India has become progressive about many things in recent years. However, the issue of marital rape still faces opposition and stigma. Indian society today continues to believe that marriage is a sacred institution. This significance is well placed. Although, the things that follow put significant doubt in our minds about how we perceive marriage. The high pedestal given to marriage has resulted in immense pressure on women. Society forces them to remain bound within the confines of marriage. They must do this even if they suffer sexual cruelty or other forms of brutality.
The National Family Health Survey 2005-06 sheds more light on this. It said that almost one in ten women stated that they were forced to have sexual intercourse with their husband without their consent. In India, most people do not believe in the concept of marital rape. The Hindu Marriage Act 1955 focuses a lot on sexual relations between the parties. Other personal laws suffer from the same issue. The rampant patriarchy in the country worsens the issue. This has led to severe apathy and ignorance of marital rape as a concept itself.
The origins of this thought-process about marital rape in our society come from an idea. This idea was that after the marriage, the woman gives the man irrevocable consent. It is supposed that after marriage, there is no need for consent for sexual intercourse. Nevertheless, over time, Indian thought and society have gone through an evolution. Now, some do give acknowledgement to marital rape. Judges have become conscious about the issue of marital rape. However, do the marital laws of our country support the notion of marital rape?
A simple perusal of the personal laws of the country will tell us the answer. Marital rape is not recognized as a ground for divorce in India. There is no mention of the term ‘marital rape’ in any of the personal laws in India. This is including the Hindu Marriage Act, 1955. There have been constant protests by women-rights activists. Despite this, the legislature does not seem interested in amending the law. The Courts have also refused to provide guidelines to the legislature.
The legislature and the courts are closing their doors. Women are forced to use existing sections under the HMA to get divorced in cases of marital rape. It is essential to notice that all personal laws of India recognize cruelty as a ground for divorce. The case of Shobha Rani vs Madhukar Reddi is one of the many cases that defined cruelty. The Court has given cruelty a broad definition. It encompasses almost anything. Hence, many contest that marital rape does amount to cruelty. The argument pertains to the fact that ‘refusal to engage in sexual intercourse’ falls within cruelty.
Specifically, under ‘mental cruelty’. So, forced sexual intercourse by the husband on the wife should also amount to cruelty. The recent cases that have come in court also support this. They have stated that forcible sexual intercourse amounts to cruelty. It is hence a ground for divorce. However, there is no specific mention of ‘sexual violence’ or ‘marital rape’ as a ground for divorce. This is leading to a rather complicated position in law. There are many instances where judges have refused to grant a divorce. They state that marital rape is not included in the Act.
Marriage entails a special relationship between two persons. It is governed by personal law. In such cases, it is of immense importance to have a corresponding civil remedy for something as sensitive as marital rape. The upbringing of the male segment of the society, in a way, gives us the justification for the existing laws. We see this in many areas, especially in the rural ones.
Parents teach male children about their dominance over women from childhood. Therefore, this thought process needs to be changed. The most important thing that needs to be done is to amend the law. The justification of this ‘societal thought process’ needs to go. Hence, the abolition of Section 377 of the IPC proves an important thing. Courts hold individual rights at a higher pedestal than societal norms. It is time for the judiciary and legislature to wake up. But, they must realise that there is a need to protect the millions of victims of marital rape.
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