MARRIAGE- THE LICENSE TO RAPE
"When a woman is raped by a stranger, she has to live with a frightening memory. When she is raped by her husband, she has to live with the rapist".
"Rape" is defined as “the crime, typically committed by a man, of forcing another person to have sexual intercourse or any other form of sexual penetration with the offender against their will”. However, this definition does not hold true if the convict is the husband and the wife, a victim. In India, having forced coitus with your wife is natural and it is taught to every woman in this country that serving her husband is the noblest and sole purpose of her life. Sir, I ask you, have you married a girl or bought a slave who is bound to serve you for her entire life. And even if you have then shouldn’t you pay some price for buying her. Instead, ironically, the demand of dowry is from your side only. Strange, isn’t it? In our mother land, only a marriage certificate is your license to rape and the most amazing thing about this certificate is it has no issues of getting “challaned” or confiscated even if you commit any crime. This sole certificate helps a man to fulfill all his needs and wishes without the consent of his so-called better half. Our Government strongly feels that in a country like India marriage is a sacred bond and serving husbands is the sole duty of a wife, so marital rape cannot be criminalized. I ask what is the difference? Having an intercourse forcibly against one’s consent if accounts to be called as rape then do the wife has no choice in her life? Is a wife a slave that her consent does not matter?
The justification offered our Honorable minister – much as the justifications offered by Mukesh Singh, one of the convicts in Nirbhaya rape case – vindicates my view that in our society, rape is acceptable. There is certainly a distinction made with regard to circumstances, but the collective conscience of our nation validates rapes.
If we travel back in time then mostly every culture around the globe ruled out the possibility of marital rape. This was illustrated most vividly by Sir Matthew Hale, in his 1736 legal treatise Historia Placitorum Coronæ or History of the Pleas of the Crown, where he wrote that such a rape could not be recognized since the wife "hath given up herself in this kind unto her husband, which she cannot retract." The legal history of marital rape in the United States is a long and complex one. In the law books it was clearly defined that rape is forceful sexual intercourse of a man with a female, but not his wife. Thus marital rape wasn’t considered to be a crime and even a possibility. The 1962 Model Penal Code stated that "A male who has sexual intercourse with a female not his wife is guilty of rape.
Rape by a spouse ,partner or ex-partner is more often considered as a physical violence. While rape by a stranger is a onetime event, marital rape occurs repetitively and is highly traumatic for the victim to go through such circumstances day in and day out. There is research showing that marital rape can be more emotionally and physically damaging than rape by a stranger. Marital rape may occur as part of an abusive relationship. Trauma from the rape adds to the effect of other abusive acts or abusive and demeaning talk. Unlike in other forms of rape, where the victim can remove themselves from the company of the rapist and never interact with them again, in the case of marital rape the victim often has no choice but to continue living with their spouse: in many parts of the world divorce is very difficult to obtain and is also highly stigmatized.
In the historical context, Christianity holds the belief that a marriage is a sacred institution where a husband had control over his wife’s life, her sexuality and other needs. The Bible at 1 Corinthians 7:3-5 states that
"The wife does not have authority over her own body, but the husband does. And likewise the husband does not have authority over his own body, but the wife does. Do not deprive one another except with consent for a time, that you may give yourselves to fasting and prayer; and come together again so that Satan does not tempt you because of your lack of self-control."
Under customary laws in certain parts of Africa, forced sex is not prohibited, except under some specific circumstances like pregnancy, menstruation, death of a loved one where a wife can say no to her husband for sex.
But it was not long before the injustice of such a custom was understood by people. From the beginnings of the 19th century women's movement, activists challenged the presumed right of men to engage in forced or coerced sex with their wives. British liberal feminists, John Stuart Mill and Harriet Taylor attacked marital rape as a gross double standard in law. They refused to draw distinction between rape outside or within marriage. "And that is rape, where a man forces himself sexually upon a woman whether he is licensed by the marriage law to do it or not."
Countries which were early to criminalize marital rape include the Soviet Union (1922/1960), Poland (1932), Czechoslovakia (1950), some other members of the Communist Bloc, Sweden (1965) and Norway (1971) Slovenia, then a republic within federal Yugoslavia, criminalized marital rape in 1977. The Israeli Supreme Court affirmed that marital rape is a crime in a 1980 decision, citing law based on the Talmud (at least 6th century). Criminalization in Australia began with the state of New South Wales in 1981, followed by all other states from 1985 to 1992. Several formerly British-ruled countries followed suit: Canada (1983), New Zealand (1985), and Ireland (1990). Till date 101 countries have criminalized spousal rape in which India Does Not Fall Under as here Marital rape is still an impossibility. It can be well understood by the” sath vachan” that are taken during a Hindu marriage that loudly claims the wife as a slave to her husband fulfilling all his desires. As for the victim, in case here the wife, has many complex issues that stops her from complaining or talking about her abusive relationship. The social stigma is so intense that she neglects this crime in order to maintain her family’s false reputation.
In a country rife with misconceptions of rape, deeply ingrained cultural and religious stereotypes, and changing social values, globalization has to fast alter the letter of law.
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