MARRIAGE – A LICENCE TO DO ANYTHING….
After 73 years of Independence
still women are not free to express their views , emotions and fear .
Unfortunately it is the harsh reality of India.
Before walking out of the house, still
a girl and women have to think what and how to wear….whereas men are free to do
whatever they wish….
The idea of marriage institution
is quiet old. Especially for girls as soon as the girl turns 18 -21, the whole
family is in search of a suitable match for her. Whereas in some parts of India
where the family is orthodox the likes and dislikes of the girl are not asked.
Its quiet ok as at certain age
you need someone to have you physically and emotionally their to support you ,to love you ,to care for you.
Concept of Cohabitation is very old since British period where two strangers of
opposite gender live together for emotional ,physical and moral support.
There are so many issues that a
women has to handle and at very right age when she becomes mature she is taught
to adjust with the every circumstances.
The issues of domestic violence and
sexual violence are at height in marital life. More importantly the issues of violence
on women has increased in 20-21st century.
People in several parts of India
or most part of India think that marriage is license to do anything with the
wife specially hitting and abusing.
Marital rape is one of them.
WHAT IS RAPE???
Rape is unlawful sex without the
consent of either a man or a woman.
WHAT IS MARITAL RAPE?????
Marital rape or spouse rape is
having sex without the consent of each other specially the wife. Marital Rape is
a kind of domestic violence and sexual abuse. Although since many years
marriage gives whole and soul right to do anything , specially sexual
intercourse within marriage is a right of the
spouse.
Now the law has been strict
towards the consent of the spouse is now been widely discussed by law as a
crime. It is recognized as Rape by the society. Still many people in rural
area do not consider it as a rape and
ask the daughter to tolerate it at the extent.
It’s the matter of concern ,‘murderer
destroys the whole life of victim ,whereas rapist destroys the inner soul of
the victim’.
HISTORY OF
MARITAL RAPE
Marital rape is termed
illegal. During British era the first concept of sex was taken as Marriage is a
contract to have a sex with wife as a right of husband.
The right of the husband to do anything with the wife was
treated as a Law. The right to do anything with wife. On this grounds the men
takes divorce from wife specially when the wife refuses to have sex with the
husband.
LEGAL ROLE
MARITAL RAPE AS SUCH DOES NOT INCLUDE ANY SEPRATE LAW ON IT,.BUT
SECTION 375 UNDER Indian Penal Code considers force sex in marriages only when
wife is below 15 years of age…thus marital rape is not a criminal offence under
IPC…Marital rape victim have to take source of the Protection Of Women From
Domestic Violence Act 2005, (PWDVA)
Types of marital
rape
The following three kinds of marital rape are identified by
legal scholars as generally prevalent in the society
Battering rape: In battering rape, women experience both physical
and sexual violence in the relationship and they experience this violence in
various ways. Some are battered during the sexual violence, or the rape may
follow a physically violent episode where the husband wants to make up and
coerces his wife to have sex against her will. The majority of marital rape
victims fall under this category.
Force-only rape: In what is called
force only rape, husbands use only the amount of force necessary to
coerce their wives; battering may not be characteristic of these relationships.
The assaults are typically after te woman has refused sexual intercourse.
Obsessive rape: Other women experience what has been called as
obsessive rape; these assaults involve torture or repetitive sexual acts and
are often physically violent.
SATICSTICAL DATA
The National Crime Records Bureau report of 2006 mentions
that about 71% rape cases are unreported. Marital Rape is not an criminal
Offence in India though sexual intercourse with wife aged between 15-18 years
is considered as rape
Law For Marital
Rape
There is no separate law enacted for Marital rape but the
term Rape is included under section 375. Section 375 of the Indian
Penal Code defines rape as "sexual intercourse with a woman against her
will, without her consent”.
CASE STUDY
1.The Delhi High Court , while hearing the petition on making
marital rape an offence , has observed that physical force is not necessary for
rape as man can could bring wife under financial pressure to force her for sex.
“Force is not a pre condition for rape. If man puts his wife
under financial constraint and says he will not give her money for household
and kids expenses , unless she includes in sex…
Later , she filed a
rape case against the husband…, the court said “The court rejected the
argument put forward by the NGO men welfare trust which said it’s the spousal
relationship, use of force or the threat of force are important elements to
constitute rape…
The NGO opposed the plea to make marital rape as an offence.
A bench of Chief Justice Gita Mittal and of A C Hari Shankar also observed that
marriage gives right to both husband and wife to say no to physical relations.
“marriage does not mean a license to have sex without consent.
The court hearing petitions filed by NGO RIT foundation all
democratic association challenging the section 375 of IPC saying that it decimates
against married women.
2. In Sree Kumar vs. Pearly Karun
the Kerala High Court watched that the offense under
Section 376A, IPC won't be pulled in as the spouse is not living independently
from her husband under a declaration of partition or under any custom or use,
regardless of the possibility that she is liable to sex by her better half
without wanting to and without her assent. For this situation, the spouse was
subjected to sex without her will by her husband when she went to live with her
husband for 2 days as a result of settlement of separation procedures which was
going on between the two parties. Subsequently the spouse was held not liable
of raping his wife even though he had done so.
The judiciary appears to have totally consigned to the
fact that rape inside marriage is impractical or that the disgrace of assault
of a lady can be erased by getting her married to the attacker.
CONCLUSION
It is conceded
that changing the law on sexual offences is a formidable and sensitive task,
and more so, in a country like India, where there is a contemporaneous presence
of a varied and differentiated system of personal and religious laws that might
come into conflict with the new amendments in the statutory criminal law.
Further, though, there is need for substantial changes in the law on sexual
offences such as making them gender-neutral and eliminating the inequalities, a
radical overhauling of the structure of sexual offences is not advisable. The
immediate need is criminalization of marital rape under the Indian Penal Code.
But, mere declaration of a conduct as an offence is not enough. Something more
is required to be done for sensitizing the judiciary and the police. There is
also a need to educate the masses about this crime, as the real objective of
criminalizing marital rape can only be achieved if the society acknowledges and
challenges the prevailing myth that rape by one’s spouse is inconsequential.
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