Marital rape is a relatively new concept in legal terms, but while most of the Western world has criminalised the offence, the Indian Government urges courts to withhold the concept that consent is inbuilt into marriage. The first country to criminalise marital rape was the Soviet Union in 1922.
Introduction
Marital rape or spousal rape is the act of sexual intercourse with one’s spouse without their consent. The lack of consent is the primary defining factor and the act need not involve physical violence.
The Delhi High Court is hearing a batch of petitions challenging the exception to Section 375 of the Indian Penal Code (IPC), which exempts spouses from being prosecuted for rape within marriage.
Petitioners argue that since courts have recognised that consent can be withdrawn even during sex, the assumption of consent in perpetuity cannot be valid.
The Indian Context
In 2017, the Union Government told the court that removing the marital rape exception would destabilise the institution of marriage and be used by wives to punish their husbands.
Continuing with that stance, the Centre recently told the Delhi High Court that just because other countries have criminalised marital rape, India doesn’t have to follow them.
The Delhi government has also defended the law, saying that women, who may be raped by their husbands, have other legal recourses such as filing for divorce or registering a case of domestic violence.
Politicians’ Stance: The then Minister of State for Home Affairs Haribhai Parthibhai Chaudhary and the then Union Minister for Women and Child Development Maneka Gandhi have both expressed views against criminalising marital rape, citing social customs and the sacramental nature of marriage in India.
Understanding Marital Rape in India
Definition: Marital rape or spousal rape involves sexual intercourse with one’s spouse without consent. Historically, sexual intercourse within marriage was regarded as a spouse’s right.
Prevalence: In 1999, a WHO study in Tajikistan found that 47% of women reported being forced to have sex by their husband. In Western countries, the number is significantly lower, with a nine-nation EU study in 2009 finding that current and former partners were the perpetrators of 25% of all sexual assaults.
Effects: Victims of marital rape often live with their perpetrators and are financially dependent on them, making escape difficult.
Historical Context
Historically, rape was seen as a crime against a husband or father’s property. A husband could not rape his wife because she was considered his property.
By the 1960s and 70s, most Western countries criminalised marital rape. The Soviet Union was the first to do so in 1922, with the UK following in 1991 and the US in 1993.
Legal Evolution: In the UK, the law exempting spouses from rape charges was struck down in the landmark case of R v R. In the US, marital rape laws vary by state, with some requiring proof of excessive force.
Legal Systems and Global Trends
As of 2019, marital rape has been criminalised in 150 countries. However, in some countries like India, Bangladesh, and Sri Lanka, laws specify that forced intercourse within a marriage cannot be considered rape.
In some countries, the law prohibits marital rape only if the wife is under a certain age or if the spouses are legally separated.
Social Stigma: Women in several South Asian countries fear resisting their husbands' sexual advances due to potential beatings. In Mali, 74% of women believe a husband is justified in beating his wife if she refuses sex.
Challenges in Prosecution
Marital rape is underreported, with a 1999 Canadian survey finding that 78% of sexual assaults were not reported to the police.
Proving Non-Consent: It is difficult to establish whether consent was given, as married couples frequently consent to sex.
Perception of Severity: Marital rape is often seen as less reprehensible than rape outside of marriage. Even when prosecuted, courts often pass shorter sentences.
The Debate in India
According to the 2019 National Crime Records Bureau (NCRB), rape was the fourth most common crime against women in India, with an average of 88 cases occurring daily. In 94% of cases, rapes were committed by perpetrators known to the victim.
Section 375 IPC: Sexual acts by a man against a woman against her free will constitute rape, but there are exceptions. One protects medical interventions, and the other states that “sexual intercourse or sexual acts by a man with his own wife” when the wife is above 18, does not constitute rape.
Legal Recourse: Marital rape of an adult wife, who is separated from her husband, is a criminal offence. Other married women subjected to sexual abuse by their husbands may request financial compensation but marital rape remains a misdemeanour.
Conclusion
Cultural and Social Barriers: Implementing legal change in India is challenging due to high proof barriers and social stigma.
The ongoing debate highlights the need for a comprehensive legal framework and societal change to address the issue of marital rape effectively.
International Precedents: Learning from other countries' experiences could guide India in framing laws that balance cultural sensitivities with the protection of individual rights.
Legal and Social Reforms: A combined approach involving legal reforms and awareness campaigns can help in creating a society where marital rape is recognised as a serious crime.
Advocacy and Education: Continued advocacy and education are essential in shifting societal norms and ensuring the protection of women's rights within marriage.
Support Systems: Strengthening support systems and providing resources for victims of marital rape can help them seek justice and rebuild their lives.
Note: In this CAPF essay, the world limit has been crossed to give you more information, you can take relevant portions as per your need. Further, we have given subheadings for your reference. When you write in the UPSC exam, you don't need to do that.
Relevance to UPSC CAPF Exam
This article is important for UPSC CAPF Assistant Commandant exam preparation as it covers a significant social issue relevant to current affairs and legal reforms.
Understanding the global movement to criminalise marital rape, its historical context, and the challenges faced in India provides comprehensive insights for essay writing and interviews.
This topic aligns with the UPSC CAPF AC syllabus 2024, CAPF AC essay writing tips, and current affairs. Knowledge of such issues is also beneficial for exams like CDS, NDA, SSB, AFCAT, CSE, IAS, IB ACIO.
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