Introduction
The issue of marital rape is one of the taboos of our society. Our Indian Penal Code, 1860 punishes a man who commits rape but is silent on the concept of marital rape. As per the patriarchal domination of men in our society women were treated as chattels. Women are treated as goods owned, by the father before the marriage and by the husband after the marriage. Mankind does not punish marital rape, so we should ask this question to ourselves; it is acceptable to discriminate against a woman just because she is married to the man who raped her?
Marriage creates the conjugal rights between the spouses and having sexual intercourse is one the rights of the marriage therefore, there could be no rape between the spouses. A man could not be prosecuted for raping his wife because she is his possession.
Rape
The Indian Penal Code, 1860 provides us with the definition of rape under Section 375. Exception 2 of the said section says sexual intercourse by a man, with his wife, is not rape. However, the age of the wife should be below 15 years. And the punishment that is provided under section 376 is of rape and not marital rape. This law contradicts with the ‘The protection of children from sexual offenses Act, 2012’ (POCSO). The Act says that it is an offense to have sexual intercourse with any woman under the age of 18 years of age. It doesn’t matter whether the girl is married or not. Now, the sexual intercourse with your wife, if she is within the age of 15-18 years, will not be rape as per IPC. Therefore, here the law contradicts another law.
Why the continuance?
The irony of Indian society is that marriage is sacred in India. However, it is legal to rape your wife. One of the factors for not penalizing the marital rape is that then it would cause an unnecessary breakup of marriages. As it will provide one more factor for taking a divorce. The revengeful wives are waiting for the opportunity for sending their husbands to jails and it will be an easy tool for harassing husbands. Another reason for its continuance is that is very difficult to prove marital rape. It is difficult to prove the consent given by a wife. But just because something is difficult to prove, doesn’t mean we can’t have a law against it.
Violation of Rights
Our Indian Constitution provides us with a certain fundamental right that needs to be protected. Article 21 says the citizens have the right to protection of life and personal liberty and the right to dignity is a part of it. The rights should protect the modesty of the woman. Non-criminalization of marital rape violates Article 21. Article 14 also provides us the Right to Equality for every person. It states that the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The exception of IPC is unconstitutional and violates the Right to Equality as it decriminalizes rape when committed by a lawfully wedded husband of the victim.
Other legal Remedies
Section 498(a) of the Indian Penal Code, 1860 protects women from any kind of physical, mental, and emotional harassment. As per this section, cruelty is the any willful conduct of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to the life or health of the woman. The punishment of rape may extend to three years and shall also be liable to fine. The marital rape makes up cruelty too and the cruelty can be the ground of divorce.
The Domestic Violence Act gives protection to the woman. The Act describes cruelty in various ways. E.g. not taking proper care of the wife, torturing, abusing, and beating, humiliating her body or her parents. It also includes sexual violence.
Conclusion
In India, people are too much concerned about their image in society. Instead of thinking about whether they can accept a thing or not, they will think that whether society will accept it. People can tolerate and accept any wrong done to them but will not take any kind of legal help. They have to maintain their image in society. Marital rape is a serious threat to society. A woman has to live with the assailant every day. This will lead to physical as well as mental torture for the woman. To stop this, women have to fight for it, before it’s too late.