Marital Rape: the Line between consent and deceit.
Tejashree Anant Salvi
INTRODUCTION
In today's world, marital rape is a major issue. A group of petitions submitted by the RIT Foundation, the All India Democratic Women's Association, and two individuals have been consolidated and are being heard by a Delhi High Court panel. The “criminalization of marital rape” is at the heart of these petitions. Marital rape exists in India de facto but not de jure. While in other countries the legislature or the court has criminalized marital rape, the justice system in India seems to work in an interdisciplinary manner.
PIL to criminalize marital rape
Some believe that Exception 2 of Section 375 is arbitrary and unjust because Marital Rape is no less an offence than murder, culpable homicide, or rape per se, and this causes discrimination between married and unmarried women, which has been challenged in the Delhi High Court through petitions. Among the signatories were the All India Democratic Women's Association, RTI Foundations, Forum to Engage Men, and many others.
Petitioners contended to declare the said Exception as unconstitutional.
On the other side, an NGO-Welfare Men's Trust represented a man who claimed he had been victimized by the alleged misuse of gender laws, claiming that the problem had affected a huge number of men at the hands of women who filed fake rape and domestic violence complaints. The plea also cited National Crime Record Bureau (NCRB) figures, which indicated that 62,000 married men commit suicide each year, which is more than double the number of women who commit suicide, with marital issues being the single most common reason. The PIL requested a clear framework for the registration of instances involving marital rape within set rules and legislation, so that accountability, responsibility, and culpability of the authorities involved could be established. The petition was denied by the High Court, which stated that it is the realm of the legislative, not the court. It is unlucky to see the position of the government and the judicial power on marital rape, which reflects the essence of Indian patriarchal culture.
Reasons behind Marital Rape
One of the most common reasons for marital rape is that many spouses use sexual violence to preserve dominance in a male-dominated relationship. A male technique of sperm competition, which is a result of sexual jealously of a man as a woman's sexual unreceptively may signal to him that she is having consensual intercourse with another, might also be a role in rapping a reluctant pair-bonded partner. Also, abusive males who have a history of alcohol or drug issues
are more likely to sexually assault their wives whether they are drunk or sober. Russell also contends that economic circumstances play a significant role in explaining why women continue to live with rapists. Most of the women are unemployed and rely on their husbands for survival, thus they are powerless to stop such a heinous deed. In the following situations, women are at a higher risk of being raped by their partners: Women who are married to dominant males who regard them as 'property,' women in physically abusive situations, pregnant women, sick or recuperating women, separated or divorced women. Rape, according to most of the literature, is less of a sexual act and more of a power play in male-female relationships. Based on her research of rape victim surveys, Bart finds that rape is a power trip, not a passion trip. Rape, according to Brown miller, is also a power struggle. Rape, she believes, is an act of male animosity toward women; it is an attempt by a man to exert authority over a woman.
Marital rape from a legal standpoint
In today's world, marital rape is a contentious issue. A group of petitions submitted by the RIT Foundation, the All India Democratic Women's Association, and two individuals have been consolidated and are presently being heard by a Delhi High Court panel. These petitions address a single issue: the 'criminalization of marital rape. Exception Section 375 shields husbands from rape allegations brought by their wives. According to the legislation, "sexual intercourse or sexual activities by a man with his own wife, the wife not being under the age of fifteen, is not rape. Beyond the age of 15, the wife has no legal protection except when she is living separately under a judicial separation decree or otherwise, i.e. under any custom or usage, and the husband forcibly has sexual intercourse with her without her consent, in which case the husband faces imprisonment of either description for a term not less than two years but which may extend to seven years under Section 376B of the amended IPC In 2017, the Supreme Court, in its historic decision in the case of Independent Thought v. UOI, raised the age from 15 to 18 in order to bring our legislation in line with POCSO and the Child Marriage Prohibition Act. Consent of a female under the age of 18 is now irrelevant, and sexual intercourse with a girl under the age of eighteen (married or unmarried) would inevitably amount to rape even if she had consented to it. In rape cases, consent is defined as an unequivocal voluntary agreement when the woman conveys her willingness to participate in the specific sexual act by words, gestures, or any other kind of verbal or nonverbal communication. As a result, permission on the side of a woman as a defense to a rape claim necessitates voluntary involvement after fully exercising the choice between resistance and acquiescence. The absence of injuries on the aggressor or the aggressed does not, by itself, settle the question of whether it was a case of consent or no consent, and this circumstance must be weighed against the other evidence before reaching a conclusion. The victim's permission must also be voluntary, and a mere act of helpless surrender in the face of unavoidable coercion when the volitional faculty is overwhelmed by dread cannot be considered consent under Section 375 of the Code. Similarly, if her permission is gained by putting her or anybody she is interested in danger of death or serious harm, such consent is inadmissible. In rape cases, there is a presumption that the woman did not consent, and the onus is on the defense to show otherwise (S.114A Indian Evidence Act) 'Mens rea' is the mental component required to commit a crime, except in strict liability offences. In rape cases, the existence of mens rea is proven solely by proving that the male was aware of the woman's refusal to agree to the conduct. Where he has a reasonable belief that the lady consented, he lacks the mens rea necessary for rape.
CONCLUSION
Rape is rape, whether committed within or outside of marriage, and it must be punished. Simultaneously, our legislators must develop well-defined categories of rape sanctions that separate lack of consent in passive submission from those involving physical assault, compulsion, or harshness. Punishment cannot be measured by a single yardstick. To guarantee that the wicked are punished and the innocent are not, we must redefine marital rape and rethink the associated sentencing and prosecution systems.
REFERENCE
▪ https://timesofindia.indiatimes.com/blogs/legally-speaking/marital-rape-demystifying-consent-within-marriage/
▪ https://www.indiatoday.in/opinion-columns/story/marital-rape-marriage-cannot-mean-irrevocable-implied-consent-1846631-2021-08-29
▪ https://www.legalserviceindia.com/legal/article-3369--marital-rape-power-relations-and-legality-a-case-for-lex-feranda.html