To within the ambit of IPC and devise

To our amazement and disbelief, the growing societal
expectations of masculinity in India are not only destroying the most sacred
institution of marriage but also the self-worth of women in general. It’s
because the majority of sexual violence is consistently reported within the
marital relationship. The issue of marital rape appears to be institutionalized
when the wife is forced to have sex without her consent under the pressure of
masculine honor, threat and manipulation. The marital rape is having serious
outcomes. First, it takes longer time for a wife to recover from the trauma of
sexual violence by her own husband. Second, there is higher likelihood of
repeated assaults against her. Third, there is more pressure to stay with
perpetrator against her will. Fourth, it brings negative effects on children in
the household. Ironically, there is no law which allows wife to press charges
against the sexual violence of husbands. Despite the recommendation of Verma
Committee, Judiciary and Legislature are categorically rejecting the demand of
declaring this form of intimate violence as rape. Are the wives legally owned
by the masculine partners? Are they not entitled to refuse to have sex with
their husbands?  Will the attempt to
criminalize marital rape destroy the institution of marriage? While exploring
these questions, researchers aim to argue for incorporating marital rape within
the ambit of IPC and devise ways to identify and prove the denial of sex in
marriages as rape and thus a heinous crime. 
 

                                       

 

 

Introduction

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     Today,
intimidation and physical force of a man on his wife has dominated her
resulting into forced sexual relations. It is considered as a concept that is
difficult to comprehend by the members of the society. The actions of husband
on his wife should be defined as rape when she is forced to have sexual
relations with him considering it as a part of marital obligations and
considering marriage as a free pass to have sex. There are instances where sexual intercourse was forced on a wife
by her husband.1 Marital rape is not a crime and wives
are not getting the same protection as women who are not married to their
rapist. Indian legislature does not
define marital rape as crime and the husband is not defined as married to his
wife if they are separated.2

     Generally, women are the victims of two
crimes, namely sexual assault and physical abuse by their husbands. In the
criminal system, these couple of crimes against wife have been the most
unreported. When the victims knock the door of our legislature for assistance,
they show them the exit door and are maltreated by the police. They let her
enjoy the victimisation. Legal definitions of rape vary from state to state and
it involves three separate factors: vaginal penetration, sexual intercourse or
“carnal knowledge”; force or threat of force; and no consent of the victim.3
 Complication within the definition of
rape arises by the fact that forced sex is not considered a crime in marriage
because of its sacrosanct relationship. Some men appear to be sexually aroused
by violent actions, and sexual relations often follow violent incidents.4

We can see that even today our society is
following the old norms and show that women cannot have a personality of her
own because of certain inherent weakness, it is given in Vedas and in old
literatures which show the subservient position of women. In Hinduism, Smriti laws
Saptapadi  is given that means seven steps which
includes each step for food, strength,
wealth, friendship, sex,
offspring and happiness which is lead by the men.

If a woman is raped by her own husband she
confronts so many that leave numerous negative impacts on her. She faces mental
trauma that she has been raped by the one with whom she is going to stay for
her whole life as there is a betrayal of trust. She cannot share her pain to
anyone because our society does not consider it as a rape and don’t allow the
denial of sacrosanct institution of marriage.

Marital rape victims
face repeated aggression which may include physical assault also. There can be
a full ownership of female by her husband as wives are considered “asset” of a
man or as legally owned entity that gives him free pass to have sex. Society
does not take it as a rape and in our society marriage is a sacred institution,
she has to stay with perpetrator because of the societal norms. All these
things affect the children of that family as from the very childhood they had
only seen violence which shapes there mind and their lives are severely affected
by it.

The rape may be seen
as a result of incompatible sex that drives more general forms of
incompatibility.5
Marital rape is a major problem that is prevailing in our country because they
are mostly unreported because sometimes women don’t know that whether
unconsented sex is a rape or not which can be seen by the response of legal
system also, they take it as a part of marital life. Institution of family is
also damaged by marital rape because it affects all the members of family that
is wife, husband and children. Indian society considers marriage not only a
knot between two individuals that will be remaining tied throughout the life,
but also marriage between two families. Generally marital rape is accompanied
by physical violence which hurts the belief of children and they become emotionally
handicapped and affect their upbringing as their minds are shaped and affected
by violent circumstances.

 Here the question arises that if women want
gender equality can she be in sexual serfdom? Who does her body belong to? Does
she have the right to make choices? The society answers that it is her
husband’s named tattooed which is accompanied by Mangalsutra and Sindoor
that traps her to traditional barricades. Unless she deconstructs herself
certainties will drive her towards the graveyard.

 

 

 

Justice Verma Committee Report

There is a lacuna in
laws which depicts the ignorant and pathetic thinking of judiciary and
legislature; as it is given in IPC section 375 has an exception which states
that ‘sexual intercourse or sexual acts by a man with his own wife, the wife
not being under fifteen years of age, is not rape’; this exception
should be removed and it was recommended by Justice Verma Committee. In our
country, to address the issue of marital rape there is a need of stringent laws
on the issue of marital rape in India and it was suggested by Justice Verma
Committee that marital rape should be considered as an offence in India, marriage
should not be considered as an irrevocable consent to sexual acts. By the above
mentioned section we can imply that our society does not considered that a wife
can be raped by her own legal husband. There is no existence of non-consensual
sex in the institution of marriage. It was said by The Justice Verma committee
report, when married women are denied to a right to consent then it reduces
them to ‘no more than the property of their husbands.’ It was said that
“Marriage should not be considered as a binding consent to sexual acts.

Therefore, with regards to an inquiry about whether the complainant consented
to the sexual activity, the relationship between the sufferer and accused should
not be important.”6 It
was recommended by the committee non-consensual penetration of a sexual nature
should be contained in the definition of rape.  .  Therefore, with
cognizance to an inquiry about whether the complainant consented to the sexual
activity, the relationship between the victim and the accused should not be
relevant.    

 

Law Commission Report

The 42nd
Law Commission Report The 42nd Law commission Report
(1972) suggested that marital rape should be criminalised however actions were
not taken place as the 84threport (1980) was not in favour of the
criminalisation. Yet it negates this very pronouncement by not recognizing
marital rape”. The concern was again bound up by the Law Commission of India in
2000 but the efforts were deficient.

In section
3.1.2.1 of 172 Law Commission Report, it was said that the commission cannot
accept the recommendation made by representative of Sakshi in the case of
Sakshi v. Union of India and Others, 2004 that exception of section 375 of IPC
should be deleted as it may amount to excessive interference with the marital
relationship.7Even
it is not deleted on the recommendation of Justice Verma Committee Report and
the reason given by legislature and judiciary is that they don’t want to break
the institution of marriage while
ignoring atrocious emanation of non-consensual sex.

‘Sexual assault
on any part of the body should be construed as rape”8, it was also recommended
in Law Commission Report.

As per its
guidance, it stated that ‘Sexual intercourse as contained in
section 375 of IPC should include all forms of penetration such as
penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal.

1 Richard J. Gelles, ‘Power, Sex and Violence: The Case of Marital
Rape’ Oct., 1977, 339

2 Indian Penal Code
1860 s 376(A)

3 Irene Hanson Frieze, ‘Investigating the Causes and Consequences of
Marital Rape’ 1983, 532

4 M. Faulk, ‘Sexual Factors in Marital Violence’ Oct. 1977, 30-38

 

5 Supra ( n 3)

6 Report of the Committee on Amendments to Criminal Law, Justice J.S
Verma, January 23, 2013

7 172, Law
Commission Report, March 25, 2000

8Sakshi v. Union of India and Others 2004 (5) SCC 518