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Marital Rape: An Unrecognized Offence In India

 

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Mansi Saxena, BBA LL.B. SRMU, Lucknow

Rape in India

Section 375 of Indian Penal Code defines rape as follow-

A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:—

(First) — Against her will.

(Secondly) —Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.

(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.][1]

The Amendment, 2013 brought a huge change in definition of rape in IPC but this change had no effect on the exception which legalize marital rape in Indian society. Marital Rape has been the  most controversial topic  in Indian society as Article 21 of the Indian Constitution guarantee “Right to Life and Personal Liberty” to every citizen of the country but then what the consent of a married women regarding sexual intercourse, is that if a women is married then she losses her right to say NO.

 

History of Marital Rape In India

The fight for criminalizing Marital Rape and removing exception under sec 375 in India is from time in memorial. In 2012, the response of the Parliamentary Standing Committee on Home Affairs’ report on the Criminal Law (Amendment) Bill, in response to a judicial committee’s recommendation of criminalizing marital rape in India was focused on maintaining the institution of marriage and not hampering the institution not securing the rights of women who somewhere are victim of marital Rape in India. For law making bodies institutions of marriage are base besides the rights of women victim of marital rape.

In 2013 the home secretary gave his view on marital rape and said “Marital rape is difficult to define. In India, marriage is a sacred institution, and to include marital discord and resultant abuses as offences would be tantamount to delivering a blow to the social fabric, he argued[2].”

This is the reason why marital rape is still a topic of moot as the law maker are still not recognizing this offence under the banner of term maintaining dignity of marriage ceremony

Position of martial rape at Global level

It is well recognized that violence against women represents a breach of women’s fundamental human rights. As early as 1993, violence against women including marital rape was recognized as representing a breach of women’s fundamental human rights under international law in the U.N. Declaration on the Elimination of Violence Against Women (DEVAW). The Fourth World Conference on Women in Beijing in 1995 and the resulting

Beijing Declaration and Platform for Action reiterated that violence against women under international law includes “physical, sexual and psychological violence occurring in the family, including battering . . . , marital rape . . . and violence related to exploitation” and gender violence condoned by the state[3].

At global level also there are many countries who have still not recognized marital rape like India but the ratio of countries not recognizing marital rape in comparison to the countries criminalizing martial rape is less which is fact of relief.

Conclusion

After marriage a women does not become an easily useable domestic recourse to the husband, her consent for sexual intercourse is also her right as if a married woman is not ready to have intercourse with her husband and then also she is forced to have intercourse than that is rape not a husband’s matter of right.

“A No means NO”- Law Maker Please Acknowledge This!.

Don’t go out alone at night that encourages men.

Don’t go out alone at any time, any situation encourages some men.

Don’t stay at home, intruders and relatives can both rape.

Don’t go out without clothes that encourages some men.

Don’t go out with clothes, any clothes encourage some men.

A void childhood, some rapists are turned. On by little girls.

A void old age, some rapists prefer aged women.

Don’t have a father, grandfather, uncle or brother, these are the

Relatives who may rape.

Don’t have neighbors, these often rape.

Don’t marry, rape is legal within marriage.

To be quite sure- don’t exist![4]

“The Word Adjustment Does Not Define a Women Character”

[1] Section 375, Indian Penal Code,1860

[2] RK Singh, Union Home Secretary, as reported by IndiaToday and FirstPost

[3] Brooklyn Journal of International Law, 2015 The Right to No: The Crime of Marital Rape, Women’s Human Rights,     and International Law

[4] London Rape Crisis Centre: Sexual violence: The Reality for Women.

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