Marital Rape is still not punishable in India!!! Why?

 Out of the 195 recognized countries of the world, 159 has criminalized marital rape legally. But there are still 36 countries that have to do it for the sake of the women in such a relationship. But they have not yet done it and India is one of them. The reason is deep-rooted in its culture. 

What is marital rape? 

Rape is defined under section 375 of the Indian Penal Code as non-consensual sexual intercourse with a woman. When it is inflicted on a wife by her husband it is marital rape. This is also called spousal rape. The lack of consent is an important element of it. Physical violence does not define it. It is a form of domestic violence and sexual abuse. Though sexual intercourse was considered as the right of spouses, doing it without consent is considered marital rape. Though many countries worldwide have brought it under criminal law, it is still tolerated in India. 

Marital rape and world countries-Red-not punishable, green-punishable, yellow, yes and a no, White-Unclear [Source: Wikipedia]

Marital law is a chronic form of abuse and a significant percentage of women bear it in their lifetime. But there are no actual figures on its true existence. Because it is underreported. The general public and especially the women are unaware that it is illegal. Discussing sex is also considered a taboo in many countries. And also many authorities including the legal departments do not want to pursue it as a crime. But the figures are as high as 47% as reported from Tajikistan and 35.6% in Turkey. 

Why India has not considered it a crime yet? 

But the Indian Penal Code puts the exception of marital rape in it. It provides safety to the husband from any penal consequences even if he has done rape on his wife who is above 15 years of age!!! It has failed to protect females who genuinely are facing this problem in their marriage day in and day out. Marital rape is not put under the act of criminalization. Why? 

Indian stats as regards marital rape [Source: The Print]

The court in the UK convicted a husband for such an act and said that rape is a rape immaterial of the relationship of the parties concerned. It is an act that does not consider the relationship between the parties. It outrages the modesty of a female even if she is the person's wife and hence it is to be punished. Many petitions have been filed in court to make marital rape in India punishable and a criminal offense. But the pleas have fallen on deaf ears. In 2015 on one case, the court said that they cannot change the law for one woman!!! In another case, the court said that by criminalizing marital rape, it would lead to a collapse of the social and family systems! The system continues to view marriage as a sacred and sacrosanct binding and turns a blind eye to anything that goes on in this relationship. It is due to the difference in thinking about male and female sexuality and the cultural expectations that a wife is also a subordinate and "property" of the husband. Even Nepal has a law that criminalizes marital rape. Other South Asian countries do not safeguard its married women and this includes India. 

What should be done? 

Indian laws seem to be progressing for the protection of people. There have been some laws made for the benefit of women. But why marital rape has remained an exception to date remains unknown. 

Sexual violence is rampant in Indian society. It varies in gravity from the subtle non-physical ones to the most severe ones and rapes and deaths. These also exist in families and also in relationships. It is also often seen in married couples where the women are at the receiving side. And rape is a violation of the autonomy of a female and can have a deep and longterm impact on her physically as well as mentally and emotionally. 

Rape is a rape irrespective of the relations between the parties [Source: South Asian Journal]

When it is clear that marital rapes are existing in a society, the court needs to change laws accordingly and it does not matter whether it is for the safeguard of one woman or the whole lot. Numbers are not important but the protection of the womenfolk matters. Besides, it is important to also look to change the collective conscience of the nation. The judiciary can definitely assist if it has the will to do so. 

The Verma Committee Report had also made a recommendation to remove this exemption clause of marital rape from the definition of rape. The report also said that marriage is not an irrevocable consent to sexual intercourse. Besides this, the UN Committee on Elimination of Discrimination Against Women also put forth its recommendation to the Indian Government to formulate protective laws for married women there. But this advice was not heeded. 

But this exception is a violation of the fundamental right of a woman as regards equality, dignity, and privacy of women. While this area remains non-protective for women, they can file a complaint of sexual assault against their husband under section 498A. They can also avail of the Protection of Women from Domestic Violence Act, 2005. This includes forced sexual activity against their will even from their spouses.