A Need for Acknowledging “Marital Rape” as an “Offence”

This article is written by Pooja Ogale. Pooja is currently pursuing her LLM (Specialization in Constitutional and Administrative Law) from GNLU, Gujarat.

 

 

In the era where people are talking about globalism, development and liberalism, we may still witness the woman position in India entangled in social structures deeply rooted in Indian society in the name of family, religion, caste, community and society. It is a general observation that woman are vulnerable to various crimes in the society. The rate of crimes against women is levelling up day by day. The list of crimes against women is exhaustive; some of the major crimes include dowry death, domestic violence, sexual exploitation at the workplace, rape, female foeticide, abduction etc. The position of the women in the society is vulnerable to exploitation even at a public arena, parental home as well as her matrimonial home.

One of the most important yet neglected contemporary socio-legal issue which is existing in India since time immemorial is the issue of Marital Rape. This concept is gaining consensus in recent times and many debates are going on over the aspect of incorporating ‘marital rape’ as an offence in Indian Penal Code.The Indian Penal Code defines ‘rape’ and provides punishment for the same in it, but the aspect of marital rape is totally neglected.

In order to devise laws over the issue of marital rape, it is important that we know that what constitutes marital rape.“Marital Rape” can be referred as an act of having unwanted intercourse by the husband with his wife by inflicting physical cruelty or violence on her.In the aspect of marital rape the husband is the offender or in other words, he is the rapist. The irony can be observed that when the same act is commenced by the person other than the husband that constitutes rape under the provision of Indian Penal Code and is punishable but when the husband by inflicting force or physical and mental cruelty rapes his own wife is not even considered to be an offence. Woman is considered to be a private property or an object and is subjected to sexual as well as a physical abuse of husband.[1]

Marital Rape is one of the biggest challenges which we are facing in the socio- legal aspect in the society. In Indian culture,a girl is considered to be a burden on her parents and is considered to be a liability for the reputation of their families thus often the offence of the marital rape is neglected. Often the husbands consider their wives as their slaves or as their property and force them to do things according to their wishes. Hence force them to have intercourse by abusing them and with assault also. It is important that the men should respect woman and indulge into intercourse even with their wives with their consent as they are also human beings. It is important that husbands treat their wives as their life partner rather than their slaves or property where they inflict their whims and wishes.

We all acknowledge that marital rape is wrong and it should be stopped and it should be curbed. But the problem is the lack of the legal provisions, lack of legislations. Most importantly there is a lack of acknowledgement of this offence in India. Indian culture connotes sacramental value to the marriage and having intercourse after marriage even by force by the husband without the consent of his wife is not considered to be a rape. It is important that we come out of the cultural and religious beliefs attached to this relation and think in the human rights perspective or in the perspective of the rights of the woman or on the perspective of the morality.

The society should acknowledge the issue and should raise the concern over this issue to be codified as an offence punishable under Indian Penal Code. It is important that the woman despite hiding their plight should come forward and raise their concern over the abuse and cruelty inflicted upon them. Often the women of India in order to save their marriage or in order to uphold the reputation of the parental home or matrimonial home do not raise their voice over this issue and suffer of marital rape.

Mrs Maneka Gandhi, Minister for Women & Child Welfare, has recently, commented that due to the lack of education, poverty, religious beliefs and societal norms it is difficult to make laws on marital rape.[2] There is a need well-enacted law against this evil for protecting women from the non- consensual intercourse with her husband. Marriage even if considered to be sacred should not be considered to be a permit to inflict force on woman for having intercourse. Women should be protected from such abuse and should be respected. There is a need to have legislative provisions to safeguard the interest of the woman and protect them from the sexual abuse.

[1]RathPriyanka, “Marital rape and Indian Legal Scenario”

<Accessible at:  Indialawjournal.com/volume2/issue_2/article_by_priyanka.html>

(Last Accessed on:  16th September, 2016).

[2]Will India have a law against Marital Rape? Pressure on government grows”, June 2016.

<Available at: everylifecounts.ndtv.com/will-india-have-a-law-against-marital-rape-pressure-on-government-grows-3214.>, (Last Accessed on 16th September, 2016).

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