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CAN A MARRIED WOMAN BE RAPED?

CAN A MARRIED WOMAN BE RAPED?

Written by – Tanvi Mishra

In India, we have seen a lot of rage amongst the citizens in rape cases like the Nirbhaya case in Delhi, Dr. Priyanka Reddy’s rape case in Hyderabad and the list goes on and on. We all will agree that the rage here is justified. But, we are also aware of the fact that atleast we have some rules and regulations in our country according to which rape is a punishable offence. This signifies that we are aware about it and we are trying to prevent it. Section 376 of Indian Penal Code mentions the punishment for rape which can even be a death penalty for heinous cases. But, have you ever heard of Marital Rape? Can a married woman be raped in India? Yes, it’s a shame to accept this fact but this is the truth and the main reason for this predicament of women is the societal norms and thinking. 

When a girl is married, in some families, they expect a lot a patience from her side and want her to keep the matrimonial relationship alive till the end even at the cost of her life. In arrange marriage, she is sometimes left to have sex with a complete stranger with or without her wish. Yes, I said SEX which is still a taboo in our country. A girl cannot openly share her feelings regarding the same with her mother or anyone from her family. She cannot pour her heart out about this experience, about whether she wants it or not, she is comfortable or not. Clearly, women are being treated as an object. Some husbands do understand the value of “consent” but not all. Some so called men try to get relief from the work and other stress by having sex or in clear words by raping their wife. In some cases, if the wife goes against this then she faces domestic violence as well. 

The sad part here is that there are no rules and regulations regarding the same. Everybody including the government and the judiciary have turned their back towards this serious issue. Section 375 of the Indian Penal Code considers forced sex in marriages as a crime only when the age of the wife is below 15 years. But here comes the irony, isn’t 18+ the legal age for marriage of a girl. Instead of raising voice against the marriage of girls below the age of 18, rules have been made for the protection of girls below 15 years of age from the marital rape. 

Whenever, in such a situation if a woman tries to deny the husband then he has more physical power because of the way he has been brought up from the beginning and so he can commit rape of his own wife. And the wife is just helpless because everybody believes that it is very common and also a right of her husband to be sexually involved with her anytime. On the first note, it is difficult for her to share such things with her family. Even if she gathers the courage to do so then she is simply ignored. She cannot rush to the judiciary for help as it is not an offence according to them. 

On conducting a small survey through google forms, I got to know that the main reason behind not having a law on marital rape is the lack of awareness. If the citizens are not fully aware about a particular issue, then it is very difficult to resolve it and help in the development of our country by the introduction of the required laws.

According to the survey, 42.9% people are under the misconception that we have a law against marital rape in India and 28.6% are not sure about it. 

According to a majority of 42.9% people, every women is subjected to marital rape atleast once in her lifetime. But, even then it is not something which is discussed among the common citizens. 

71.4% people are not satisfied with the rules and regulations regarding marital rape. But, the more surprising part is that 28.6% are satisfied even though we don’t have any law for the same.

In the landmark case of Joseph Shine v. Union of India, the court sought to ensure that marriage enters the domain of the application of constitutional dignity of each citizen, including those of wives. 

Many years ago, Menaka Gandhi argued elsewhere that men and women alike possess equal citizenship rights under the Indian constitution, and that ‘the ability to withhold consent in context of sex is a crucial ingredient of the constitutional self.’

Countries including Nepal and Bhutan have criminalized Marital Rape but India is still among the thirty six countries where this misconduct is not criminalized. 

Section 376 of the Indian Penal Code, particularly mentions that ‘sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape’. This statement seems to support the concept of marital rape.

It is said that if any law is made in respect of marital rape, then there can be a lot of misuse by wives and so instead of making any law, we must focus on providing justice using other landmark judgements. But, don’t you think that each and every law present in India can be misused in some way or the other.

The Sedition Law which is very much in news has been into force from the colonial period. It took the life of so many innocent citizens as well but even then the law still continues to be a part of our life. In the same way, there is misuse of the laws regarding rape. In a recent case of Delhi, a girl accused her ex-boyfriend for rape because he refused to marry her due to the issues in his family. The consensual sex between them was brought up as a rape in front of the authorities but we never even thought of having laws regarding rape.

The nub here is that many married women are in a vulnerable condition and it is the need of the hour to help them out.

Several steps can be taken to protect the women suffering from marital rape-

  1. Creating awareness is the most important step. As we have seen in the survey, many people are not exactly aware about the present situation and laws regarding marital rape.
  2. Sex should not be considered a taboo, it is a part of our life and the girls and boys both should be made comfortable enough to talk about it and share any such problem experienced by them.
  3. Scope of rape should not be limited. We need to understand that marital rape is a reality which needs to be dealt with, as soon as possible.
  4. The government and the judiciary should be more serious about the issue of marital rape and should make rules and regulations regarding the same.
  5. To deal with the misuse, proper investigation must be done to find out the truth in the similar way like we do in other cases.

Marital rape is also a crime and so we must have a law for it. Any argument against the creation of this law would be an excuse and nothing more than that.

NAME- TANVI MISHRA

COLLEGE- ARMY INSTITUTE OF LAW, MOHALI

YEAR- 1ST YEAR

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