Revisiting the Marital Rape exception: a constitutional and comparative analysis
Abstract
This
short article describes about exception 2 of sec 375 of Indian penal code,1860
that is marital rape. It is an act where the husband commits sexual intercourse
with his own wife against her will and he is not held liable. This provision is
considered as a colonial and outdated thought which demands a strong change in
our social and legal jurisprudence. The act is committed within those four
walls, and the perpetrator is her own husband, yet he is never held liable as
it is not a crime. A rape is a rape, and a crime is a crime irrespective of the
person committing it. this provision is surrounded by moral ethos and is
chained to obsolete thoughts. This article relies on statistics showing the
state of married women and relies on secondary sources evaluating the plight of
the battered gender. The recent developments surrounding the topic and evidence
signifying that Indian courts are no less and they can be the harbinger of a
developed society. Where we are marching towards being a superpower and considered
as viswa guru we cannot hide from the fact that there are 68 % of women in our
country who are being sexually abused in their marriage. They have laws, they
have statutes, but they don’t have voice because somewhere they feel crippled
and helpless. The laws are not strong enough to give them a chance to come out
and remove that fake mask from their own perpetrators. Neglecting the cries of
such harassed women would not only make them question our holy bible that is
the constitution but also can shake their trust, their belief which they have
bestowed on those 3 powers that is legislature, executive and judiciary. India being the land of temples and culture
where women are worshipped as goddesses, it becomes difficult and cumbersome to
decide the fate of such an entity who is regarded as equivalent to God. As the
god can do no wrong and his actions can never be questioned, females once
entering a holy union are considered to respect that union with utmost faith.My
article questions the very fundamentals of this society where one section of
society is being ignored where the problems of other section of the society is
being heard, and the basis of the distinction is not gender, race, caste or
creed but marital status.
According to Hindu Dharmasastra
marriage is a sacrament, a holy union-a permanent and indissoluble
union-between a man and a woman for the performance of religious duties. The
existence of a woman in a man’s life is pivotal and serves an important purpose
except the sexual gratification. During the performance of a yagna, it was very
important for the wife to be seated with the husband to uphold dharma. However,
as the world progressed these ideologies took a backseat and women were
considered no less than chattels. This concept developed when some of the
renowned Hindu philosophers like Manu propounded that a woman is the caretaker
of the household, of her kids and the elderly. She is prohibited from going
outside the house. No doubt, in his famous book of Manu smriti he has greatly
praised of women in a household along with the concept of mutual fidelity and
that a woman brings sparkle in the family. But nowhere she has been given the
freedom to make her own boundaries. In fact, there has been certain impositions
that her desertion from her husband won’t be considered as any freedom to her.
She is to be compelled to stay with him. A clear catalogue has been framed for
women in which they have been given instructions on how to behave and why not
to misbehave.
It is quite normal to think that
why all of this is being discussed now, when we are already in the 21st
century. However, it is imperative to understand the root of the disease to
eradicate it from its inception. A disease as it is contaminating the ethos of
our society on which we once used to believe. Marital rape is one of such
disease.
