Is marriage a free pass to have sex

We all are aware that women in our country are truly not yet free and independent, after being given all the rights and they prolong to live in darkness and apprehension. It is indeed a sombre reality of India. It has been taught to every woman in India for ages, that marriage is a sacred threshold, that after crossing it, she is given a whole new identity. In a country that has given landmark judgment in the matters of triple talaakh and decriminalising adultery, it is a disgrace to say that criminalising marital rape would de-stabilise the institution of marriage.

As observed by Justice Arjit Pasayat : "While a murder destroys the physical frame of a victim, a rapist degrades and defiles the soul of a helpless woman". Section 375 of the Indian penal code, explicitly allows a man to rape his adult wife. It has been found that India was one of the only ten out of 82 jurisdictions surveyed that still legalises rapes within marriage and protected the rapist husband from prosecution. The definition of rape codified in section 375 of the Indian Penal Code, all forms of sexual assaults involving non-consensual intercourse with a woman. Exception 2- Section 375 exempts unwilling sexual intercourse between a husband and his adult wife, from section 375 definition of rape.

Marriage does not imply that the woman is perpetually consenting for physical relation with her husband. A bench of justice, Geeta Mittal and C. Harishankar said that in a relationship like marriage, both man and woman have a right to say "no" to a physical relationship. It is incorrect to say that physical force is necessary for rape. It is not essential to look for injuries in rape. If a man puts his wife under financial constraints and declares he will not provide her money for household and kid's expenses unless she
indulges in sex with him and she has to do it under a threat without her consent, can this be filed as a rape case against the husband?

The primary aim of the amendment of 2013 was to formulate much-needed changes to the definition of rape and to improve women's access to the legal system. The lawmakers and the government, despite the changes in the law, have taken no steps regarding the framing of law for marital rape. This not only violates article 14,15 and 21, of the constitution but also is the most necessary action against the dignity of a woman.

It is time that Indian jurisprudence comprehends the inhumane nature of this provision and strikes it down. Like many other things, this feature of the historical legacy that the Indian legal system still adheres to. The Indian Penal Code was drafted during colonial
rule and hence it followed the pattern of the English law which considered a wife to be private property and chattel of the husband.

The Gujarat high court in its recent judgement on Nimesh Bhai Bharathbhai Desai v. the State of Gujarat observed that husbands need to be reminded that marriage is not a licence to forcibly rape their wives.

"A husband does not own his wife's body by the reason of marriage. By marrying, she does not divest herself of the human rights to an exclusive autonomy over her body and thus, she can lawfully opt to give or withhold her consent to marital coitus. Marital rape is in existence in India, a disgraceful offence that has scarred the trust and confidence in the institution of marriage. A large population of women has faced the brunt of the non-criminalization of the practice."

It is not fair to the victims of marital rape as the accused of the offence is merely charged under the offence of outraging the modesty of a woman in which case the punishment is much lower.

The advocates of marital rape say that criminalising such act would deface the institution of marriage and also would be the reason for many false charges and cases.

It is about time that we consider modifying the laws relating to women as there is still an enormous gap between the equality of opportunity and equality of justice. It is the moral duty of this society to educate the man that marriage is a holy union and even the wife has equal rights and freedoms. Every person is entitled to defence but only the entitled gets the defence in this country.

By: Varnita Ojha