Introduction:
Marital rape and sexual assault within marriage often confront a barrage of misconceptions that stem from societal beliefs. Marital rape and sexual assault within marriage are serious because they involve hurting someone when they don't want any kind of intimate touching or actions. Sometimes, people don't understand these terms because they think that in a marriage, everything is always okay or that love between a husband and wife can't involve something like rape or assault. But that's not true. These things can happen, and they deeply hurt the person they happen to, especially when they feel they can't speak up because of what others might say. Imagine a situation where a woman tells her husband clearly that she doesn't want to do anything physical, but he doesn't listen and forces her. This is called marital rape. To delve deeper, marital rape occurs when a woman explicitly communicates her unwillingness to engage in any physical intimacy with her husband, yet he disregards her refusal and forces himself upon her. This violation can occur when the husband is in control of his faculties, in a state of intoxication, or under the influence of substances. On the other hand, sexual assault within marriage represents a broader spectrum. It encompasses not only physical violations but also inflicts psychological and emotional harm through non-consensual sexual acts. It extends to instances where a third party is coerced or involved in the couple's sexual activities without their consent. The aftermath of such acts can manifest in various forms – visible physical marks or the invisible yet profound emotional and mental scars. Recovering from this trauma can be a prolonged and arduous journey, often taking years to heal from the torment and rebuild one's sense of self. It's crucial to recognize the severity of these experiences, acknowledging the immense toll they take on the survivor's well-being.
History:
In India, our society has long been patriarchal, where men are often seen as superior while
women are considered mere objects meant to fulfill a man’s desires and serve the purpose of continuing his family line. We’ve grown up hearing phrases like ‘a woman is the honor of her husband's family’ or ‘having a daughter means carrying a burden’. This mentality of male dominance, established by our ancestors, has ingrained the belief that women are weaker and should remain submissive, even taught to maintain distance from men outside their family, a practice known as ‘parda’ was followed. Women were pressured to safeguard the family's honor, with their silence being demanded even in cases of rape, as speaking out was perceived to tarnish the father's reputation. The lack of education among women further perpetuated this cycle, leaving them unaware of their rights, making them ill-equipped to face crises. The terms ‘marital rape’ and ‘sexual assault’ emerged after years of advocating for rights. They gained prominence as cases of domestic violence surged, prompting women to find their voices and demand justice. However, the male-centric societal notion persisted that marriage granted men an entitlement to physical intimacy, irrespective of consent. The idea of women having the right to protect their dignity even within marriage was often dismissed. Consequently, there was an assumption among many men that they couldn't possibly rape their own wives, considering them as possessions. This misconception perpetuated the belief that within marriage, a man's actions were beyond reproach, even if they violated a woman's autonomy.
Section 375 of the IPC :
375. Rape.-- A man is said to commit "rape" if he—
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina,
urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:
First. Against her will.
Second. Without her consent.
Third. With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourth. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifth. With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixth. With or without her consent, when she is under eighteen years of age.
Seventh. When she is unable to communicate consent
Explanation 1.For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2.Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1. A medical procedure or intervention shall not constitute rape.
Exception 2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
Domestic Violence Act 2005:
1. Indirectly addresses marital rape through its inclusion of any form of sexual abuse
within marriage or live-in relationships,
2. It exclusively offers civil remedies. Consequently, victims of marital rape in India lack
the means to directly pursue criminal proceedings against their perpetrators within the
framework of this law.
Case Relevance:
1. HRISHIKESH SAHOO v. STATE OF KARNATAKA - The wife had accused that his husband had sexually assaulted her and her daughter with marital rape and PSCO charges on Hrishikesh Sahoo and with other charges. He was charged under various sections but not under section 375 of the IPC as there is an exception under this section.
2. Kavita vs State of Haryana (2020) - The case dealt with the issue of marital rape and the need for legal protection for women in abusive marital relationships. The High Court of Punjab and Haryana in this case stated that the exception in the Indian Penal Code (IPC) which exempts a husband from the charge of rape was discriminatory and needed to be reviewed.
3. Megha vs Union of India (2021) - The case was filed by a woman who was subjected to sexual violence and abuse by her husband. The case highlighted the need for a comprehensive law to address marital rape and the lack of protection for women in
abusive marital relationships.
Conclusion:
Several countries like England, Australia, and the USA have criminalized marital rape and sexual assault. These acts are incredibly brutal, inflicting psychological and emotional harm. However, even in educated parts of India, the prevalence of marital rape and sexual assault remains alarmingly high. Here, societal norms often pressure women into silence, urging them to preserve marriages and uphold family dignity at the cost of their own suffering. Despite the severity of these crimes, India has yet to criminalize marital rape and sexual assault explicitly. Unlike in other countries where men feel shame and guilt for committing such offenses within marriage, India continues to hold onto the belief that marriage grants a license for unrestricted sexual relations, disregarding a partner's refusal. The fundamental principle of 'No means No' applies universally, whether a person is married or not. If a woman says 'no,' it means she isn't ready or willing. It’s crucial for society to acknowledge that marital rape and sexual assault aren't trivial matters to be overlooked. They’re brutal crimes that lead to severe consequences, even contributing to increased suicide rates. It’s never too late to understand the boundaries within marriage and safeguard women's dignity and rights. Encouraging women to speak up against marital rape and sexual assault is essential, fostering a culture where their voices are heard and respected. To end “ Defending marital rape means knowing a Miss can’t let a man touch her, a Mrs can’t tell him not to” - Economic Times
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