Controversies in law have also been a good place to start a minimal topic , when it is easier to abstract a sensitive view into an academic argument and prepare the ground for more authentic discussions to take the roots. The preconceived notion that arises due to the constitutional validity of exception (ii) of section 375 of IPC (marital rape), lays out an important aspect in the cases .
What it does is; it proposes that it is not a wrong at all and therefore there is no cruelty either. Although, marital rape has been accepted as a ground for divorce, it has been recognized under cruelty.
This article argues that irrespective of the constitutionality of the said section, there is a need for marital rape to be an exclusive ground for divorce.
Introduction :-
The umbrella term of rape underneath section 375 of the Indian Penal Code does not differ much from the concept of rape in couch or marital rape. The sole contrast betwixt this and rape is that in this case the victim is the wife and the attacker is the husband. If the woman consents to the marriage, it is explicitly assumed that she has given her husband tacit consent to engage in sexual activity whenever and however he pleases; The exemption ii provided in Section 375 on the IPC, that expressly decriminalises and regulates marital rape, reinforces this assertion. Marital rape was defined in the 8th edition of Black’s Law Dictionary as “a husband’s sexual intercourse with his wife by force regardless of her consent.” Therefore, marital rape necessitate engaging with the intercourse wih the wife without her choice while utilising her body as a physical being of the husband’s property. It arises when the husband feels entitled to the wife’s body. Because marital rape is rarely regarded as rape, it makes it difficult for women to get a divorce or pursue alternative solutions.
The primary causes of divorce tend to stay similar, no matter how a variety family law acts and systems function. In this article, the case is made for adding marital rape as a sole basis for divorce. By assessing it both through and beyond the lens of cruelty, it determines the question of whether marital rape fits the frame or should be regarded as a separate cause for the divorce itself. As a result, the piece is divided into the sections that follow::
First, it addresses the ingrained and antiquated belief that having sexual interactions is the husband’s responsibility and his spouse’s right, irrespective of whether the male picks and demands it. By comparing it to contemporary culture and legislation, it is hoped to examine the origins of this school of thinking and call into question whether it is logical. The second part of the essay looks at the legal discrepancy caused by the legislation on spousal rape’s stale status and considers how it impacts family law. Instead of viewing marital rape remedy as cruelty, it seeks to give the required explanation for why it should be seen as compelling reasons for divorce in and of itself. Finally, this essay addresses several widespread misconceptions and problems that must be clarified in order to understand the points stated in this essay on the concept of marriage and refraining from appearing violative.
Tracing History
Earlier, the “doctrine of coverture,” a long-standing idea widely accepted in England, proposed that a man and a woman become one person after marriage. So, it is justified that during the marriage, the woman’s very existence or right to exist is suspended, or at the very least, it is combined with the husband’s. As a result, a woman could not act against her husband’s intentions, such as making a purchase or signing a contract. In addition, the wife owed her husband a “consortium” of legal obligations, including sexual relations, in exchange for support and protection
While the Penal provision were being drafted in British India, the definition of rape included an exception for marital rape; because of concepts like these and the nontheless-present patriarchal views in the indian socicety. The claim that wives instinctively consent to their husbands’ sexual demands may have had some validity when husbands made all the decisions. However, legislation and case laws now reflect how much society has changed since then. In Joseph Shine v. Union of India, the decriminalisation of adultery included a comparison. The Court had ruled that women have their own physical autonomy, which is protected by Fundamental Rights, and that even marital relationships are subject to constitutional scrutiny..
From the Constitutional remedies, Fundamental Rights, and others provision given in any other provision , it can be established that citizens, irrespective of their gender, have the right to safeguard their autonomy. The J S Verma committee castigate exception (2) of 375 IPC and suggested eliminating the provision , observing that marital relationships should not be used as an excuse for leniency in rape. Marriage between the victim and the defendant cannot be used as an excuse for rape. Therefore, to say that the husband has the right to rape his wife would be as wrong as saying that the wife has the duty of forbearance and to have sexual intercourse with the husband. Criminal law indeed provides other alternatives, if not marital rape, to bring order to this chaos, which is, as will be discussed below, not enough. In family law, these provisions are not explicit and attempt to be covered under cruelty to get a divorce or a relief.
This section will look into how marital rape may be established a reason for divorce, regardless of whether it is an exception in the IPC, after establishing its genesis and peculiar existence in the legal books considering the shift in society. It goes on to cover the grounds for divorce under and outside of cruelty in more detail as well as the current legal framework for marital rape. depth.
A case for Marital Rape as a sepreate Ground for divorce
It is evident that marital rape meets the requirements for harshness and is being identified as an instance of domestic violence, that is a foundation for divorce, thus it could have been taken into consideration. But if it were done, it would be against exception (ii) of section 375 of the IPC, and (unless specifically stated differently) it would openly call into question the legitimacy of the exception.
This article argues that regardless of whether marital rape is a crime or not, family law must recognise it as a distinct reason for divorce. The issue at hand is not the criminalization of the exemption for marital rape in the IPC. A Kerala High Court decision from 2021 had recognised marital rape as a reason for divorce, but only where it was seen as falling within the category of cruelty.
This piece points to why there is a paramount need for marital rape as a separate ground for divorce.
The exemption under Section 375 of the IPC highlights several contradictions in family law. For instance, Section 10(2) of the Divorce Act stipulates that a marriage may be dissolved if the husband has been found guilty of rape, sodomy, or bestiality after the marriage has been solemnised. If not for the aforementioned exemption, this provision might easily be implemented in the event that the husband was found guilty of raping his wife. Another irony that fades is that while refusing to have a child from the female is a reason for divorce, forced pregnancy (rape) is not.
The examples demonstrate that, despite women’s so-called “bodily autonomy” and Fundamental Rights, refusing their spouses sex would be cruel and constitute grounds for divorce; doing the converse, however, would not constitute rape or grounds for such a proceeding. These contradictions demonstrate the necessity of adding marital rape to the list of grounds for divorce. Fortunately, some decisions have determined that indulgent and prodigal behaviour shall not be deemed a normal part of marital life and that a spouse’s constant desire for sex would also constitute cruelty. Nothing, however, prevents or obligates the Court from making a decision that follows Justice Hale’s line of reasoning and excludes cruelty entirely.
According to this article, there are two ways that a case of marital rape might be handled as a basis for divorce. As is the situation at the moment, the wife first argues that because the terrible deed occurred, it must be deemed cruelty, and the courts then continue with their research and evidence to decide whether or not the divorce should be granted. It is assumed that since it is not rape in this instance as defined by the IPC, it cannot be a basis for divorce. It is thought that doing so is the wife’s obligation and the husband’s right, not cruelty.
If the Court opts to reject this presumption, the only initial case that may be presented is one of cruelty. It wouldn’t count as cruelty or a reason for divorce if it didn’t. The Court then goes back to the initial phase and considers the facts and supporting evidence to decide if the behaviour constitutes cruelty and, thus, constitutes grounds for divorce. The common belief that marital rape would be difficult to prove does not hold rigorously true since it would be necessary to prove that the rape happened in both situations, marital rape and cruelty. If the idea is that it can be abused, then the foundation of cruelty may also be abused when looked at from the angle of marital rape.
To prevent the ‘presumption’ from the Courts from being exploited to make it an issue at all, it is advocated that marital rape be considered as a separate reason for divorce in and of itself. The fact that it is not another cause adds to the measures a court takes, especially given the possibly harmful impression that coerced intercourse was not necessarily wrong in the first place. If marital rape was another foundation and a case is found to fall under the category of cruelty, the analytical procedure that follows may be handled by ignoring this step
Institution Of Marriage and Marital Rape
The contention is that if a law is made on ground for divorce, then it would push away the institution and sanctity of marriage. Former Indian Chief Justice Dipak Misra stated, “In my opinion, marital rape should not be considered a crime in India since it will promote anarchy in families, and our society depends on its family platform for its success in protecting family values.”
One could wonder how pursuing justice for the crime that made the marriage unstable difficult given that the wrongdoing had damaged the sacredness of marriage. The marriage was already in trouble when one spouse tried to sexually assault the other; looking for redress for wrongs that shouldn’t have been done cannot be an excuse to keep it that way. In addition, it was argued in Nimeshbhai Bharatbhai Desai Versus State of Gujarat that criminalising marital rape would require amending laws based on religious customs, such as the Hindu Marriage Act, 1955, which mandates that a wife must have sex with her husband (section 9 of the HMA, restitution of conjugal rights points towards the same)..
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