The sweetest of all sound is that of the voice of the women we love.
Someone rightly said that “there’s fire in her, if loved correctly, she will
warm your entire home, if abused she will burn it down”.
It is true that some women are lost in the fire and some women are built
from it. We know that abuses toward women are something common in
Indian society. Rape, domestic violence, sexual harassment, forced
marriage, forced prostitution, mistreatment of widows is some of the
abuses practiced by evils, I mean so called human. One of the major
abuse is martial rape which is neglected by our educated Indian society.
If educated Indian society fails to accept it as an abuse then what we
expect from uneducated, unaware, under privileged class of India, I
guess nothing. The society is neglecting this issue.
In Indian society, sex has been created as obligatory in a marriage and
also taboo. Reality is that many people don’t have idea that what is
martial rape. They treat their wife as slave and they feel that they have
right for that. They feel that if she is totally depended on me then I am
the only one to take her entire decisions.
Let me define the word martial rape,
“Martial rape is any unwanted sexual acts by a spouse or ex-spouse,
committed without consent and/or against a person’s will, obtained by
force, intimidation, or when a person is unable to consent. These several
acts include intercourse, anal or oral sex, forced sexual behavior with
other individuals and other several activities that are considered by the
victim as degrading, humiliating, painful and unwanted.”
A marriage certificate means a lots of things but it’s not an excuse for
rape. The number of women sexually assaulted by their husbands is 40
times the number of women attacked by men whom they don’t know.
Yet martial rape is legal. The criminal law (amendment) act 2013, states:
“sexual intercourse or sexual acts by a man with his own wife, the wife
not being under fifteen years of age is not rape”.
Talking about a small country like Malaysia, they don’t currently
consider martial rape illegal; however, a husband who threatens violence
or harms his wife is liable to face five years in prison.
Countries like USA, prior to the 20 th century the concept of martial rape
exemption was followed. This concept basically means that by entering
into a martial contract, a woman has tacitly consented to have sexual
intercourse with her spouse anytime he wants. It dates back to 18 th
century common law, and was articulated by English jurist Matthew hale
as follows: “the husband cannot be guilty of rape…for by their mutual
matrimonial consent and contract, the wife has given up herself in this
kind unto her husband, which she cannot retract’’. In North Carolina, for
example, until 1993 the penal code’s definition of rape noted that a
person could not be convicted of the crime of rape “if the victim is the
person’s legal spouse at the time of the commission of the alleged rape.’’
Nebraska was the first state to abolish martial rape, but the turning point
was the New York case of people Vs. liberta where it was finally
decided that there was no reason for differentiating between martialrape
and non-martial rape. The court noted that “a marriage license should
not be viewed as a license to forcibly rape (the defendant’s) wife with
impunity”. Currently all 50 states criminalize spousal rape, but remnants
of the martial rape exemption are still present in many states. Most states
like California, for example, define spousal rate as a separate offense
than stranger rape.
In England some believed that in case of martial rape the perpetrator
should be punished on a different scale than stranger rape. The reason
for this being that women who were raped by their partners were less
likely to help and therefore needed as much assurance as law could
provide them that they would in fact get justice.
South Korea is one of the recent countries to criminalize martial rape.
earlier in 1970’s the supreme court had upheld the view that there could
not be a martial rape between a husband and wife, but this thought
process has changed over the past four decades.
Islam has its own point of view, the term (martial rape) is not accurate in
the practice of Islam because rape in Islam is defined as forced sexual
intercourse outside of marriage’’. Islam placed responsibility on men to
convince their wives to change their minds voluntarily by setting a
romantic atmosphere and by being affectionate. Islam does not allow the
wife to deny intercourse to the husband. Sexual satisfaction is one of the
rights of the husbands in the Islam, in fact the actual marriage contract is
made in that way. The husband has to mainly provide financially and the
wife has to provide obedience and sex.
The landmark cases regarding this are State of Maharashtra v. Madhukar
Narayan, the judges said that women are entitled to sexual privacy. In
Vishaka v. State of Rajasthan, the right of privacy of women was
extended to the workplace. In some cases, the Supreme Court has said
that even prostitutes have right to privacy. In Emperor v. Shahu Mehrab,
the husband caused death of the child wife by rash and negligent act and
had to undergo bare minimum punishment under 304A of IPC. In
Saritha v. T. Venkata Subbaiah, Andhra Pradesh High Court held that
restitution of conjugal rights thus enforced offends the inviolability of
the body and mind subjected to the decree and offends the integrity of
such a person and invades the martial privacy and domestic intimacies of
a person. In Sree Kumar v. Pearly Karun, the couple were going through
a period of separation. However, they decided to give their marriage a
shot and so the wife came back to the husband’s house for 2 days.
Meanwhile the husband raped the wife. The wife approached the court
but the husband was not held guilty as the wife consented to coming
back to the matrimonial house. In Radhu v. State of Madhya Pradesh,
false charges of rape were brought against the accused for financial
benefit of the woman. Again in Rohit Bansal v State of NCT Delhi, the
woman filed a false case of promise to marriage; ultimately the accused
got bail.
The main question is that whether martialrape should be treated as a
criminal offence or not. Recently a question arisen after union minster
for women and child development Maneka Gandhi repeated the
government stand in a written reply in parliament. She said,’’ The
concept of martial rape as understood internationally cannot be suitably
applied in the Indian context due to various factors like level of
education/illiteracy, poverty, social and custom values, religious beliefs
(and the) mindset of the society to treat the marriage as a sacrament.’’
It is difficult to argue that complaint a martial rape will ruin a marriage
or not. But we need to realize that woman has still continued to be
victimized by man and society. There is need to acknowledge her as a
human being, away from the ancient notion of her being a mere chattel,
and give her respect and the dignity she deserve. The patriarchal power
structures have deemed marriage to be a license to legal unwilling sex.
There is a total negation of the self-worth a woman.
“A mess of beautiful contradictions makes her whole, she wears fire for
skin but a storm lives in her soul.”
