Criminalization of Marital Rape: The Issue and Debate| Social Issues, Polity & Governance

 
Marital rape refers to any non-consensual sexual act or penetration that occurs between two people who are married or in a similar intimate relationship, where one partner forces the other to engage in sexual activity against their will. It is a form of sexual violence and is a serious violation of a person's bodily autonomy and human rights. The debate related to marital rape has drawn much public attention in recent years.

 

Image Credit: The Indian Express

Until recently, many countries did not recognize marital rape as a crime because they viewed it as part of the obligations of marriage. In India Section 375 of IPC defines rape which has excluded the sexual relation between spouses even without consent who are adult as rape. However, over the years, there has been a growing recognition of the harmful impact of marital rape on the victims, and many countries have now criminalized it.

Arguments in favour:

Marital rape refers to non-consensual sexual acts or penetration between two people who are married or in a similar intimate relationship. In India, many argue that the Protection of Women from Domestic Violence Act of 2005 covers the issue of marital rape, as "sexual abuse" is defined as one of the act or conducts that constitutes "domestic violence." However, the act is considered inadequate for dealing with marital rape due to two reasons.

Firstly, the act does not explicitly define "rape" as is defined in Section 375 of the IPC. And hence the atrocities goes unreported and unaccounted for.

Secondly, the Domestic Violence Act has been deemed a "civil law" by the courts, and the accused can get away without any jail term. Therefore, the current law does not have provisions for women who want to file criminal cases against their husbands for raping them.

Third, the exceptions for marital rape are based on the assumption that when a couple gets married, the woman gives consent in perpetuity to her husband and that there is a reasonable expectation of sex in marriage. However, these assumptions are problematic as they ignore the fact that rape is a tool of torture used by abusive husbands.

Fourth, it is in violation of Article 14 of the Constitution of India of Right to Equality as it discriminates between the women of certain ages with regard to victimization of sexual abuse.

It is also in violation of Article 21 of the Constitution as it takes away the dignity of the woman who is subject to such sexual abuse and yet without a legal remedy, which brings the failure of justice available to its citizen.

Arguments in against:

The article presents several reasons why marital rape has not been criminalized in India yet. There are some serious concern that has been pointed out by the experts.

One of the main concerns is the potential misuse of the law, as seen with the dowry cases, leading to "legal terrorism." Experience shows legislation like Section 498A of IPC has been misused rampantly which has resulted into loss of its legal sanctity. What guarantee is there that the same would not happen with Marital rape as well.

Another issue is the burden of proof in marital rape cases, which can be difficult to apply. Normally in criminal cases the burden of proof lies on the prosecution. However with regard to marital rape taking place in the confinement of the four walls become difficult to be proved where the Court will have to totally rely on the testimony of the complainant and conviction solely based upon the testimony of complainant is a dangerous trend to be set out in legal proceedings.

There is also the concern that criminalizing marital rape would lead to the breakdown of the institution of marriage, and there have been calls for gender neutrality in defining rape. In Indian society the institution of marriage is still considered to be sacramental largely. Criminalizing marital rape will take away the sacramental nature and convert it into a purely civil contract which may have a dire consequences on the entire society.

Third, alternate legal remedy is available to the wife who has or is being subject to such sexual abuse in the form of divorce. The law provides the equal right to separation of marriage to both men and women or at least to majority of the people except in some cases where personal law becomes applicable, but even there the road ahead is progressive and the society is evolving into an equal one.