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🌿| A Non Criminalized Crime|🌿

♠️Marital Rape♠️
Written by- thelatentwriter

Ever read IPC Section 375?

Section 375 of the Indian Penal Code describes RAPE and situations under which sexual intercourse is considered rape. The section covers the situation deeply, giving room to various accusations. The amendments made in Sakshi vs State case included almost all possible scenarios. Including is section 376, 376A and others. It covers all the possible cases like with consent, without consent, age, the physical mental situation or so. Section 375 consists of six categories explaining the situation. But the issue comes in the exception of the sixth part.

The sixth clause says-
With or without her consent, when she is under sixteen years of age.
Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape

So what it means is, our country doesn't criminalise marital rape.

Now before going further let me just inform you about this, section 376 B says IT IS a crime to force a wife for sex but after their separation.

Again, let's go back to what India see as rape -
Against her will.
Without her consent.

But in the same situation where she's married and the intercourse is without her consent then it's not seen as rape. Why? Does that mean words like consent and will are not valid on her after marriage? Or marriage is a license for non-consensual rape?

The basic question here is, why India does not criminalise marital rape?

Here I'll try to bring light on two clear scenarios, by people and by law.
BY PEOPLE
-Indian society does not see or is ready to believe that rape can happen after marriage as according to the mindset when she married the guy, she signed up for sexual intercourse and thus her willingness is not important.
-A wife must satisfy the husband thus if he's taking it, then it's not a crime.
BY-LAW
-When the petition was filed by various NGOs, women organisations for amendment, the state presented the argument that it will become an easy tool to harass husbands.
-It will destroy the sanctity of marriage.

But are these really valid? Should marriage be seen as a permit? Just because our culture and tradition see sex as right only when it is after marriage, does that mean every time it is right?

Second, that state argued as the false allegation could be the case in a lot of different scenarios. Did that stop us from making a law for that? Just because we have the fear that it could be allegedly used, are we going to ignore the times it is valid and require action? I agree that woman could cry out false rape but what about those who need this law?

When it comes to a need for another law there comes arguments like, we have made 498A for that reason. But section 498A is for punishment against domestic violence and harassment, forced to suicide and so, which are, don't get me wrong, are crime but not as heinous as rape. When the case is something big, why should she complain about something small? If it's pneumonia then why should we go to a physiotherapist?

When it comes to suspicions about the false allegation, why not strengthen our Evidence Law instead of ignoring the issue as a whole? If people are worried that how the man will prove himself guilty then why not make changes to help him in such scenarios instead. There are flaws in the evidence law, one might even call it biased. If I quote the exact words, it goes like this- Once the victim alleges the absence of consent, then the onus is on the accused and he must dispel the statutory presumption raised against him. No further burden lies upon the victim to establish the absence of consent. In simple words, if the wife accuses the crime it will fall entirely on the husband to give evidence otherwise or he's guilty. I'd say why not see it that way, that if the husband needs prove then so do the wife. We live in a country where most of the times rapist don't get punishment due to lack of evidence then we people can't say it is a husband who'll suffer more every time after the coming of this law.

There are pros and cons in every situation. Risks in every action. But do we stop living?

As of the so-called "sanctity" of marriage, then wasn't it already destroyed the time one forced itself on the other? Marriage is a holy argument of equal participation of two beings. Then how is that still intact after abusing the right of others. Nowhere it is written that marriage is a synonym of "consent for life"

In such cases, one solution is gender-neutral laws. Rape against both men and women is valid. First, consent can't be IMPLIED. That's how people end up committing felonies, by misreading "implied" consent when there was none.

Consent should be active, explicit and enthusiastic and if a simple concept like this is difficult for society to understand then it is time to revisit schools.

Love and hugs
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April 4, 2021 (Sunday)