Marital rape in India and impact of COVID-19


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ABSTRACT
Sexual violence is defined as the act of exposing someone to sexual behavior without one’s consent. Majority of the victims are women. There is an ideology that promotes men to have
the right to treat their wives as they wish and the wife must fulfill her husband’s needs. Today with the changes, developments and understanding the concept of marriage and notion of
violence against women. It has been understood that sexual intercourse should be mutual desired by both parties of the married couple otherwise it should be considered as sexual assault/ violence.
The aim of writing this is to review the social and legal aspects of marital rape and statistics in India during the period of COVID- 19.

INTRODUCTION
The term marital rape is used to define the non-consensual sexual acts performed by the victim’s spouse.
Rape is an offence against woman, violating her dignity and self-respect. Marital rape occurs within four walls of a matrimonial home. The woman is treated as an object and used mainly for sexual gratification.
Although, the other forms of rapes could be a one of thing, such is not the case in marital rape as the victim is supposed to live with the offender and go through the same trauma over and over again.
The issue of sexual and domestic violence within the marriage in the form of marital rape further leading to domestic violence have come to growing from the second half of 20th century. Laws are rarely being enforced due to factors such as reluctance of authorities to pursue crime, lack of knowledge, illegalness of such acts and behaviour. Rape by spouse adversely affect the physical as well as psychological health.

MARTIAL RAPE STATUS IN INDIA
In India, a husband raping his wife is considered legal and treated as no offence.
The definition of rape is provided under section 375 of the IPC eliminates the criminalization of marital rape as this exception is read down as follows:
“Sexual intercourse or sexual act by a man with his own wife, the wife not being 18 years, is not rape”. it means that if a husband indulges in sexual intercourse with wife without her consent, will not be considered as rape.

● However, as per the Exception clause of the section 375 at the same time made it
clear that, sexual intercourse by a man with his own wife when she is below the age of 15 years is rape, regardless the fact that, it was done with or without her consent. [1]

● As per the current law, a wife after entering into marital relations is presumed to deliver an implied consent to sexual intercourse with her husband irrespective of her consent.
● India is one of the 36 countries where marital rape is not criminalised [2]. A study
conducted by the UN population fund states that ⅔ rd of the married women between the age of 15 to 49 have been facing domestic violence as they are beaten, forced or raped to provide sex. [3] A large number of petitions and cases have been filed over years but still the offence of marital rape is not criminalized. The issue of marital rape has been long persistent in the country however the pandemic just made it worse.
● Some statistics shows that 12% of the married young women experience unwanted sex frequently and 32% experience it occasionally [4]. About 17.2% urban women reported being beaten at least once by their spouse and 17.5% reported forced sex. However, this percentage has drastically increased during the period of COVID-19.
● Since marital rape is not considered as a crime in India, it gives out a message to the entire women community of India that their consent over sexual activity entirely is in the hands of their husband and because they are married, now, their body becomes their husband’s property and their autonomy is all but ceased.
● Rape laws in India are patriarchal to the extent that they clearly tell the men of the
country that if you want to rape a woman without getting jailed, you should marry her.


VIOLATION OF RIGHTS BY MARITIAL RAPE
● Article 14
Article 14 of Indian constitution ensures that “the state shall not deny to any person equality before law or the equal protection of laws within the territory of India” [5]
Indian criminal law discriminates against female victims who have been raped by their own husbands even though the constitution provides equality to all. The result of which is that a married woman does not have all the rights which she has as an independent legal entity.
Exception 2 of section 375 which essentially exempts actions perpetrated by husbands against their wives from being considered act of “rape” is largely influenced by and derived from this already existing doctrine of merging the women’s identity with that of her husband.
This exception violates the right to equality provided under article 14 of the Indian constitution as it discriminates against married women by denying them equal protection from rape and sexual harassment. This exception increases the
victimisation of married women for no reason while protecting the unmarried women for the same act.

● Article 21
Exception of section 375 of IPC is also a violation of article 21 of Indian
constitution. Article 21 includes rights such as right to health, right to privacy, right to dignity, safe living conditions and safe environment among others.
In recent years, the court has started considering the right to abstain from sexual activities and to be free from unwanted sexual activities as a broader sense of right to life and personal liberty.
In State of Karnataka vs Krishnappa

The supreme court held that sexual violence apart from being a dehumanizing at is a unlawful intrusion of right to privacy and sanctity of a female. In the same judgement, it was held that nonconsensual intercourse amount to physical and sexual violence.[6]
In Justice K.S Puttuswamy (Retd) vs Union of India
The supreme court recognized the right to privacy as a fundamental right of all citizens. The right to privacy includes decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relationships.[7]
Therefore, marital rape, that is, force cohabitation is violation of article 21[8].

STATISTICS OF MARITAL RAPE DURING COVID-19
It’s been over a year since the pandemic of covid 19 has changed the lives of people in so many ways. For some, it has been good, for some it has been bad and for some women living with violent partners has been worse. Lockdown and quarantine are essential to suppress the global spread of COVID-19, but staying at home is not the safest place for all women with violent and abusive partners [9].
As women were locked inside the homes, the law was not in place to protect them.
COVID-19 period was absolutely hard as a point came where the women were just not able to cope with it anymore. The husbands were home, so was the brutality.
● 1477 complaints of domestic violence in regard of marital rape were filed by women between March 25 and May 31, 2020. 587 complaints were filed by National
Commission of Woman (NCW) alone in the first 3 weeks of lockdown period, making it a steep rise from 396 received in the past 25 days between 27 February and 22 March [10].

● January and February recorded 328 cases respectively while the last week of March showed a humongous increase in numbers (250 in 8 days).

● The three-month lockdown this year has recorded more complaints than those received in the last 10 year. Most of the cases were from Uttar Pradesh, Bihar and Haryana.
● 86% of women who filed these complaints never received help. In analysis of
National Family Health Survey (NFHS) 2015-16, data indicates that an estimate of 99.1% of sexual violence cases go unreported and that the average Indian woman, 17 times more likely to face sexual violence from her husband than from others [11]. The cases of abuse have risen by 33% in urban areas and 21% in rural areas during the lockdown.


Analysis suggests that 1 Indian woman is raped by her husband every 16 minutes and every 4 minutes, she experiences cruelty at the hands of her in-laws [12]. 1 in 3 men admit to abuse their wives.
I will refer to a specific case from Madhya Pradesh.
A woman from Madhya Pradesh who during the pandemic, facing sexual violence from her husband. In a video she alleges that her husband would force himself upon her against her will, and upon protest would beat her up and use abusive language in front of her growing children.[13]
It is very disappointing to see that even after so many years and such rise in statistics in just a matter of one-year, marital rape has still not been criminalized in this country.

CONCLUSION
Marital rape is a serious form of crime against women. It is a fact that women who are raped by their husbands are more prone to multiple assaults and often suffer long term physical and emotional problems. Marital rape is even more traumatic for women because she has to stay with her assailant every day.
That rape is a rape and that’s the end of the sentence. No condition whatsoever can deny the perpetrator of its monstrous conduct. Number, age, caste, gender, marital status should not be considered an offence.
Marital rape cannot be let existed as a implied consent of the parties in a marriage, in no way we can imply perpetual consent for a women.
A “no means no ” whether it is said by wife, daughter or somebody else. As the consequences of marital rape are really high, there is clearly an urgent need for criminalization of the offence of marital rape.

Tele – counseling and video – counseling mental health service may help to the victim’s mental health. The government, non-governmental organization (NGOs), community-based organization (BBOs), voluntary organizations should use various media and platforms to raise awareness about marital rape.
Marital rape is still being ignored or considered normal in some societies, which can discourage the victim to report the assault. Victims usually do not report the incident because of their shame or fear of their spouse. In order to prevent such cases, the awareness of the victims should be raised so that they understand that they are not guilty and marital sexual
abuse is a crime. So, the protection of the victims and taking action against the assailants is important in terms of serving as an example.

Written by
Sumit Nirvan (Author)
Tripti Shakya (Co-author)


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