WHY MARITAL RAPE SHOULD CRIMINALIZED

Marital rape is a concept which implies an act of sexual intercourse without and that means by marrying the spouse has given an implied consent for a sexual conduct, this conduct is an absolute power play action to control the freedom of women by following such patriarchal belief it should truly impossible for the us the people of India to say that we live in democratic country where every citizen has the right to uphold their dignitnity and freedom because a country where the women is infringed the right and choice of the sexual life after the marriage how can such country be seen as a country who worships goddesses as the deity when they cannot provide the most basic right of bodily autonomy we often consider that violence against women has decreased from earlier but the reality is that many married women face such sexual violence on daily basis but due to no provision of marital rape they have nowhere to seek justice 

Marital rape as a crime has a very interesting history where the concept of implied consent by marriage was introduced by sir Mathew hale (1 MATTHEW HALE, HISTORIA PLACITORUM CORONAE 629 (1736)) during 17 the century in concept women were considered as a property not as an human being in the marriage and there not considered as legal person in the eyes of as they were the property of their husband so through this doctrine which was followed in India introduced by British continued even when it was banned in England in 1991 but in India still there is no provision for marital rape 

The statutory provisions in our constitutions for marital rape and in development in mention in article 37 of Indian penal code 1860 where the definition of rape and all the instances is mentioned when it can be considered as rape and under section 2 of this section there have been mentioned that sexual intercourse by a man with woman where the wife is not oboe 18 years would be considered as rape but this condition is not applied when the wife is above 18 and this provision is still followed even though there is was recommendation made by Justice J.S. Verma Committee (Justice J.S. Verma Committee Report, 2013).but even after such recommendation it was not followed by the parliament to make such provision

In Independent Thought v. Union of India, (2017) 10 SCC 800 similar interpretation was also observed in this case where the exception 2 of section 375 was analysed and said that such provision which distinguishes and limits this provision to underage girls violates article 14, 15 and 21 if Indian constitution as it implies non observance to sexual choice , dignitinty  and freedom of a women sexual life and the contract marriage can be a license for sexual violence but even after  such discussion the statutory  framework still denies a women protection of marital rape

As from the point of evidence an d data it can be clearly proved that how serious condition is there India and how such absence of law costs millions of rape encounters just in milliseconds as per national family health survey 2019-2019 a large portion of married women faces such sexual encounter where they are compelled to be silent and bear the pain as there is no law under which they could seek justice and protect themselves thus this gap discourages women to raise their voices 

One the main and the epitome of this argument to criminalize marital rape is that a marriage is a concept of partnership but not decriminalising marital rape has turned a marriage into a contract where consent given during marriage is only required and consent for sexual act is implied throughout  the marriage which implies a constrain of consent and dignity for a woman and imbalances the very  concept of marriage where both partners should have their own individual identity and sexual freedom basically through  allowing non-consensual intercourse women’s dignity is infringed and they have say for their freedom which directly opposes the idea given in case of  (K S Puttaswamy (Retd.) v Union of India (2017) 10 SCC 1)  where the  right to privacy was said to be a fundamental right which explicitly includes sexual autonomy , bodily integrity and freedom of decision thus decriminalising marital rape supports the idea of marriage as just mere contract not an supportive and loving partnership for life 

Marital Rape can lead to major physical and mental health problems for victims/survivors of this type of violence. In addition to physical injuries, sexually transmitted infections, chronic pain and reproductive health problems (e.g., unwanted pregnancy, complication from unsafe abortions), victims/survivors can suffer mentally: depression, PTSD, anxiety, and suicidal thoughts. In general, the effects of marital rape are continual as the impact of sexual violence occurs over an extended period of time and increases trauma/loss due to a betrayal by a trusted partner. These serious health consequences create a pressing need for legal recognition and protective measures to help sexual violence victims/survivors.

Psychological and social effects of marital rape are extensive. In addition to experiencing depression, anxiety, PTSD, loss of agency and so forth, survivors also experience trauma related to the social stigma associated with being a victim of marital rape — often referred to as “shame.” Survivors face additional trauma related to societal views on marital rape, which are generally believed as “normal” and “legitimate.” In a study published by WHO (2018), it was reported that women who have experienced sexual violence or sexual abuse by an intimate partner have an increased risk of developing chronic mental health problems, including low self-esteem, depression and suicidal thoughts or behaviours. The acknowledgment of marital rape by the legal system, as a crime, helps to affirm the survivor’s experience, as well as provide an opportunity for survivors to challenge the societal norms that encourage silence and acceptance of spousal abuse.

Women who depend financially on their husbands are highly susceptible to marital rape as a result of casuist dependency. When these women experience financial pressure, it is common for them to seek to satisfy their husband’s sexual needs due to fear of losing their financial support, or due to the possibility of social exclusion from the community. Many studies indicate that intimate partner sexual violence is more prevalent in households that have limited financial resources and where women are unable to make independent decisions (NFHS-5, 2019-21). Therefore, providing a legal framework for punishing marital rape helps to protect these vulnerable women from relying on their financial dependence as a means for coercion. Additionally, legal recognition of marital rape helps women to obtain financial assistance through the welfare system, obtain protection orders from due to the threat of marital rape, and allow women to pursue civil remedies without fear of being retaliated against.

From global perspective we can take an example of cananda where the judiciary has criminalied marital rape and recongneied its importance ,this notion was anylased in paper (Koshan, ‘The Judicial Treatment of Marital Rape in Canada’ (2017), SSRN Paper No 3037131) judges reasoned that consent must occur at least at the time of the sexual act, and can be revoked at any time during the marriage. The most significant finding of Koshan’s analysis of the judicial approach to marital rape is that Canadian courts acknowledged that coercion occurs through means other than the use of physical violence. In fact, Canadian courts recognized that economic dependence, emotional pressure, and social conditioning are more common forms of coercion than are overt physical violence. Furthermore, Koshan destroys the prevalent notion that criminalizing marital rape would encourage a high number of wrongful allegations and destabilize families. She notes that standard criminal protections were effectively utilized and that a crisis in evidence did not result from the reforms. Koshan also identifies ongoing problems, such as a lack of reporting and an appraising of credibility; however, these issues do not support retaining the marital rape exception. Ultimately, this article asserts that criminalizing marital rape is critical for establishing bodily autonomy, reforming judicial thinking, and transforming the definition of marriage.

Criminalization does not appear to be supported by demonstrated increases in false accusations or declines in family structures, as evidenced by the example of countries that abolished marital rape exemptions several decades ago without negative consequences. Various jurisdictions including the United Kingdom, Canada, and South Africa have been able to pass laws regarding criminalizing marital rape; examples include R v R and Koshan’s study, The Judicial Treatment of Marital Rape in Canada.

While Indian jurisprudence has yet to address marital rape specifically, India’s Supreme Court acknowledged that the institution of marriage does not diminish the equal protection of an individual’s rights to autonomy over their body or to the dignity of their personhood in instances of sexual violence and in the area of reproductive rights. The following Supreme Court cases illustrate this position: Independent Thought vs Union of India and Suchita Srivastava vs Chandigarh Administration. The medical research, comparative law and constitutional interpretation support the finding that criminalizing marital rape is both necessary and feasible.

Many opponents of criminalisation of marital rape base their arguments on a desire to protect the sanctity of marriage. The basis for this argument is the incorrect premise that marriage is an institution of fragility and therefore requires protection from abusive behaviour by preventing the law from intervening in cases of abuse. Marriage comes from mutual respect, trust, and the consent of both partners, not through the law granting immunity to violence. By exempting marital rape from criminal prosecution, we are granting legitimacy to this coercive act and creating a standard where people are entitled to sexual contact against the will of another. By criminalising marital rape, we are reinforcing the ethical basis of marriage by establishing the requirement that intimacy is consensual and reciprocal; thus, increased accountability through the law establishes marriage on the basis of equality rather than dominion.

Making marital rape a crime is essential for both a domestic legal system and for international law on human rights. CEDAW requires States Parties to take action against discrimination and violence against women in all areas of life, including sexual violence in marriage. Articles 2 and 5 of CEDAW are both about gender based violence being a form of discrimination and that this type of violence will continue to lead to inequality among women and take away their autonomy. DEVAW acknowledges that marital rape is a human rights violation, and that being in a private relationship does not exempt an individual from being held accountable for committing rape against their partner. Therefore, not being able to criminalise marital rape violates international obligations, and can lead to criticism of the violation of the principles of equal rights, dignity, and body autonomy. In addition, research shows that countries that do criminalise marital rape, for example, Canada, are fulfilling their international obligations and have achieved significant normative and practical benefits; marital rape cases are being effectively adjudicated through the courts, and social attitudes towards consent within marriage are slowly being transformed.

The criminalization of marital rape is a legal and moral necessity for India, and an urgent legal priority. This is based on the fundamental rights protected in Articles 14, 15 and 21 of the Constitution of India which protect a person’s right to life, personal dignity, liberty, bodily autonomy and other aspects of autonomy. The Criminal Procedure Court (IPC) Section 375 allows husbands an exemption from charges of marital rape, thus contributing to and perpetuating the systemic gender inequality in the country and undermining the principles of equality and justice outlined in the Constitution. Consent, bodily integrity and reproductive autonomy cannot be negated or cancelled because of the marital relationship, and this has been held as the law of the land on numerous occasions by our courts eg. Independent Thought vs Union of India [2017] 10 SCC 800, Suchita Srivastava vs Chandigarh Administration [2009] 9 SCC 1, etc. and this clearly leads to the conclusion that there is an indubitable constitutional basis for the criminalisation of marital rape.

From an international standard and viewpoint, the criminalisation of marital rape corresponds with the obligation of India as a state party to CEDAW (1979), the United Nations Declaration on the Elimination of Violence Against Women (1993) and General Recommendation No. 19 which categorically recognised spousal sexual violence as a human rights violation. The criminalisation of marital rape is supported by a growing body of comparative jurisprudence from countries such as United Kingdom (R v R [1991] UKHL 12), South Africa and Canada which has shown that it was and is possible, enforceable and socially acceptable, while also educating spouses that consent is necessary for every type of sexual relationship. 

The evidence from various countries supports the argument that legal reform to include marital rape will not only provide protection for women against rape, but it will save lives and protect our society as a whole.