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Marriage lies in the fact that it results in cause and effect of procreation, which is one of the vital and fundamental importance of it. It is a bond of trust, love, friendship which also provides moral and ethical support. It is not only about union of two persons, but also of two families. Marriage is also considered as socially accepted and respected institution of the society.
Now the question is- what an institution is and why marriage is considered as an institution? Institutions are established by way of doing things and comprises of a set of rules and regulations, which primarily focuses on maintaining social interaction and behaviour pattern. It also involves discipline and curbing human emotions and behaviour. Thus, it can be said that institution is established by the people and for the people. Marriage is called as an institution, which is sacrosanct and pious as it binds two people in a sacred bond of love, trust and friendship. And for this they have to go through various rituals and ceremonies, so that in the eyes of society they can be termed as husband and wife.
What if the person who is the life-partner, who should be the protector and should take care of the partner, defiles the body and the soul? The devil lurks in the shadow of her husband and the sacred bond of marriage becomes a necessary evil of the society.
We are not talking about some fantasy, this is the appalling and heinous crime of rape and when it is committed inside the bond of marriage it is called marital rape.
According to section 375 of Indian Penal Code, 1860:- “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:—
● 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.”
Marital rape refers to any forceful and unwanted intercourse or penetration when the wife does not consent. But our society is not ready yet to recognize this term. As said by Sir Matthew Hale in 1678 “the husband cannot be guilty of rape committed by himself upon his wife, for their mutual matrimonial consent and contract the wife hath given up her in this kind onto her husband, which she cannot retract.” And our society is following this centuries old logic in 21st century. This exception is also given in section 375 of IPC.
“(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
But how can we forget that consent form the basis of this crime and how one could forget that there is thin line difference between consent and abstaining from resisting the sexual activity. Just because a woman becomes someone’s wife legally, that person has not obtained the right over her body and license to have sex with her without her consent.
Thus, the definition of rape in this patriarchal society is that it cannot be committed against a particular set of women; just in order that husband can fulfill his desire which is irrational and unethical. And in the case of State of Maharashtra v. Madhkar Narayan the Hon’ble Supreme Court held that “Every woman is entitled to her sexual privacy and it is not open for any and every person to violate her privacy as and whenever he wished.”
What are the reasons because of which our society deters from penalising this act? The institution of marriage is sacrosanct, delicate and pious and penalising it will break this bond. The interference by state will infringe the right to privacy and obligations of marriage. The wife will not differentiate between her husband and stranger. And the most epic one is that this law can be misused.
There is no need to protect such an institution in which a woman is stabbed, betrayed and injured by the person who was suppose to protect her and she is treated as a chattel or property. People are not aware of repercussions of this act. Worldwide studies reveals that the health problems caused by this act include HIV, other sexually transmitted diseases, vaginal bleeding, genital infection, chronic pelvic pain and so on. It also causes anxiety, depression, and emotional distress. Even the children health and up-bringing is also hampered by witnessing this violence.
This act also infringes many legal and constitutional provisions. Right to Equality of women is infringed. How could state deny equal protection of law for a particular set of women? In the case of Budhan Chodhary v. State of Bihar , the Hon’ble Supreme Court held that- “Any classification under art 14 is subject to reasonableness test that can be passed only if the classification has some rationale nexus to the objective the act seeks to achieve.”The exception (2) of sec 375, IPC did not fall under this category and hence it is invalid. Right to life and Personal liberty which includes right to privacy, dignity, even right to abstain from sexual intercourse and to be free from unwanted sexual activity. And section 498-A of IPC in this section cruelty has a wide definition which includes physical and mental cruelty.
Talking about international obligations, India is a member state in Convention on Elimination of All Forms of Discrimination against Women (CEDAW) which recommends that marital rape should be criminalized. Article 2(a) of Declaration on Elimination of Violence Against Women term marital rape as violence. And the state has also enacted The Protection of Women from Domestic Violence, 2005 when one act pertaining to conjugal rights did not infringe it, how could other act do so. There are various laws which protect a woman from strangers, but a woman is not only exploited by strangers, this should be engraved in our minds. And talking about misuse of law, every law can be misused, fearing this consequence laws should be not enacted. Many women in this country themselves are reluctant to complain because of various reasons such as their economic dependence on their husband, the future of their children and family, “log kya kahnege” due to societal so-called norms and values and most prominent one they are ignorant about their rights. These all provisions prima facie proves that marital rape is de facto not de jure in India.
Are there any other reasons for this hostile behaviour of a husband toward his wife? Is it correct to generalize all the husbands as devotees of patriarchal society? Like there is always an exception in inorganic formulas of chemistry, our country is also an exception in a general formula. In India a marriage not only bound two people in duties and responsibilities, but also their families. Thus, the people married have to fulfill all the expectations of the family members. Sometimes the husband and wife are so busy in fulfilling their expectations that they are not able to fulfill their partner’s need. And as stated by Sigmund Frend that physical affection and sexual compulsion are ids . Here we are not talking about bodily needs of husband. Maybe the needs of wife are not fulfilled due to various reasons such as lack of space in house, large family members etc. This may lead to irritation and frustration in them and they did not give consent for sexual activities.
In our country we also has the notion of “good news” which is generally asked by the people to newly married couples, within 6 months of their marriage. When a family consisting of 2 to 4 kids or even more, a wife and old parents are economically dependent on the male member . These socio-economic conditions are also responsible for this notion.
We cannot blame only husbands, as this patriarchal society has defined a man as invincible. And in order to meet that very definition they end up in trap.
Thus, this society acts as a vicious cycle not only for women, but also for men.
Inspite of all these notions we forget that a wife is now a separate legal entity. Many countries have enacted this provision, now it is time that India should also look forward for it. We know that India’s maturity and illiteracy did not permit it, but creating awareness and dissolving this false consciousness (which is there so that husband can fulfill their lust and desire) will be a good step.
END NOTES
1. Section 375 of Indian Penal Code, 1860 (herein referred as “IPC”)
2. Sir Matthew Hale quoted in Rosemarie Tong, Women, Sex and Law,94
3. AIR 1991 SC 207
4. Policy Brief, Marital Rape and its impacts: A policy Briefing for Kenyan Members of Parliament.
5. Article 14 of Constitution of India, 1950. This states that state shall not deny to any person equality before law and equal protection of law.
6. AIR 1955 SC 191
7. Article 21 of the Constitution of India, 1950. This states that no person shall be deprived of his life or personal liberty except according to procedure established by law.
8. Sec 498 of Indian Penal Code, 1860 is to protect married women from being subjected to cruelty by husband or his relatives.
9. Violence against women shall be understood to encompass, but not be limited to, the following: (a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation; (b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution;(c) Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.
10. An Austrian Neurologist and founder of psychoanalysis.
11. basic compulsion and desires of human beings
12. Here it means the father of those children and who has to fulfill all the requirements of his family.
