What is Rape?
IPC has defined Rape under Section 375 as sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation, or fraud, or at a time when she has been intoxicated or duped or is of unsound mental health and in any case, if she is under 18 years of age, under the circumstances falling under any of the following seven descriptions:
- Against her will and Without her consent,
- With consent obtained under fear of death or hurt,
- With consent given under misconception of the fact that the man is her husband but the man knows that he is not her husband,
- Consent given because of unsoundness of mind, intoxication, or under influence of any stupefying or unwholesome substance,
- With a woman under 18 years of age with or without consent.
What is Marital Rape?
Marital rape is the act of sexual intercourse with one’s spouse without the spouse’s consent. The lack of consent is the essential element and need not involve physical violence. Marital rape is not an offense in India. Section 375, the provision of rape in IPC, mentions as its exception clause- “Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape.” Hence marital rape is viewed as a rape just if the spouse is under 15 years old, and the seriousness of punishment is milder. There is no lawful security agreed to the spouse after the age of 15, which is against human rights directions.
Laws related to Marital Rape in India
India doesn’t consider marital rape a crime yet, but it has an exception in the IPC under Section 375, a man who has intercourse with his wife who is above the age of 15 years is not considered rape by her husband. While intercourse with a separated wife is considered rape and such a person shall be punished with up to 7 years of imprisonment under a separate law.
According to the Doctrine of Coverture, a woman had no independent legal identity of her own after marriage. Her identity was merged with that of her husband and all her property was passed on to him.
Section 375 of IPC (1870), heavily influenced by these doctrines, continues to work on such weaker sex notions of women.
Recently, the Kerala High Court allowed ‘marital rape’ as a valid ground for divorce. The combined message of these efforts is to assert that women have an identity and agency of their own. Being in a marital relationship cannot be used as a cover to violate the same.
Reasons Why Marital Rape should be Criminalized in India
There are plenty of reasons why this immunity requires a relook today:
- Violation of Fundamental Rights
Marital rape is a direct assault on women’s right to life with dignity (Article 21). Forcing a woman for sex and inflicting violence on her, is a blatant breach of her dignity. It is also a cruel suppression of her dissent. Marital rape also violates the right to equality enshrined under Article 14. The notion that consent for marriage denotes ‘consent in perpetuity’, imposes undue coercion on women.
- Inconsistency in Law
In the Chhattisgarh High Court, a wife framed multiple charges against her husband. This included charges under Section 376, Section 377, and Section 498A. The Court bound by law had to dismiss the husband on the ground of Exception 2 to Section 375.
- Impact on women’s health and psychology
Cases of marital rape are mostly driven by the husband’s low self-esteem, unemployment, urge to assert power, alcoholism, etc. Marital rape causes immense physical pain as it is nothing but a sexual assault.
- Government’s Stance
Today people are more aware of the atrocities associated with marital rape. Despite this, the government of India has shown repeated reluctance in criminalizing it.
In the Independent Thought v. Union of India Case (2017) also, the government defended the marital rape exception. The government argued that criminalizing marital rape is ‘against the institution of marriage. It is against Indian culture and will destabilize the whole institution of marriage. However, the judgment by the Supreme Court in the case cleared the mist of misogyny hovering over the government.
The Indian law has clearly failed to provide proper protection to women as they are still being treated as the property of the husband and he has all the rights to utilize her. The topic of marital rape is crucial in establishing equality for married women. It is high time that the Government of India uproots the norm of marital rape immunity. It is a long-overdue decision for making homes safer for women. In fact, criminalizing marital rape is a necessity for India to progress towards a more equal and humane society.
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(MARCH – APRIL 2022)