Whether marital rape should be criminalized or not?
Introduction:
Non-consensual sexual intercourse between a married couple is called marital rape. Marital rape is a very controversial and sensitive issue which sparks many debates across the world. A rape committed under the realm of sacred marriage is called marital rape. Marital rape is not yet considered a crime under Indian legislation due to multiple reasons.
Arguments in Favor of Criminalization of marital rape:
• Consent: The main argument that supports the criminalization of marital rape is the essential premise of consent. Marriage should not be a license for unconsented sexual access. A person has a right to control their body and shouldn’t be forced into sexual activities whether married or not. Criminalizing marital rape will bring about societal shift towards prioritizing consent in sexual relationships.
• Equality and Human Rights: the issue of marital rape should be in terms of human rights and gender equality. Non-criminalization marital rape amounts denying legal protection to victim and supporting the idea that spouses have right over each other’s body without consent. Criminalizing marital rape is a step towards promoting equality withing the sacred institution of marriage. Everyone is to be treated equally under article 14 and such rights can be ignored even by their spouses.
• Bodily Integrity is intrinsic to Article 21: A woman has the right to bodily integrity and privacy under Article 21 of the Indian constitution and has the right to refuse sexual relations with her husband. The supreme court has included freedom to make choices related to sexual activities under Article 21.
• Deterrence and Justice: marital rape should be discouraged and criminalizing it provides a just and equitable framework of redressal to sexual violences in a marriage. Every individual has a right to be protected regardless of their marital status.
Arguments Against Criminalization:
• Privacy and the Sanctity of Marriage: It would be inappropriate for the state to interfere in private things like marriage because it could result in encroaching the autonomy and intimacy inherent in marriage.
• Burden on Legal System: The legal system is not equipped enough to handle the complexities of marital relationships. The legal system is already burdened, and such cases will lead to unintended consequences such as false accusations which will result in overburdening the judiciary and legislation.
• Cultural and Religious Perspectives: marital rape is greatly influenced by cultural and religious beliefs. The legal framework may clash with the diversity of cultural norms and deeply held beliefs about marriage and family.
• Misuse of law: It may be a simple tool for the women to harass the husbands using law. Section 498A of IPC i.e. Harassment caused to a married woman by her husband and in-laws has been misused too.
Legislation relating to marital rape
• Supreme Court: In September 2022, the supreme court held that marital rape was an exception under Medical Termination of Pregnancy Act.
• Law Commission of India: The law commission of India in 2000 rejected the need to remove the marital rape exception with the view to reform laws on sexual violence in India.
• Justice J S Verma Committee: In 2012, the Justice JS Verma Committee recommended criminalizing marital rape, but it was not acted on.
• Parliament: When the issue of marital rape was questioned in a parliament session in 2015 it was dismissed because marriage is considered sacred in Indian society.
Case laws
• State of Karnataka vs Krishnappa (1993): In this case the supreme court held that “Sexual violence, as well as being humiliated, is an unlawful intrusion into the privacy and sanctity of a woman. Likewise, the court ruled that non-consensual sexual interaction amounts to physical and sexual violence.”
• Joseph Shine vs Union of India (2018): In this case, Justice Chandrachud posed the question of whether a woman or a man loses sexual autonomy when they marry. I think ‘no’. In addition, he noted that “the right to refuse sex should also exist after marriage.”
Conclusion:
A recent survey revealed that nearly 30% of married women are victims of marital rape. There is an ongoing debate about criminalizing marital rape because some people think it is normalized aspect of marriage and do not give much importance to consent. The misconception that marriage is an official certificate to fulfill their sexual desires should be removed. Marriage is a legal contract between 2 people, and it should not be used as a license to have forceful relationship with their spouse. Before husband and wife, they are man and woman, and it should be considered rape even if it is non-consensual and initiated within the 4 walls of a married house. The people of the country should be educated criminalizing marital rape, and it should be spoken more openly and not considered a taboo and only then a cultural shift can be brought that acknowledges the consent of people and challenges the harmful stereotypes of society regarding marriage.
References
• https://www.nextias.com/current-affairs/17-09-2022/criminalisation-of-marital-rape/
• (2019) 3 SCC 39
• (2000) 4 SCC 75
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