Marriage as defined, is ‘the legally or formally recognized union of two people as partners in a personal relationship’.
“It is nowhere mentioned that marriage is a legal document giving full rights to the husband to have intercourse with his wife forcefully and without consent. It is we who have assumed that once married, the husband has full right and control over us,” says Swati Makhija, a city-based lifestyle coach.
According to a report, Justice J.B. Pardiwala of the Gujarat High Court while presiding over a case involving a woman who accused her husband of sexually assault, repeatedly forced sex and mental and physical torture ruled that the husband could not be charged with rape in this case since the Indian Penal Code states that “sexual acts by a man with his own wife is not rape” but can be charged with sexual harassment and spousal cruelty.
He also expressed dismay at the limitations of the law and advocated for the criminalisation of marital rape, saying that outlawing non-consensual sex in a marriage is the first necessary step in teaching societies that dehumanised treatment of women will not be tolerated. Marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalized.
“Marital rape in India, in the first place, doesn’t even gets registered because most of the ladies, even those who are decently educated, don’t bother to file a rape case against the spouse. Why so? Because they have already taken for granted that after marriage, consent on such intimate matters doesn’t matter. Even if you deny, you are forced into it,” she adds.
Sadly, this may indeed be the reality considering a report by National Family Health Survey that states that more than 80 per cent of married women who have experienced sexual violence named their current spouse as the perpetrator.
“Marital rape is undoubtedly a conclusive offence. No question that it should be a legal criminal offence. It is a serious issue and a horrific reality of the marriage system,” opines Manjiri Prabhu, Author and Director, Pune International Literary Festival.
“I believe that a woman should have a choice always to do whatever she wishes and when. She should have the freedom and right to live a life of her choice, the freedom to choose whom to love, the choice to bear children or not and when. Her opinion has to matter. At the same time, this involves taking responsibility for your choices. Force of any kind, whether physical or mental, abusive, violent or passive is and should always be regarded as offensive.
“Having said this, binding marital sexual abuse into a legal offence to punish perpetrators, although tempting, can raise some questions. The law works on proof. And proving marital rape can probably be more difficult, since it has more to do with the woman’s consent, the husband’s right, soft abuse and force and with almost always no witnesses. The word of the woman would be the ultimate proof. And although most cases would be genuine, the occasional misuse of law is also possible. If this can be surmounted, treating marital sexual abuse or rape as a criminal offence would be the best thing to happen to marriages,” she adds.
Being affirmative on the fact that it entirely depends on the wife, how she wants the issue to be treated, Kalpana Gandhi, a social worker, says “Till now, forced sex or sexual violence by a husband on his wife is not considered as rape as the IPC doesn’t suggest it. But if a woman complains so, it will be considered under sexual harassment and spousal cruelty after proper scrutiny. However, the punishment for which is comparatively less than rapes.
“This has happened because no one ever thought of this in such an explicit way. Even the woman thought it is her ‘dharm’ to bow down in front of her husband at such situations. Now when we have started speaking about it, it is definitely going to bring a positive change,” she adds.
“Several legal angles have to be scrutinised before actually proving that this was a case of marital rapes. Sexual intercourse or rapes can be medically detected but if it was forced or not, it still lies in grey waters,” comments Brijesh Bakshi, entreprenuer.
“The case cannot be considered on just the statement of the woman. Agreed that in some cases the consequences can be extreme but woman can also use it to extract money from the husband or satisfy her other motives. I do thing that this proposal to criminalise sexual rape could be considered, but I also believe that it should only be done after detailed examination of all the other factors,” he adds.
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