Context

The Centre, in an affidavit filed in response to pleas seeking criminalizing marital rape

What is Marital Rape?

  • Marital rape or spousal rape is the act of sexual intercourse with one’s spouse without the consent of the other spouse.
  • It is a form of domestic violence and sexual abuse.
  • Although it was once widely unrecognized by law and society as wrong or as a crime, it is now recognized as rape by many societies around the world, repudiated by international conventions, and increasingly criminalized.
  • The issues of sexual and domestic violence within marriage and the family unit, and more generally, the issue of violence against women, have come to growing international attention from the second half of the 20th century.

When is it considered to be a rape?

Section 375 in the Indian Penal Code

  • A man is said to commit “rape” who, except inthe case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:—
  • Against her will.
  • Without her consent.
  • 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.
  • 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.
  • 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.
  • 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.
  • Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.] State amendment

Is marital rape as a law being misused?

  • Marital rape is difficult, practically impossible to prove or disprove. There are several questions that remain unanswered by those demanding a new law to deal specifically with marital rape.
  • What may appear to be marital rape to an individual wife, it may not appear so to others.
  • As to what constitutes marital rape and what would constitute marital non-rape needs to be defined precisely before a view on its criminalization is taken
  • If all sexual acts by a man with his own wife will qualify to be marital rape, then the judgment as to whether it is a marital rape or not will singularly rest with the wife.

Should marital rape be criminalized?

  • When a woman says she is sexually violated, that is not the only thing happening to her – it is often coupled with the husband not giving money, or beating her.

What recourse is available currently for women who are raped by their husbands?

  • In the Domestic Violence Act, cruelty is described in various ways such as economic violence of not giving money to the wife, physical violence like beating, and emotional violence like humiliating her body or her parents.
  • Women can ask for protection and maintenance; they can ask for a restraining order against their husbands.
  • Further, under 498(a) of the Indian Penal Code, any kind of physical or mental or emotional harassment is explained as cruelty.
  • Under explanation ‘b’ of the same section, making demands for dowry is described as punishable.
  • It leads to three years imprisonment, and is dealt with at the magistrate’s court. For the Domestic Violence Act too, the forum is the magistrate’s court.

What might be the challenges, according to you, in implementing the law, if marital rape is criminalized?

  • Under 498(a), if the complaint is proved false, men’s groups are demanding that the woman has to pay compensation. That demand will come in the case of marital rape laws too. All this has not helped women at all.
  • The woman will have to present her case in the session’s court.

She has to prove that on that particular night, sex was without consent, that she was not in the mood for it, or he had forced her after she had gone to sleep, or was ill. That will be a challenge.

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