WEATHER MARITIAL RAPE SHOULD BE CRIMINALIZED OR NOT

WEATHER MARITIAL RAPE SHOULD BE CRIMINALIZED OR NOT 

                                                                                        **Author - Bhalerao Manali Y. C. Law College, pune

                 Marriage is a multifaceted institution, encompassing anthropological, cultural, and legal dimensions that establish socially sanctioned rights and obligations between individuals. In many societies, marriage serves as the basis for recognizing sexual relationships. However, the issue of sexual violence and physical aggression within marriages has long existed in a legal grey area. Maritial rape refers to " forcible sexual assault or violence by one spouse towards the other ". 

                Although historically considered a 'right' in many cultures to establish sexual relations between married couples, consent has become equally important as it is among non-married individuals since the twentieth century onwards. There have been increasing international conventions and voices against intimate partner violence and sexual abuse within marriages. 

                 Out of 185 countries in the world, only 77 have laws that clearly criminalise marital rape while there are 34 countries that explicitly decriminalise marital rape or offer immunity to men who perpetrate rape against their wives. Unfortunately, India is one of the 34 countries that have decriminalised marital rape. As a result, many incidents of marital rape go unreported, which further perpetuates this cycle of violence. 

                 Criminalising marital rape would not only give women basic human rights but also provide direct legel remedies for seeking justice . It is crucial to understand that treating a wife's body as something owing to the husband and committing a sexual act against her will is nothing but marital rape. The fact that the victim and defendent are married should not be used as a defence that can justify rape. 

                    Section 9 of the Hindu Marriage Act ( 1955 ) forced estranged spouses into reconciliation through court-mandeted restitution of conjugal rights - a factor contributing to incidents like marital rapes - leading some parties challenging this provision through Public Interest Litigation Petition. 

                     Failing to take action against marital rape violates fundamental women's rights : privacy protection from exploitation bodily integrity guaranteed by articles 21 and 14 Indian Constitution. The Kerala High Court noted treating wife's body as something owed husband committing unwanted sex constitutes nothing but marital rape ( 2021 ).

                 J. S Verma committee discussed exception (2) Section 375 IPC recommended removing exceptional defence using relationships justifying leniency does not justify such cases recommending Criminal Law Amendment Act include marital rapes offences.

                As coins have two faces so do people regarding criminalising marital rapes  detrimental Indian society Union Government submission Delhi HC January 2022 stated doing so would thwart marriage institution making harassment easier Justice Dipak Misra former CJI said " in my opinion should not be regarded as crime creating anarchy ".

                         A man’s sexual acts with his wife cannot be recorded as evidence in court, as there is no lasting evidence in such a case. In 2016, an Indian official told the Rajya Sabha that the concept of marital rape is international and could not be applied in Indian contexts due to factors such as poverty, illiteracy, social customs, faiths, and sanctity of marriages.

           Women may feel pressured to report marital rape due to social stigma, child impact, and family shame. On the question that the husband raped his wife, the wife’s testimony is often the only evidence of the rape. There may have been consensual sexual activity between the spouses before the rape, so DNA or semen samples would be irrelevant. Because both the husband and wife would have engaged in sexual relations frequently, it is almost impossible to prove the absence of consent.

            Raped victims are victims of violence, and the fact that the perpetrator and victim are married enhances the severity of such cases. Merely because the accused is husband and victim is wife, the offence of rape cannot be called off and be categorised as forced rape resulting in domestic violence. Individual autonomy is of the utmost prerogative of Article 21. “Rape is rape, be it marital or non-marital, the victim is women only.