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THE CRIME OF MARITAL RAPE AND INDIAN JUDICIAL PROVISIONS

sahista aslam

MARITAL RAPE:

Rape is a heinous crime in the society, in India rape is the 4th highest crime and mostly women are the sufferers, there are many cases where rapes do not get registered because of shame or due to financial problem. The children who do not know the meaning of rape are also not safe; they are also a victim of this crime. Though we have provisions in INDIAN PENAL CODE against rape but marital rape is still not a crime in India.

In simple term Marital rape means “rape committed by a person to whom the victim is married”.

Marital rape is not new in India and mostly women are the one who are suffering from this disgusting crime. According to the cultural belief, marriage is the duty of a wife to make his husband happy and marital rape is not a crime as the husband is the owner of the wife in every manner after marriage.

Marital rape is a shameful act as it destroys the victim emotionally, physically and psychologically it is an act by which a man forces himself upon her wife without her consent and it is also a physical violence towards the victim.

TYPES OF MARITAL RAPE:

Forced rape: it is a type of rape in which the abuser forced himself upon the wife to cohabitate with him without her will; it may be oral, anal or simple sex.

Battering rape: it is another form of rape in which the abuser beats the victim and at the same time assaults the victim physically.

Obsessive rape: in this kind of rape the abuser is obsessed with sex and the act itself is violent, because of his obsessive sexual habit it is possible that the abuser will use violence to become aroused.

CAUSES OF MARITAL RAPE:

·       Desire to assert superiority

·       Petty domestic issue

·       Economic dependence

·       Attempt of women to demand her right

·       Alcoholic nature

·       High illiteracy rate

·       Extreme Religious belief

EFFECTS OF MARITAL RAPE: it is a serious crime which we should not neglect, a woman is not an object of pleasure and it is because of marital rape that a woman suffers a lot. The physical violence and the sexual abuse leaves a long-term effect in the victims’ life, some of the effects of marital rape are:

·       Difficulties in falling or staying in sleep

·       Nightmares

·       Flashbacks

·       Mental health problem

·       Depression

·       Anxiety

·       Fear

·       Low self- esteem

·       Sexual dysfunction

·       Bodily weakness etc.

RELIGIOUS BELIEF RELATED TO MARITAL RAPE:

Marriage is a union between the two individual. From ancient time women are treated as a weaker section compared to men, as we all know, that India is the land of diversity, people from different religions live together.

But one thing is common in all religious belief that the main motive of marriage is the procreation of children and to fulfill the needs of the husband. The wife is an object of pleasure and it is her ideal duty to provide the same to her husband whenever he demands it.

According to the Hindu marriage act 1995, marriage gives cohabiting right to both the partner, and an assurance for the family or children so that they do not suffer from parental issues. Marriage is a guidance through which a person knows how to lead their marital life.

According to Islamic law- a women should leave whatever work which is keeping her occupied, if the husband demands sexual pleasure from her. If the woman refuses to submit to her husband’s desire, for no reason, she should be exposed to god’s displeasure.

According to Christian beliefs bible does not recognize marital rape and wife should always consent to sex.

All these beliefs give power to a man to dominate their wife and misuse it for their pleasure and to hide their BEASTLY behavior.

COUNTRIES CRIMINALIZED MARITAL RAPE:

 In December 1993, the united nation high commissioner for human rights published the declaration on the elimination of violence against women. This establishes marital rape as a human rights violation. Still many countries do not accept marital rape as a crime.

In 2006, the UN Secretary General found "Marital rape may be prosecuted in at least 104 States. Of these, 32 have made marital rape a specific criminal offence, while the remaining 74 do not exempt marital rape from general rape provisions. Four States criminalize marital rape only when the spouses are judicially separated.

Countries that criminalized marital rape are Denmark, Norway, Poland, United States, Germany, sedan, Israeli, Talmud etc.

Though India has some civil laws related to marital rape but still it does not criminalize marital rape.

WHY INDIA STILL NOT CRIMINALIZED MARITAL RAPE:

Rape is not a crime against individual but it is a crime against the whole society. There are laws to prevent rape cases still people are suffering from it, the men are also not safe but because of shame they don’t file report or sometimes the officers don’t believe it. As a mindset that rape only happens with women and also that it is a male dominating society where men are the ones who rape and are not the victim.

Marital rape has no provision in Indian laws as it is believed that the main object of marriage is procreation of children and it is the duty of an ideal wife to fulfill the needs of the husband.

Many Indian jurists have stated that in India the divorce rate is low compared to other countries but they don’t see that women in India keep quiet and allow the men to do whatever they feel like because of society, culture, etc. They keep their mouth shut and suffers the ill treatment of their husband.

According to the legal point of view it was observed that there are lots of false cases related to rape, molestation, and domestic violence to take revenge from the husband or their relatives or to gain monetary profit from the property.

There is still an ongoing debate discussing to criminalize marital rape or not, the government needs time to amend laws and make provisions as they have to look into every aspect and religious sentiments before making any act.

DYNAMICS:

According to national family health survey the reports state that 31% of married women (nearly one in three) have been subjugated to physical, sexual and emotional violence at the hands of their spouse. Although the proportion of married women suffering physical and sexual violence at the hands of their husbands has come down from 37% in 2005-06 to 29% in 2015-16, it is still a dangerously high figure.

LAW RELATED TO MARITAL RAPE:

In December 1993, the united nation high commissioner for human rights published the declaration on the elimination of violence against women. This establishes marital rape as a human rights violation. Still many countries do not accept marital rape as a crime.

·       Section 375 of the Indian penal code stated that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age is not rape.” But the act was amended by the criminal law act in 2013 and exception 2 of section 375 come into light that the age of consent made 18 from 15.

·       The protection of children offences act, 2012 defines a child as any person below the age of 18 years and provides protection to all children under the age of 18 years from the offences of sexual assault, sexual harassment and pornography whether the spouse is married or not.

·       498A is a legal remedy for women who are facing domestic violence and cruelty. Cruelty includes mental cruelty, physical cruelty and after amendment sexual cruelty also.

·       The protection of women from domestic violence act 2005 protects women from violence but not criminalize such acts.

Sexual intercourse with a separated wife is a crime and punishable offence under section 376B OF INDIAN PENAL CODE 1860, whoever has sexual intercourse with his own wife, who is living separately, without her consent shall be punishable with imprisonment of either not less than 2 years and which may extend to 7 years and shall also be liable to fine. But marital rape is not recognized as a rape.

PROVISION RELATED TO MARITAL RAPE:

Punishments for offences related to sexual assault covered in the protection of children from sexual offences act 2012 are:

·       Penetrative sexual assault (section 3) - not less than seven years which may extend to life imprisonment.

·       Aggravated penetrative sexual assault (section 5)- not less than ten years which may extend to life imprisonment ,and fine

·       Sexual assault (section 7) - not less than three years which may extend to five years and fine.

·       Aggravated sexual assault (section 9) - not less than five years which may extend to seven years, and fine.

·       Sexual harassment for the child (section 11)- three years and fine

·       Use of child for pornography purposes (section 13) - five years and fine and in the event of subsequent conviction.

Punishment related to cruelty described in INDIAN PENAL CODE 1860:

·       498A whoever, being the husband or the relative of the husband of a women, subject such women to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Punishment related to domestic violence act 2005 is:

·       Section 4 (1) states that any person who has reason to believe that an act of domestic violence has been, or is being, or is likely to be committed, may give information about it to the concerned protection officer.

·       Section 5 states duties of police officers, service providers and magistrate.

·       Section 6 provides shelter homes to the aggrieved person on request made by the protection officer or a service provider.

·       Section 12 states the procedure for obtaining relief from the magistrate.

·       Section 17 gives the right to women to reside in a shared household, whether or not she has any right, title or beneficial interest in the same.

·       Section 18 states about the protection order given to the aggrieved person by the magistrate.

·       Section 19 states about the residence orders given to the aggrieved person by the order of magistrate, 19(3) the magistrate directs the respondent to execute a bond if require, with or without sureties, for preventing the commission of domestic violence.

·       Section 20 directs the respondent to pay monetary relief to the aggrieved person and any child of the aggrieved person as a result of the domestic violence.

·       Section 21 allows temporary custody of a child to the aggrieved person.

·       Section 22 orders the respondent to pay compensation to the aggrieved person for the injuries, including mental torture and emotional distress caused by him by the acts of domestic violence on an application made by the aggrieved person.

·       Section 31 states penalty for breach of protection order by respondent , if the respondent breaches a protection order or an interim protection order he shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.

·       Section 33 penalizes the protection officer if he fails to discharge his duties as directed by the magistrate in the protection order without reasonable cause.

Under CRIMINAL PROCEDURE CODE provision for accused suffered from rape:

·       Section 53A- examination of person accused of rape by medical practitioner.

·       Section 164A- medical examination of the victim of rape.

CASE LAWS:

Nimeshbhai Bharatbhai Desai vs. State Of Gujarat on 2 April, 2018

Ram veervs. The State of Madhya Pradesh on 8 December, 2017

Vikram Khimta vs. State Of H.P on 1 November, 2018

 State of Maharashtra vs. Madhukar Narayan Mandikar 

Sree Kumar vs. Pearly Karun

CONCLUSION:

Marital rape is a serious form of crime against women and worthy of governments attention. It is a fact that women who are raped by their husbands suffer long-term physical and emotional problems. It becomes more traumatic for women when after rape she has to reside with abuser.

Positive legal change for women in general is happening in India, but further steps are necessary so that both legal and social changes take place.

There are many loopholes in protection of women from domestic violence act, as the act does not openly speak against marital rape. On the brighter side enactment of a specific legislation against domestic violence has opened the door for a legalization criminalizing marital rape.

Marital rape is a big problem which we should not neglect but it is not only the responsibility of the government to take initiative as citizen of India it is also our duty to take some responsibility so, if we find out anyone is suffering from marital rape we should help them by letting them know their rights, illiteracy is the major problem and root of most of the crimes in India.






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