MARITAL RAPE IN INDIA

 

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Context:

The Supreme Court is currently hearing petitions that seek to criminalize Marital Rape in India.

Details

The Supreme Court is currently considering pleas that aim to amend a law which states that a man cannot be prosecuted for raping his wife. This law has been a topic of significant debate, especially in the context of the high levels of violence within marriages in India.

The Union government through the Ministry of Home Affairs highlighted that a man does not have a fundamental right to force sex on his wife. However, there are already sufficient laws to protect married women from sexual violence. The government suggests that criminalizing marital rape may be "excessively harsh" and might disrupt the institution of marriage.

About Marital Rape

Marital rape is when one partner in a marriage has sexual relations with the other without their consent. The crucial point here is consent; it’s not always about physical force. This form of sexual violence is recognized as domestic violence and sexual harassment.

In the past, society often viewed sexual relations within marriage as a right. However, starting in the 1980s, women’s rights groups began advocating for sexual autonomy, emphasizing that consent is necessary even within marriage. As a result, over 150 countries have criminalized marital rape.

Situation in India

• According to the National Health and Family Survey (NFHS-4) report, nearly 5.4% of women reported experiencing marital rape, though many experts believe the actual number is higher due to under-reporting.
• The National Crime Records Bureau (NCRB) report indicates that about 70% of Indian women face domestic violence.
• Nearly 1 out of 3 women in the age group 18-49 have suffered some form of spousal abuse; and around 6% have suffered sexual violence, according to the National Family Health Survey (NFHS-5).
• Currently, Indian law does not recognize marital rape. Section 375 of the Indian Penal Code (IPC) states that a husband cannot be charged with raping his wife, as long as she is above 15 years old. 

Steps taken to protect women 

1. Protection of Women from Domestic Violence Act 2005 to protect women from various forms of domestic violence, including sexual violence.
2. Dowry Prohibition Act 1961 to prevent dowry-related abuses.
3. Prohibition of Child Marriage Act 2006 to protect minors from early marriage.
4. Investigation Tracking System for Sexual Offences is an online tool to monitor sexual assault cases.
5. National Database on Sexual Offenders to assist law enforcement in tracking sexual offenders.
6. Emergency Response Support System (ERSS) provides a single emergency number for women in distress.
7. One-Stop Centre offers various services like medical aid, police help, and legal assistance for women affected by violence.

Arguments for Criminalizing Marital Rape

1. It violates fundamental rights guaranteed by the Constitution, including the right to equality and personal freedom.
2. Criminalizing marital rape would protect women’s rights in marriage and ensure that they are treated equally.
3. Marriage is a partnership that requires ongoing consent, not a blanket agreement for a lifetime. Current laws provide men with an unfair advantage.
4. All individuals must be treated equally before the law, by criminalizing marital rape, the law would recognize that no matter who commits it, rape is a crime.
5. Recognizing marital rape as a crime could help reduce domestic violence, it would send a strong message that any form of violence within marriage is unacceptable.
6. Many countries have already criminalized marital rape, therefore aligning with progressive global standards would improve India’s human rights record and show commitment to gender equality.
7. Criminalizing marital rape would empower women to speak out against abuse and seek justice, it would provide them with legal recourse to protect themselves from sexual violence.

Important Reports The 42nd Law Commission Report recommended that marital rape should not even be labelled as "rape" in a legal sense. They acknowledge that forcing a spouse into sexual acts is a serious issue but not to classify it under the same terminology as other forms of rape. The 172nd Law Commission Report recommended that forced sexual intercourse should be treated like any other form of violence against women, they highlighted that a wife should be given the same legal protection as anyone else. Justice Verma Committee Report stated that the law should not distinguish between rape within marriage and outside it. The report highlighted that if a husband forces his wife into sexual acts, it should be treated as a serious crime, just like any other act of violence. They noted international examples, including a decision from the European Commission of Human Rights, which argued that a rapist remains a rapist, regardless of their relationship with the victim.

Arguments Against Criminalizing Marital Rape

1. Some people believe that making marital rape a crime could damage the bond between husbands and wives, they highlight that it might create an environment of distrust, where one partner fears being accused of wrongdoing. This could lead to tension and conflict in what should be a supportive relationship.
2. There are concerns that criminalizing marital rape could lead to false accusations. Some fear that a partner might misuse the law to gain an advantage in a divorce or custody battle.
3. There are already adequate laws to protect women from sexual violence, even within marriage, and adding a new law would not be required as current laws are designed to handle issues of consent and violence.  
4. Marriage is seen as a sacred institution with its rights and responsibilities in many cultures, criminalizing marital rape could interfere with these cultural beliefs, society see marriage as a private matter, where outside interference, including the law, may not be welcome or appropriate.
5. Proving marital rape in court will be very difficult, gathering evidence and showing that non-consent occurred may lead to complex legal battles.
6. There are concerns about the social stigma that might arise from labelling someone a rapist, this stigma could discourage women from reporting incidents of marital rape.

Challenges

1. Many Indians maintain traditional beliefs about marriage that once a woman gets married, she must fulfil her husband's all needs, this mindset makes it hard for people to see marital rape as a serious issue.
2. Victims of marital rape usually fear being judged by society, they worry about their families and communities not believing them or shaming them, this fear can prevent many women from speaking out.
3. The absence of specific laws against marital rape creates hurdles for victims to seek justice. Many women face barriers in reporting such crimes due to inadequate support from the police and legal systems.
4. Many people, including women, may not understand that marital rape is a crime. There is a lack of education and awareness about consent and sexual rights, which makes it difficult to change perceptions.

Way Forward

• The Government should amend the IPC to include marital rape as a criminal offence to send a strong message that consent is necessary for all relationships, including marriage.
• Public campaigns can educate people about the importance of consent and the rights of women. Schools, colleges, and community centres can host workshops to aware people that marital rape is a crime.
• There is a need to establish support systems for victims;  including facilities like counselling services, legal aid, and safe spaces for women to seek help. Police training can also improve the response to complaints.
• Involving men in the conversation about consent and respect in relationships is important. Men can play an essential role in changing societal attitudes by speaking out against marital rape and supporting women's rights.
• The government should Introduce laws that protect all parties equally to promote fairness and justice in society. 

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MARITAL RAPE

Source: 

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PRACTICE QUESTION Q.Critically analyze the potential socio-cultural impacts of criminalizing marital rape in India. How might such a legal change affect traditional views on marriage and gender roles in Indian society? (250 words)