Rishika14 Jun 2019
Is rape justified under the shade of marriage?
Marriage is an institution which carries sanctity worldwide, while in stark contrast, rape is an act which has human beings acting out on the lowest possible level. The difference between the two starts to blur in the case of Marital Rape.
Marital rape has always been a heated issue in the Indian scenario because of the religious diversification and sacrosanctity attached to the institution of marriage. The Indian legal system decriminalises marital rape because of the sanctity held by marriage and the judgements of courts have depicted the fear of the judiciary to enter a domain of private affairs of the society, which has always worked in favor of marital rape. It has often been argued that it should be criminalised as it is prejudiced in favour of women but unfortunately, it isn’t so.
The question that arises at this point of time is; what is the difference between rape and marital rape for the former to be criminalised while the latter isn’t? The difference between both lies in the distinction between the two phases of life. One is committed outside of marriage while the other, within it. In substance, both affect and harm the person to the exact extent and intensity.
Rape is said to be committed when the following are met:
Consented but falling under the exceptions of IPC
If you add being married to the mix, it would constitute marital rape. Where does the difference lie? Surely, one answer to this question is that it doesn’t lie in substance. The difference arises from the rights given to people. Rape is considered to be 'crime in rem' while marital rape is considered to be 'crime in personam.'
The reasons why marital rape is not criminalized could be summed up as follows:
Marriage is considered to be sacrosanct which the legal system often fears entering. It derives its character from the religious laws and rights provided by the Indian constitution to the citizens. The fear arises as a result of cultural faith in choosing to let religions steer and rule life as the prime guideline of societies functioning and criminalizing marital rape is often seen as questioning the religion of the persons involved.
The Indian constitution provides its citizens with the right to life and privacy under Article 21. This has often been used as a defense for protecting marital rape. Right to privacy gives everyone the right to have secrecy in their lives, while right to life provides them with the liberty to live with dignity. The institution of marriage establishes a relationship between people, which allows them the privileges of the private sphere. Everything which happens between them is considered to be happening within this private sphere. Though some acts related to marriage have been criminalized, forceful intimacy is not one of them.
Marriage is considered by courts to have implicit consent to have sex with each other. Where the consent is implicit, rape cannot have beeen committed because ‘being nonconsensual’ is an essential element to constitute rape.
The fallacy in these arguments is that on one side rape laws are being straightened by the Indian legislature whereas juxtaposed lies the marital rape issue which prevails in its entirety.
The dichotomy between the two needs resolving as both are basically the same in essence. Just one additional detail of being married or not does not and cannot change the impact and violence of rape.