Marital rape

Author By : Ropafadzo Mazorodze.
Institution : Vishwakarma University.

Introduction.
Marital rape refers to a type of intimate violence in which one spous is forcing the other into any sexual activity without their consent. It can be in many forms for instance physical force, coercion and lack of approval by the other. Physical force includes physical restraint inorder to prevent the other spouse from escaping, coercion involves using intimidation as a way to instill fear so that the other partner has no choice but to oblique and lack of consent refers to practising any sexual activity when the other partner is unwilling or disapproving. Marital rape lead to physical injuries, Post – Traumatic Stress Disorder (PTSD) and erosion of trust in the marriage. The Supreme Court of India is currently reviewing the issue of marital rape because many cases are spiralling the whole country and woman no longer exercise basic human rights.

Historical Evolution.
Marital rape in India is still a debate even in its historical Evolution which is extracted from the colonial era laws and the Victorian morality. The India Penalty Code (IPC) 1860 explains that a man can have sexual intercourse with his wife any time he wants. If she is above the legal age of marriage which is sixteen years in India then it is not rape . This exception is still a debate in today’s legal system because women’s rights to life, dignity and freedom of choice are violated. The IPC was instituted during the British colonial rule to protect married women under the age of ten from marital rape and in 1940 it was later on raised to fifteen years. The marital rape doctrine has made it difficult to save women from marital rape because women are considered as a men’s property thus he treats her according to his own will.

The role of criminal laws in marital rape.
The Victorian era has later on emphasized that marital rape does not apply to married women . Sexual assaults are only recognized to divorced women or girls under the age of sixteen years in India. Sexual activities are regarded as private issues to married couples. The Dehli High Court encountered a case regarding marital rape and a split verdict in 2015 and 2017 because some were supporting the women for standing up for themselves while some were debating that sex is always consenctual in marriage. In India, criminal laws do not consider marital rape as a crime to married women because the Indian Penal Code, Section 375 ellaborates that there is no non- consenctual sexual intercourse in marriage thus no husband or wife can be seen voicing out rape. However, the Supreme Court is being challenged by Human Rights and International Laws because rape is a criminal activity.

Corporate Governance reforms of marital rape.
The legal and judicial framework of India is currently enacting laws concerning marital rape because it is still a debate to adress it as criminal law or family law. This emergency is crucial since men are continuing to rape their wives in a way of satisfying their own selfish needs thus violating women leaving them with trauma and pain. In Feb 2022 Smriti Irani the Minister for women and child development enlightened the parliament that marital rape should be criminalised because she claimed that every man is a rapist and every marriage is a violent one. I strongly believe that marital rape should be treated under criminal laws because Article 14 of the Constitution rights indicates equality before the law must be adhered to. RIT Foundation v.Union of India presented India to criminlize marital rape.

Key guidelines of marital rape.
Sexual intercourse with a wife under the age of fifteen is considered as rape but with an older woman is not addressed because the court regards it as consenctual sexual intercourse. In India if a husband has sex with his wife without her consent it is not referred to as sex because wives are expected to serve their husbands without complaining. In the past women were not asked for sexual activities by their husbands but in modern days it is now a debate due to the issue of equality between men and women. Furthermore, advocates are bringing to light the importance of stopping marital rape which include honouring human rights, open communication of couples and happy homes. On the other hand, some backward people believe that reporting marital rape destroy marriages as husbands are arrested and divorce their spouses enacting an increase of single mothers.

Regulations of marital rape.
Under the Indian Penal Code (IPC) marital rape is not a crime since there is no need to ask for consense from the wife if they are married. In other countries marital rape is criminalized since it is viewed as non-consenctual sex between spouses. Section 376B of the IPC criminalise rape of adults or divorce and not married women thus prolonging the freedom of married women from marital rape. The Supreme Court is still debating treating marital rape under criminal law because they think it could be ‘excessively harsh’ and ‘disturb’ the institution of marriage. Advocates fear the increase of divorce. However, the co-existance of marital rape violates human rights, women’s autonomy and the issue of equality. Many countries such as United States of America and United Kingdom have criminalized marital rape and husbands are arrested.

Disclosure and transparency norms of marital rape.
Marital rape in India is currently looked over by its legal framework which is still debating it in becoming criminalized. The Indian Penal Code does not treat marital rape with criminal laws and they do not treat it seriously hence women no longer report it. In 2023 the case of Bharatiya Nyaya Sanhita acknowledged the demerits of marital rape and the parliament ruled that it should be illegal and criminalised. However, its protecting the women who are not married women are prone to keep their marital issues private. People in marginalized societies choose to live in marriages where they encounter sexual assaults because some do not know its a crime and some have nowhere to go. Married women usually tolerate marital rape as they enact it in favour of culture and their living environments.

Challenges and criticisms of marital rape.
Women facing marital rape often face criticism from other women and their families. In India marital rape existed long back but people overlooked it because they believed men dont need consent to have sexual intercourse with their wives. The legal system protects girls, bachelorettes, widows and divorcees whilst leaving married women to suffer in the name of saving their marriage. Societies value and prioritize men’s rights over women’s rights hence if a wife complains against sexual violence from their husbands they are silenced. Marital rape survivours do not report because it is not considered a crime hence depression, PTSD and injuries are increasing. Treating marital rape as criminal law will result in many divorce cases but more than one hundred countries treat it as a crime.

Impacts of marital rape.
Marital rape results in health complications such as pain during sex, chronic pelvic pain, vagina bleeding, sexually transmitted diseases such as HIV, genital irritation and urinary-tract infections. There is an emergency of mental issues to women like depression, anxiety, PTSD hence they think its better to commit suicide to find peace. This does not affect women only but it also affects children either during pregnancy or when they are children and adults. Children living in families experiencing marital rape tend to do the same to their wives because they think its the right thing to do. Physical observations are seen such as broken bones, bruises and broken skulls. Women are living in fear of what their husbands are going to do to them and they fear one day they will be killed.

Future directions in regards to marital rape.
Physchologists have researched the cons of marital rape and they concluded that they have to criminalize it under criminal laws. Marital rape is recurring to all ages, races, social classes and geographical spheres. Two-thirds of marital rape victims were firstly violated by their husbands at the age of twenty-five and below. Survivors are currently experiencing severe and long-term physical as well as psychological hardships. Some women are slowly becoming sex addicts and it is very difficult to recover from it. I suggest women are educated on reporting marital abuse to the police because it is surprising their rights. Future philosophers must examine how health care providers, police, religious advisers and counsellors are handling cases of marital rape.

Breaking the silence: on the legality of marital rape in India

Conclusion relation to criminalisation of marital rape.
The criminalisation of marital rape is a vital aspect in legal and society’s spheres to honour women rights. Men must respect their wives and ask for consent before acting in any sexual activities. The government must put laws to erase the existance of marital rape for example Protection of Women from Domestic Violence Act, 2005 (PWDVA). Criminalising marital rape is crucial in ensuring equality, self determination and justice for married women.
References.
1.L Sarkar, Rape within Marriage: Indian and International Perspectives Posted: 1993.
2.https://brooklynworks.brooklaw.edu/bjil/vol41/iss1/3.
3.VAWnet: The National Online Resource Center on Violence Against Women, National Resource Center on Domestic Violence (NRCDV) by Raquel Kennedy Bergen and Elizabeth Barnhill.
4.https://ssrn.com/abstract=5180793.