Among all kinds of satisfactions human being enjoy, sex always occupies higher position and a casual physical need of every human being at certain saturated age period. The world being male dominated, where men are the earning members, Women are always being suppressed and are dependent. But the scenario now has changed up to a large extent as now a days women are also equally taking part in the economic activities of the society. In the country like India, the situation is likely to be the same as it was earlier. This becomes evident from the fact that there has been an increase in the rate of violence against women in the past few decades. One of them being “RAPE”.
PRESENT LEGAL SCENARIO IN INDIA:-
Rape is as stigma which exists in the society from a long time. It is considered to be one of the brutal crimes against the mankind. Having sexual intercourse with a woman against her will or without her free consent is traditionally defined as rape, which laws of most countries view as an awkward crime and provide for strict punishment.
The rape victim i.e. a woman as woman cannot commit rape due to biological reasons. She is traumatized after the event; it is very difficult for a woman to come out of this trauma. Rape in India is a cognizable offence (means capable of being known). There are many provisions in various Acts. The word rape is legally defined under section 375 of Indian Penal Code, 1860. It defines the rape and also prescribes its punishment.
Whenever a man penetrates or does sexual intercourse with a woman without her consent or will it amounts to rape. Penetration here means that only a slightest of the touch of penis to vagina amounts to rape, unruptured hymen of woman does not prove that rape was not committed. There are exceptions to it also i.e. when a man does sexual intercourse with his wife who is above 15 years of age. The act of committing rape to his own wife is termed as “MARITAL RAPE” in the legal language.
Here we will be dealing with this exception only. The exception which states that when a man does sexual intercourse with his wife without her free consent, does not amount to rape according to the provisions given in the Indian laws. But the question here arises that, why it is not considered so? Does a women looses basic human rights after marriage? Is she becoming a slave after marriage? These are some of the questions which need a quick and intelligible reply.
There have been many attempts from many jurists and scholars regarding criminalizing “marital rape” and many reports were presented before the govt. but the situation remained the same.
MARITAL RAPE AND VIOLATION OF HUMAN RIGHTS:-
Human beings, by virtue of their being human possess some inalienable rights, known as ‘human rights’. These rights should be unaltered immaterial whatever may be the situation. After the marriage also women should be given equal respect and chance to enhance her identity as it is clearly prescribed by our constitution under Article 21 and 19(a).
According to my point of view, marital rapes should be considered as a crime and the punishments should be given accordingly. This becomes more and more effective by the fact that where a husband causes some physical injury to his wife, he is punishable under the appropriate offence as per the provisions made under ‘Domestic Violence Act’ and the fact that he is the husband of the victim is not an extenuating circumstance recognized by law; if so, there is no reason why concession should be made in the matter of offence of rape/sexual assault where the wife happens to be above 15/16 years.
In simple words, when a person is charged for any sort of physical as well as mental injury to his/her spouse under domestic scenario, then why it is not so when it comes to their sexual relationship. It is also against the Hindu religion, tradition and values that a husband rapes his wife by exercising threat, fear, pressure and force. “Hindu religion and its literature stress on purity, cleanliness and behavior of good faith in conjugal life(the rights which the married couples possess over each other, are called conjugal rights), It cannot be said that Hindu religion and traditions exempts the heinous act of rape to wife. Sexual intercourse in conjugal life is a normal course of behavior, which must be based on consent. No religion may ever take it as lawful because the aim of a good religion is not to hate or cause loss to anyone.
“In a study conducted by WHO, it has been reported that near about 12% women are sexually abused by their husbands during pregnancy.”
Whereas, a marriage does not mean women to turn into slaves. Thus, women do not lose human rights because of marriage. So long as a person lives as a human being he/she is entitled to exercise those in-born and natural human rights. To say that the husband can rape his wife after the marriage is to deny independent existence, right to live with self respect and right to self-determination. Any act which results in non-existence of women, adversely affects on self-respect of women, infringes upon right of women to independent decision making or which makes women slaves or an object or property is not compatible in the context of modern world, rather it is a stone-age thought.
To forcibly compel women to use an organ of her body against her will is serious violation of her right to live with dignity, right to self-determination and it is an abuse of her human rights. The Constitution has guaranteed the right to privacy. Therefore, in the light of those international instruments on human rights, it cannot be said that marital rape is permissible.
“If an act is an offence by its very nature, it is unreasonable to say that it is not the offence merely because of difference in person committing the act. It will yield discriminatory results, if we interpret that an act committed to any other woman is an offence and is not an offence, if the same act is committed to one’s own wife. There is no justification in differentiating between the women who are wives and other women.”
It is beyond imagination that a husband commits rape to his wife, and it is sure that so long as there is love and good faith between husband and wife, there is no situation of rape. It is normal state of affairs, however, sometimes reality of life becomes different and strange than the normal state. Where a wife is treated as an object or property or a means of entertainment and exploitation, her personal health and her needs are ignored in an irrational and inhuman manner and in that situation, an unnatural and brutal act of rape of wife is committed. Such situation may be rarest of rare.
In the recent past, one of the important questions which arose was that, is there any chance that a wife can file a case over husband if he is forcing her to use certain abnormal positions, forcing her to use certain organs which she don’t like… by which even her health is drenching?
I think that, yes, this can be done as per the provision given in sec 377 of IPC which defines ‘unnatural offences’
Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.
Explanation -Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
Therefore, it is imperative in a married life to discourage the brutal act of rape. If marital rape is punishable, a pure, healthy and clean atmosphere will be created in society in places of disorder and imbalance. In our country, law has prohibited child marriage very long ago but this social evil is still in practice. If marital rape is made punishable, it would help eliminate this social evil as well.
It will help in improvising women’s condition in the society and will give her a self-dependent identity .Many health problems which these women face due to this act ,like transmitted infections such as HIV/AIDS, unintended pregnancies, gynecological problems, induced abortions, and adverse pregnancy outcomes, including miscarriage, low birth weight and fetal death will get reduced to a large extent.
Student, College Of Legal Studies,
University of Petroleum and Energy Studies, Dehradun.
[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]