experience both physical and sexual violence.

Sadistic/ Obsessive Rape- These involve torture and/or other perverse sexual acts. Pornography is frequently involved in sadistic forms of rape. 

Section 375 has an exception provision which states that the rape will not apply to assault or sexual intercourse by a husband on his wife who is above the age of 15 years. Although, historically sexual intercourse within marriage was regarded as a right of the spouse, engaging in the act without the spouse’s consent is now widely recognised by law and society as a crime.

Sir Matthew Hale, C.J., in 17th century England. Hale 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, which she cannot retract.” 

This established the notion that once married, a woman does not have the right to refuse sex with her husband. This allows husbands rights of sexual access over their wives in direct contravention of the principles of human rights and provides husbands with a licence to rape; their wives. Only two groups of married women are covered by the rape legislation those being under 15 years of age and those who are separated from their husbands. While the rape of a girl below 12 years of age may be punished with rigorous imprisonment for a period of 10 years or more, the rape of a girl under 15 years of age carries a lesser sentence if the rapist is married to the victim. 

The issues of sexual and domestic violence within marriage and the family unit, and more specifically, the issue of violence against women, have come to growing international attention from the second half of the 20th century. Still, in many countries, marital rape either remains outside the criminal law or is illegal but widely tolerated. In 1993, United Nations High Commissioner for Human Rights published the ” Declaration on the Elimination of Violence against Women”, which establishes marital rape as a human rights violation. Despite these trends and international moves, criminalisation has not occurred in all the UN member states.

In the present day, studies indicate that between 10 and 14% of married women are raped by their husbands: the incidents of marital rape soars to 1/3rd to ½ among clinical samples of battered women. Sexual assault by one’s spouse accounts for approximately 25% of rapes committed. Women who became prime targets for marital rape are those who attempt to flee.

Marriage does not thrive on sex, and the fear of frivolous litigation should not stop protection from being offered to those caught in abusive traps, where they are denigrated to the status of chattel. Apart from judicial awakening; we primarily require a generation of awareness.

“All marriages are sacred, but not all marriages are safe”

Despite cruelty being defined, several times, in such broad sense and the grounds for divorce being demarcated into such broad areas, marital rape fails to feature in any of these theories with respect to the Personal Laws in India- neither of Mohammedan Law, Hindu Law, Christian Law or Parsi Law- includes marital rape into the grounds for seeking a divorce.

The judicial interpretation has expanded the scope of Article 21 of the Constitution of India in the case of Bodhisattwa Gautam v. Subhra by leaps and bounds and “right to live with human dignity” is thus, within the ambit of this article.

Marital rape clearly violates the right to live with dignity of a woman and to that effect, it is seen that the exception provided under Section 375 of the Indian Penal Code, 1860 is in violation of Article 21 of the Constitution.

Some progress towards criminalizing domestic violence against the wife took place in 1983 when Section 376-A was added in the Indian Penal Code, 1860, which criminalized the rape of a judicially separated wife. It was an amendment based on the recommendations of the Joint Committee on the Indian Penal Code (Amendment) Bill, 1972 and the Law Commission of India. The Committee rejected the contention that marriage is a licence to rape. Thus, a husband can now be indicted and imprisoned up to 2 years, if

  1. There is sexual intercourse with his wife,
  2. Without her consent and
  3. She is living separately from him whether under decree or custom or any usage.

In India, the Protection of Women from Domestic Violence Act 2005 (passed August 2005; entered into force October 2006) criminalizes marital rape as a form of domestic violence, and therefore attracts a lesser jail term than non-marital rape. This is the only form of penalizing marital rape in India, and it is a civil remedy and not a criminal act.

While getting married under any religion, may it be Hinduism, Christianity, Islam or any other religion practised across the nation, certain vows are exchanged- about trusting each other, living for each other with respect protecting each other’s dignity and never compromising on the sanctity of marriage. Marriage is not just an institution, it is solemnizing of coming together of two persons. And under these circumstances, protecting the interest of the parties to a marriage is imperative.

Marital rape is no less an offence than murder, culpable homicide or rape per se. It denigrates the honour and dignity of a human being and reduces her to a chattel to be utilized for one’s self convenience and comfort. It reduces a woman to a corpse, living under the constant fear of hurt or injury.

When it is the person you have entrusted your life to who rapes you, it isn’t just physical and sexual assault, it is the betrayal of the very core of your marriage, of your person, of your trust; speak up against marital rape. Criminal law cannot turn a deaf ear towards the injustice and inhumanity perpetrated in society. It must interfere and impose the stamp of criminality to unlawful acts that occur, irrespective of the fact as to whether such recognition bears the desired fruits. Complaints against marital rape may be few, yet it is of utmost necessity that the law declares it to be a penal offence.

The infamous case of Phulmoni Dasi wherein an eight-year-old child died of excessive bleeding due to sexual intercourse by her husband who was in his mid-thirties at the time. But the husband was convicted, not for rape, but for ‘causing grievous hurt by doing a rash and negligent act dangerous to life’ with one year of imprisonment.

The following two points from the judgement help analyse the general attitude towards marital rape and how it is relevant even now. 

“The branch of the law which has no connection with this case is the law of rape.”

“The law, it is true, is exceedingly jealous of any interference in matters marital, and very unwilling to trespass inside the chamber where husband and wife live together, and never does so except in cases of absolute necessity.”

The lawmakers must realize that if the sanctity of the Constitution is to be maintained, the dignity and honour of the women must be vindicated. The fundamental duty of every citizen of India to denounce practices derogatory to the dignity of women as well as to value and preserve the rich heritage of our composite culture is a pointer to that very fact. The culture and tradition of India emphasizes on strength not abuse, equality, not power and control.

छण भंगूर सी जिंदगी में उसने छण भर के लिए भी ना प्‍यार किया,

बस नाम प्‍यार का देता रहा और रोज बलात्‍कार किया…

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