In India, marriages are like holy practice, and for the society, the entire school of marriages and bonds is like an irreversible commitment that a woman gives to her spouse.
But the very same society is ashamed to talk and bring to the front the unacceptable and atrocious side the woman may have to face of the so called institution of marriage. Recently a petition was filed by a non-governmental organisation challenging the clause in the Indian Penal Code that essentially prevents a man from being prosecuted for raping his wife if she is 15 years of age or older.
Any kind of physical relation forced on a woman of any age, married or unmarried, adolescent or an adult is a crime. But the honourable Supre Court defies to agree on this stating that if the girl is above the age of 15 and is marries that sexual intercourse with her will not be considered as a rape. The Supreme Court defending and protecting the institution of marriage last week said that there is nothing called marital rape and no amendments will be made in the constitution regarding this.
According to the Indian Constitution, Section 375 of the Indian Penal Code, under which the crime of rape is defined contains an exception in the clause stating that Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.
This means that a case of sexual assault will only be valid and registered if the tragedy has happened with an unmarried girl or if the girl is married but below the age of 15. Defining rape on the basis of marriage and age is this what the Indian Constitutions and the organisations defending the institution of marriage calls justice? Do the women do not have any right over her body and does she do have the right to seek punishment for the Lucifer who forcefully used her body?
Indian Prime Minister Narendra Modi, on the occasion of the 71st Independence Day of India from the ramparts of the red fort in his speech, spoke about the building of new India by 2022 and promoting the advancement of women was key to his vision. But is the advancement of the women really being promoted?
While hearing the petition to criminalise marital rape, last week the Delhi High court argued that India should not blindly follow the western countries and demand to make marital rape a crime.
Significantly, India borrowed this exemption from early British common law when women were considered as properties owned by their fathers and then their husbands who lacked the ability to make decisions for themselves. So a man forcing himself on his wife was just him making the right use of his property and it was not crime or illegal in any way. Husbands have been historically given the right to exercise physical punishment to control their wives, according to a Victorian law interestingly also found in Manusmriti, but does that mean he has the right to sexually abuse his wife without her consent. The defence given by the Delhi High Court of blindly not following the Western Culture was judgemental on its own platform as the exception clause in Section 375 is itself a relic of the British Empire, based on the 17th-century English common law notion. And rectifying the law in 1991 the United Kingdome recognised rape within marriage as a crime.
However, Indian Constitution seems to be adamant on not criminalising marital rape. According to the National Family Health Survey-4 (2015-2016), an authoritative nationwide survey, 29% of women between 15 and 49 years of age said they had faced physical or sexual violence by their husband.
According to the affidavit submitted in the court, the Central government feels that it is more important to safeguard the factors like literacy, lack of financial empowerment among women, the mindset of the society, poverty rather than thinking about declaring the marital rape as a crime.
In 2013 when the government finally decided to make amendments in the 150 year old laws regarding rape after the brutal gang-rape and murder of a young woman on a bus in Delhi, even at that time, the clause of marital rape was exckuded from the discussion.
The matter is once again raised in the courts demanding justice for women, and as long as the women are denied their basic right of freedom and protection, no new India can be built by 2022 or even after that. It is high time that the Modi government looks to address the real-life problem, rather than trying to get votes on appeasement and saffron agendas.