Is Forcible Sex Ground For Divorce?

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Introduction

Forcible sex after marriage or ‘marital rape’ mainly refers to sexual intercourse between a man and a woman, who is legally accepted as husband and wife, without the consent of the women for that intercourse.

The ancient patriarchs who came together to write their early covenants had used the rape of women to forge their male power- how then could they see rape as a crime of man against a woman? Women were wholly-owned subsidiaries and not independent beings.-Susan Brown Miller (Against Our Will)

Man and woman make up a society. They are the pillars that keep humanity standing on their feet. However, as time passed a war of proving who is the best among man and woman, a war between the two universally known genders then, started and slowly male chauvinism started taking over the absolute control of the society with power and opportunities and marking the women population as lowly, docile and submissive and thus, discrimination and a gender-based disparity was established. Which started out as a joint responsibility soon became an exhibition to show the subordination of women with respect to men in every field. To prove the greatness of men and how the world and humanity deserve to be dominated by them, soon, violence becomes their ultimate answer to prove their masculinity. The strength became the measurement of capability. For centuries it had been a way to dominate the female population and keep them in that subordinate place assigned to them by men to showcase their powers. The manifestation of female submission has been played, for centuries, as a historic power strategy to establish male domination all over the world. Even the relationship between men and women, their matrimonial wedlock, which is still held to be a holy union all over the world and regarded as a fulfillment of bond and the ultimate goal of every romantic relationship between two people, proved to be a strategic approach to keep women below men. Having a woman as a spouse gave men a bundle of special powers to suppress them in the name of the family or brainwash them into thinking how they were only made for taking the subordinate roles to their husbands

Is Forcible Sex Is Considered As Rape?

Among the different known violence towards women, rape is one of the most heinous and monstrous offense. Forcing a sexual relationship without the consent of the other person, mostly women is considered to constitute rape. According to survey data released by the National Crime Records Bureau (NCRB), every day India recorded a whopping 88 rape cases in 2019. Most of these cases were found in the state of Uttar Pradesh and Rajasthan and mostly towards women of vulnerable castes like the Dalits. The report also showed that there was a more than 40% increase in the rape vulnerability among women and a total of 3,13,289 cases of rapes were reported in the span of 2010-2019.

Rape has always been an instrument to make women vulnerable. For decades wars were won and women were sacrificed in the male-dominated society. They were degraded and seen as objects of entertainment. The vulnerability of women, for years, helped the male population bathe in the light of absolute monarchy. However, a similar incident in 2012 shook the nation. The rape of a paramedical student in a moving bus brought forth thousands of protests, marches, and rallies, and the government was brought down on its feet to compensate the people of the country but can rape only happen to unmarried women? NO!

Marital rapes, just like decades of overlooking rapes as even a crime, are still being overlooked and making the married women population vulnerable. Forcible sex with husbands like their bodies belong to their husbands and not to them, has been downright engraved in the minds of the women of the country. Most people like to stay unaware of even acknowledging the word because it might hamper the family culture and integrity of the nation. The government does not identify marital rape as a crime in India. Girls of age 15 and above, in a married relationship, if forced into making unconsented sexual intercourse (Forcible Sex) with their husbands, are not considered to be an offense.

Also Read: Rising False Rape Cases in India

Forcible Sex- A Ground For Divorce?

Forcible sex after marriage or ‘marital rape’ mainly refers to sexual intercourse between a man and a woman, who is legally accepted as husband and wife, without the consent of the women for that intercourse. Section 375 of the Indian Penal Code, according to its exception 2 to the section explicitly gives the right to a husband to rape his wife without it being constituted as one of their wives are of age 15 and above.

Over the years, a lot of developments happened. Laws were made and repealed. Protests took place on huge scales and so did conspiracies but the extreme series of misogyny against women, married or unmarried, and the accentuation of sabotaging and dehumanizing culture against women didn’t go down much. The laws of the country proudly enshrine gendered laws and reject petitions for changes. But among the different rights that were established for good, divorce became one of the best rights for people in wedlock or most appropriate for women in a degressive union who wanted an out.

Marriage is termed as sacrosanct by Indian law but the holy union between two people where each of them gets equal shares of happiness and responsibilities was far from what the reality dealt with. Hidden behind the idea of a fairy tale, marriage involved the commitment of all the gut-wrenching crimes like marital rape, domestic violence, forcible prostitution, etc with a stamp of automatic consent from their female spouses. Marital rape is not a legally recognized crime in India and thus, not an established criterion for seeking a separation. However, marital rape constitutes a huge part of violence against women in the country. In a survey by RIT Foundation, 1 among 3 men admitted to making a sexual relationship with his wife without her consent, and every 3seconds 1 woman is regularly raped by their husbands. The foundation also filed a petition before the Higher Court to criminalize marital rape but more than five times the petition has been rejected by the benches. According to one of the surveys by the UN Population Fund, in India, more than two-thirds of married women between the ages of 15 to 49 face violence from their husbands in the form of beatings, rape or forcible sex, forcible prostitution, etc. Maneka Gandhi, in 2016, the former minister of Women and Child Development, said that the concept of marital rape, which is internationally understood, cannot be suitably applied in the Indian context due to various factors like level of education, illiteracy, poverty, and a plethora of social customs and values and religious beliefs and most importantly the mindset of the society that treats marriage as holy and sacrament.

Also Read: Denial Of Sex Amounts To Mental Cruelty

Marital rape (Forcible Sex), by not being legally pronounced as a crime, leaves only one legal way for a married woman to seek separation, and that is by filing a civil suit under the Domestic Violence Act, Section 498A of the IPC, on cruelty against wife by husband or husband’s relatives. The taboo surrounding the issue of female sexuality and rape and the wrong idea of how the burden of sacrifice lies on women in case of being raped by a man and also Indian laws’ ignorance, or stubbornness, to consider marital rape as a heinous crime exemplifies the government’s unwilling attempt to effectively evaluate this issue. The fear of retaliation and humiliation and the abstract concept of family honor and reputation are more prioritized over the prevailing injustices and as a result, thousands of marital rape cases go unreported every year. The former chief justice of India, Dipak Misra, at a conference spoke about marital rapes in India. He said that according to him marital rapes should not be regarded as an offense in India because that will create anarchy in families and as our country is sustaining itself because of these family platforms which upholds family values and integrity, it will have adverse effects on cultural spheres.

However, a small ray of hope could be seen when the Punjab and Haryana Court in a petition by a woman from Bhatinda said that forcible sex after marriage amounts to cruelty toward spouse which is a valid reason for seeking a divorce.

Conclusion

Consent to make a sexual relationship can be withdrawn at any time. Marriage is not the key to possess the right over a woman’s body. But this very fact is being constantly contradicted by the country’s legal body and the government. The sacred institution of marriage is being placed as a cover to carry forward a wrong, criminalized, offense just because the country is standing on the platforms of family and culture for decades and thus, the country is still pushing forward the colonial coverture law where women are stopped being considered as a separate individual after marriage and her existence gets entangled with that of her husband and she becomes his property. The present government in India argued in Delhi High Court that criminalizing the rape of married women by their husbands can destabilize the institution of marriage and it can become an easy ‘tool’ for harassing husbands in front of a nationwide people. The view plays as a distraction and the focus is successfully shifted from the victim to the abuser by swiftly making the abusers the victim. The 2 in 5 cases of misuse of laws by women is hoarded as the ultimate prevailing thing and the thousands of real cases are buried underneath that.

And thus, when the Indian Constitution guarantees article 14 ‘equality before the law’ for everyone than after so many years of independence why is the bodily right of a woman, married or unmarried, is solely not hers yet? And how long will these state-sanctioned rapes, marital rapes, be treated as an absolutely normal phenomenon? Continue to linger in our minds.

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