We are now considerably more advanced and live in a society that has undergone significant transformation. Historically, in our male-dominated society, men received greater rights and were viewed as superior to women. They were only seen as being useful for Chulha-Chauka and rearing children. However, things have been improved since then. They now have equal status does men have and walk shoulder to shoulder. Government has passed numerous laws to support their empowerment and has introduced various upliftment programmes, which is truly commendable.

However, married women are victims of hostile treatment they receive by their husbands. Through reports and media, we are exposed to numerous instances of marital rape. Marital rape means an offence of rape committed by a spouse on the other within the jurisdiction of the institution of marriage without her wish, will or consent.

Married women have been facing marital rape since long, though it hasn't been criminalised but amounts to domestic violence, sexual harassment. Thus we can argue that it is being used as license for sex, abuse, domestic violence, having life time validity.

The term 'Marital Rape' is new. However, the aggressive treatment that woman experiences from her spouse is not unusual; it happens frequently. Just wonder how difficult it would be for a woman. Because one side she has to satisfy his husband's sexual desire irrespective of her consent just to save her married life and on the other hand it's her self-dignity and respect that's least being valued.

It's acceptable and legal to have right of sexual pleasure after marriage, but it can't be done without consent of partner, as anything without consent in eyes of law is illegal, against the rule of law and also against one's dignity and respect.

Marriage, Which We Treat As A Holy Institution Is Getting Exploited. Isn't It?

Marriage is an institution that ties two individuals in a sacred bond of love. It is a legal union between two consenting adults. Marriage builds the purpose for smooth running of this creation. Our society is a varied mixture of numerous religions and castes. In some religions like Christianity and Islam, marriage is a contract wherein two consenting individuals vow to stay for each other in every walk of life. While in other religions like Hinduism, marriage is a sacramental bond between two consenting individuals.

Origin
The term rape originated from the Latin rapere (supine stem rapture), "to snatch, to grab, to carry off". In Roman law, the carrying off of a woman by force, with or without intercourse, constituted "raptus".[i] Rape is forcefully harassing a person to make sexual relations. According to Oxford Learner's Dictionary "Rape is the crime of forcing somebody to have sex when they do not want it or are not able to agree to it."[ii]

In 1900BC, laws for rape were first introduced in Babylon, in the Code of Hammurapi. Both raping a virgin woman at her father's home and raping someone else's wife were regarded as crimes. It was said that the male who commits this heinous crime should be killed. The crime of rape was considered equivalent to the offence of theft.[iii]

Women were considered the property of the men who married them or the property of the father in whose house she resided since childhood. Sexual relations beyond the scope of marriage were, hence, labelled as the crime of adultery. Society could not accept women who were raped. She was the property of her husband and he could use her according to his will. She was considered 'impure' if she was sexually harassed beyond the institution of marriage.

Scenario With Respect To India

With the passage of time a number of social evils or practises such as child marriage, Sati Paratha etc have vanished or criminalised. Having said that some of those social evils are still in existence and continue to distress India. One such social evil is 'Marital Rape'.

Comparing the two concepts of marriage and rape, we can say that marriage cannot give a license to force someone to have sexual relations. Marriage should, in itself mean 'consent'. Marital rape can be defined as forcefully exploiting one's spouse to have sexual relations beyond her consent. The early lawmakers, however, faced difficulties in making a stringent law against 'Marital Rape'.

The ideologies of the early ages suggested that marriage was a contract that gave husbands the 'right to sex'. The women were expected to serve every sexual desire of her husband after marriage. Also, they were supposed to become a commodity that belonged exclusively to their husband.

When we talk about rape it automatically makes us think that something wrong has happened to a girl, mainly without her agreement. Marital rape is no different from it but with a minute change, as the term suggest it is an act where a spouse without the consent of other spouse perform sexual intercourse with his or her partner. If we are calling it rape then how is it different? Why it's not criminalised? Isn't it wrong on the part of married woman and in violation of her right?

During ancient period, marital rape had the legal backing on the ground that a spouse is entitled to have sexual intercourse with his or her spouse, moreover in India marital rape has been considered as a domestic violence. Though everyone along with the Supreme Court supports the rape victim, but remain impasse when it's marital in nature. Only by considering the fact that a woman is married to a man will not give him the right over her body, that too without her consent.

Consent refers to a woman's clear-cut expression of her desire to engage in a particular sexual act through gestures, words, or any other kind of verbal or non-verbal communication. With the caveat that a woman who does not physically object to the penetration act shall not be taken to have consented to the sexual activity only on the basis of that fact.

Laws Regarding Rape In India

In accordance with section 375 of the Indian Penal Code, rape is defined as "sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation, or fraud, or at a time when she is intoxicated or duped, or is of unsound mental health, and in any case, if she is under 18 years of age."

Characteristic Which Is Under Section 375:

• Against her will
• Without her consent.
• With her permission, when her permission has been secured by instilling fear of harm or death in her or any person she is interested in.
• Having her consent and knowing that she is not legally married to him, even if she thinks she is, and that she is giving him her consent because she thinks she is.
• With her consent, when, at the time of providing such consent, she is unable to grasp the nature and consequences of that to which she provides consent due to mental incapacity, intoxication, or the administration by him directly or via another of any stupefying or unwholesome substance.
• While she is under sixteen years old, with or without her consent.

Considering the last characteristics, in women centric legislations, the minor age is till to the age of 18. And it's not settled because if the victim is above the age of 16 it won't be considered as rape whether done consensual or non consensual intercourse. In independent thought case it was argued that the age limit of girl to be recognised as victim of rape is arbitrary and it must be amended and make it to the age of 18. Its our legislature's lethargy that neither any amendments have been made nor any laws regarding it has been introduced.

Any sexual act performed by a male on a woman against her will or consent is considered rape, according to section 375 of the Indian Penal Code of 1860. According to the first exception, a medical operation or intervention is not considered rape. The second exception stipulates that, as long as the wife is older than 18, raping her would not be considered rape.[iv]

Marital rape is not criminalised but if a woman wants to file a complain against her husband, she can file a case under other provisions of IPC such as domestic violence, mistreatment, as well as file divorce. This exception in itself is against the fundamental rights of a married women as it is in contrary to her right to dignity, right to privacy and equality.

Article 21- Right To Life And Live In Human Dignity

Every citizen is guaranteed right to a healthy life under Article 21 and if it gets violated, they can seek for constitutional remedies under article 32 of the Indian constitution.[v] Additionally, there is a well-known landmark case involving rape called "The chairman, Railway Board vs. Mrs. Chandrima Das & Ors on 28 January 2000. In this case, Supreme court ruled that rape constitutes a crime against both the victim and society at large. Rape is a heinous act which disturbs the victim as well as the entire society.[vi]

Right to Privacy

Recently right to privacy was in the air where even the Supreme Court agrees to the encroachment of personal space and privacy. The Supreme Court unanimously declared right to privacy to be a part of Article 21. A woman is entitled to right to privacy where no one is allowed to encroach or invade in her privacy.

With the increase in number of crimes against women, a loophole can be atrocious to them in a man driven society which is inclined to patriarchy.

If talking about rights in India, there is no right above fundamental rights, so if the contention is between a men's patriarchal right of control over his wife and a woman with her fundamental rights of living with dignity, privacy and pre-dominantly equality, the precedence should be given to the woman's Right.

The Hon. Supreme Court in Independent Thought vs Union of India also assessed the relevant legal circumstances and found that exemption 2 under Section 375 of the IPC is arbitrary and in contravention of the values expressed in Articles 14, 15, and 21 of the Indian Constitution. The exemption was accordingly altered to read as follows: "It is not rape when a man engages in sexual activity with his own wife, provided that she is not under the age of 18."[vii]

False Cases Regarding Abuse, Cruelty, Domestic Violence And Sexual Harassment

Every coin has two sides, and the same principle stands true here. In 2017 the Centre had contested the arguments, claiming that making marital rape a crime may cause instability in the institution of marriage and make it simple for wives to harass their husbands.

Data from the NCRB shows that out of 1,67,067 cases, 5,520 were found to be untrue in terms of spouse abuse.[viii] Even though there have only been a few false instances reported, nobody knows if such incidents will become more frequent. As many instances of false rape and domestic violence cases have already been heard and reported recently to us through various means and sources.

To substantiate the claim, in case of Veena vs Naveen in which she had repeatedly filed complaints, each of which turned out to be untrue. Also, several complaints were made in an effort to link her husband and in-laws' family's male members to sexual harassment charges, but in both instances, her account was disbelieved after going through the facts and investigation, allegations made were found to be false and defamatory.[ix]

Also the judgement by Hon'ble Supreme court in the case of Raj Talreja vs. Kavita Talreja, civil appeal no. 10719 of 2013, decided on 24.04.2017, wherein it was determined that the wife had filed false complaint against the husband after she had injured her own person.[x]

Solutions
To deal with false cases of domestic violence, sexual harassment etc in which husband get falsely accused by their wives after making false allegations. Of course there is need of criminalisation of marital rape but still to not make it biased we should have proper laws so that none of the married partner get over ruled by the law.

Proper investigation team dealing with rape cases whether general or marital in nature can be formed to make it efficient working agency. As going through the above false cases it is very clear that to have a gender neutral society there is need to look into the matter not just on the basis of feminism or on ideology that women would be right but on the basis of facts and matters of the case. As every problem comes with a solution, same can be done with proper planning, strategy and enforcement.

Conclusion
As the transient period of male dominated society inching towards termination, both male and women are provided with equal rights in accordance with law. Although men continue to oppress women through social evils like cruelty, dowry deaths, and a new issue called marital rape. But above mentioned cases that turned out false also strikes our mind not just to be biased on a side that men only are liable and guilty in every case and same can't be presumed without going through matter and facts of the case.

Rape is defined under Section 375 of the Indian Penal Code 1860 as any penetration of a man's penis into a woman's mouth, urethra, or vagina without the woman's consent, will, or knowledge. Though the same offence is not considered as rape when committed within the institution of marriage, as mentioned in exception 2 of section 375 IPC. Thus, the exemption 2 to the Indian Constitution's article 14, 15, and 21 has been held to be violative by the Hon'ble Supreme Court in the case of "The Independent Thought Vs Union Of India". Cases of marital rape are being treated as the matter of domestic violence in the eyes of law.

As women are forced to compromise with their privacy and dignity for the sake of satisfying their husband's sexual desire in order to save her marriage. As right to live with dignity and right to privacy comes within the purview of Article 21 so it's violation of the same Article and also domination of one gender on other violates both Article 14 and 15 as well.

As contended from the side of the victim that raping a woman (whether married or not) is not only rape with her body but also means to rape her fundamental rights. On the contrary it was also contended that criminalizing marital rape would be a great step to encourage women for misusing their rights and will be a threat to religious sacrament. Considering the contention of both the side it is necessary to widen the scope of exception 2 of section 375 of IPC.

End-Notes:

1. Wikipedia, available at: https://en.wikipedia.org/wiki/Rape (last visited on Aug 3, 2022).
2. Oxford learner's dictionaries, available at: https://www.oxfordlearnersdictionaries.com/definition/american_english/rape_1 (last visited on Aug 3, 2022)
3. A Brief History Of Rape Law sites.williams.org, available at: https://sites.williams.edu/engl113-f18/flagler/a-brief-history-of-rape-law/ (last visited on Aug 3, 2022)
4. Business Standard, available at: https://sites.williams.edu/engl113-f18/flagler/a-brief-history-of-rape-law/ (last visited Aug 3, 2022)
5. Lawyered, available at: https://www.lawyered.in/legal-disrupt/articles/right-privacy-fundamental-right-india/
6. Railway Board vs. Mrs. Chandrima Das & Ors, AIR 2000 SC 98.
7. Independent thought vs union of India, AIR (2017) 10 SCC 800
8. The News Minute, available at: https://www.thenewsminute.com/article/what-data-false-rape-cases-doesn't-t-tell-us-163631
9. Veena vs Naveen, AIR 2017 CM-5871
10. Raj Talreja vs Kavita Talreja, AIR 2013 (2) LRC 349 (SC)

Award Winning Article Is Written By:

1. Mr.Rishabh Raj, 1st Year Student At B.A.M.U, Manikchand Pahade Law College
2. Mr.Ritik Sinha, 1st Year Student At B.H.U, Faculty Of Law

Authentication No: AU222448289184-12-0822