Abstract:
The institution of marriage is a sacrosanct. It is a holy bond of togetherness between two equal individuals to follow the norms of society and further its existence and development. The patriarchal structure of the society with age old believes regarding women still exists that brings the concept of marital rape. It is only when the awareness against the crimes of women is made at large and addressed to the public with a fear infused if the life of a woman is not dignified at par with the others shall uplift the women in real sense.

This article tries to establish that the belated elimination of antiquated marital rape exceptions is a product of the persistence of traditional views of marital relationship and sexism. It exists as a de facto but not de jure.

Introduction:
The inception of Indian Penal Code, 1860 (Henceforth referred as Act) endowed India with the principles of Victorian era until the 1972 that ensued a public uproar against the pervasiveness of the Indian society regarding the offence of rape. Since then there had been amendments made for the protection of women but it was only in 2013 that the Indian legal system followed on to the steps of judicial activism and brought about the major amendments and needed laws to the extent of death penalty for outraging the modesty of a woman.

Amidst this activism, various NGOs for women rights brought in light the unpopular concept of Marital Rape but the Act failed to criminalize the same due to the exception 2 under section 375 that provides an exemption to rape for a man having sexual intercourse with his own wife; provided the wife is above the age of 15 years.

Present Scenario:
The most recent voice against marital rape held the exception of rape as arbitrary and in violation of Article 14, Article 15(3) and Article 21 of the Constitution of India; Protection of Human Rights Act, 1933; and Convention on Elimination of All Forms of Discrimination Against Women (Henceforth referred as ‘CEDAW’), but only in the view of unmarried child and married child 18 years or below. Though the acknowledgment of the existence, the 2019 bill to criminalize martial rape and extent the scope of the same failed in the Rajya Sabha for the government argues over the acceptability of a law that does not adhere to the age old custom per se.

Issue:
The denial of criminalizing marital rape has been backed by the argument of India being a country bound by its customs and culture where people are vulnerable towards the same due to the various factors of illiteracy, poverty and age old patriarchal society where the women have been addressed as the property of her husband whose Dharma is to satisfy her husband both emotionally and physically, to bear his child, to consent to sexual relation because of her relationship as wife and to concur his decisions unconditionally.

With time, it was alleged on a logical premise by the difficulty in proving such accusation because the marriage is a personal cause where the State shall infringe the sanctity of the institution and the complication in deciding the instance of no consent, I.e. rape, considering the previous instances where the wife had consented to the husband. Hence, the concept of marital rape dwells around the social and legal lacunae where it exists as de facto but not de jure intending the failure of constitutional law within the doors of matrimonial home due to the relationship status of the victim endowed on her by the cultural values and customs of the society in the name of marriage that involves a vested interest of an individual.

Hypothesis:
The Judiciary acknowledged the term ‘No’ by any women for sexual involvement, distinctly is an expressed intimidation of no consent. The same Judiciary held the exception 2 under Section 375 of the Act as an unreasonable classification under Article 14 of the Constitution of India while stating that every woman has full autonomy over her own body, recognized her right to bodily integrity, included the right to privacy within the extent of sexual choice and interpreted the same under civil laws as a ground for judicial separation for mental cruelty amounting to domestic violence.

The contradictory views of the Government of India on one hand being unprepared to accept a change and on the other hand fearing a fallacious motivated wife using the remedy for her vested interest; the duty of the Judiciary to protect the fundamental rights of the citizens and the expected adherence of the laws to the customs; all such issues find resolution when the duty of the Government to work for the welfare of its citizens inclusive of obligation to international convention and the judicial activism of the Judiciary is found in precedents to be executed for the rights of the people while having accountability and balance within the society through cases that proved the laws exist to meet the end of justice and not to frustrate it by complicated procedures where even one person is a class in itself.

Argument:
The human rights includes the right to life inclusive of dignity and privacy which exists as Jus Cogens among the international community. It mandates the adherence to the peremptory norms of the international laws which India abides by invoking Article 21 and Article 51 of the Constitution of India being a signatory to CEDAW that requires due diligence for criminalizing marital rape by the national laws.

The offence of rape is not a mere crime against the person of woman but against the society at large. It is a crime against basic human rights and violates the most cherished right of a life with dignity.

Such exception of marital rape is an outright encouragement of the society to commit domineering crimes against women without any fear of law. It implies the failure of the applicability of laws within the closed doors of matrimonial home due to the cultural positioning of marriage as an intimate subject of two individuals but at the same time, the marital privacy invasion fails when the laws of judicial separation is accepted by the Judiciary.

Along the same line, it is the responsibility of the society to receive that the only privacy at stake is that of the woman and her sexual privacy is that of her own irrespective of her being married or not. Hence, marriage is not a concept authorizing sexual intercourse in lieu of consent.

The existence of contradictory arguments against criminalizing marital rape puts out women to be deemed of being a tolerant and submissive one in a relation. At one hand when the change is stated non suitable for the Indian society by naming it as a western concept due to higher rate of illiteracy, on the other hand, the fear of abusive usage negates the former.

Further, there does exists civil remedies for marital rape as an offence under domestic violence but the fact that it creates an unreasonable classification by differentiating between rape of unmarried as a criminal offense and that of married into judicial separation and remedies yet would be inadmissible due to communication privilege between spouses.

Conclusion:
Marital rape is prevalent for ages as a social problem though silence has been maintained around it. The United Nations Population Fund in a survey found that two-thirds of married Indian women have been forced into sex by their husbands. The National Family Health Survey of India (2005-2006) in its study of over 1.25 lakhs women in 29 states observed that 40 percent of married women in the age group of 15-49, at least once, had experienced physical, sexual or emotional violence perpetrated by spouses.

These are numerical figures though the qualitative analysis reveals that marital rape and sexual violation is not merely related to episodic forced or penetrative sex, rather it is a larger issue. It is not an offense of a person of woman but is a public cause.

The criminalization of marital rape as a wrong is proved to be accepted by the Indian legal system by its own arguments of its execution being denied only on the basis of acceptability by the society.

The awareness among the people of society with stringent, accountable and well implemented laws shall be a boon to the victims and help to cure the deeply rooted sexism, patriarchal structure, asymmetrical relation within a marriage and in real sense provide justice and development of the suppressed.

Every landmark law has been a game changer within a society that got accepted with time. From abolition of Sati to legalizing LGBT; the obligation of the Government is to fulfill the objective of the Constitution of India to protect its citizens by providing them a safe home ensuing welfare and justice.

References:

• CEDAW General Recommendation
• Indian Penal Code, 1860
• Hindu marriage Act, 1955
• Indian Evidence Act, 1872
• Naz Foundation v. The Govt. Of N.C.T Delhi
• Shayaro Bano v. Union of India
• Chiranjit Lal Chaudhury v. Union of India
• Apoorva Ramaswamy, Anti-Rape Laws in India Prior to the Criminal Law Amendment Act 2013

Written By: Neha Mishra, A 4th year student of BA.LLB(H) from Amity University, Kolkata.