Table of Contents
Introduction
Rape is unlawful sexual intercourse without the consent of another person. In India rape comes under sections 375 and 376 of the Indian Penal Code. But this law avoids marital rape, it only includes offences that are between the individuals not between the married couples.
Rape is not the only offence against women but the violation of their personal liberty under article 21 of the constitution. In India, people reflect that if they are married, they have the right to sexual intercourse without the consent of their wives in any manner. Marital rape happens because, in India, people still think that women are not an important part of their life. This discernment has laid down women’s uniformity and equity.
It has been proved that marital rape has more traumatic and long-lasting results on the physical and mental behavior of women. Today, several countries have established marital rape laws to protect the rights of women, with the reorganization of the special rape act. In 2006, it was amended that marital rape is an offence that comes under criminal law in no less than 100 countries and India is not one of them. Despite this fact, there has been a lot of institutions gone in India offences against women are increasingly in their own houses.
Section 375 states that the offence of rape “sexual intercourse or any sexual act done by a man with his wife, the wife not being under the age of 15years is not rape”. Section 375 is an exception of IPC is inconsistent with and violative. Further, the Supreme Court includes the sanctity and freedom of women under Article 21 of the constitution. Therefore, this clause is violative under Articles 14 and 21 of the constitution, since it is arbitrary and violates the right of life of married women.
Non-Criminalized Crime in India
The importance of consent of every individual decision cannot be emphasized. A woman can protect their life and liberty but not her body, within her marriage, which is ironic. A Woman only has Section 497A of the Indian Penal Code to protect herself from cruelty, to prevent herself from “sexual conduct of her husband”.
The 172 Law Commission had made some recommendations for some changes in laws to protect the rights of a married woman against sexual conduct.
- Rape should be replaced with the term sexual assault.
- Sexual intercourse contained under section 375 of the Indian Penal Code contains all types of intercourse.
- Rape laws should be made gender-neutral.
- Section 375(2) of the Indian Penal Code should be deleted. Forced sexual intercourse must be treated equally as an offence just as physical violence done by the husband is treated.
Why India is Confused about the Marital Rape Laws
Marital rape is excluded from the definition of rape in India. But in some other countries, there are definite laws for marital rape. In India, Section 375 exception (2) absolves the husband from crime if he rapes his wife. These laws are contradicting each other. Through various judgments of the Supreme Court, it is clear that Article 21 of the constitution includes the right to privacy, right to choose sexual activity, and sanctity of women, from there we can assume that any sexual activity without the consent of the wife done by the husband is wrong/ punishable but India still did not have any distinct law for marital rape.
Status of Marital Rape in India
Shashi Tharoor member of parliament introduced a bill “the women’s sexual, reproductive and menstrual rights bill, 2018”in Lok Sabha to amend certain legal Provisionals which will reduce crime against women after marriage. The bill seeks to remove exception 2 from Section 375 of IPC. The effect of the exception is that the husband forces their wife for sexual intercourse and there is no way for the wife to get out of it, he cannot be liable to rape his wife. The bill introduces to punish the husbands who force their wives to have sexual intercourse without her consent. In the current scenario, the bill is on hold.
Judgments
- The Gujarat high court in its recent judgment in “Nimesh Bhai Bharat Bhai vs. the State of Gujarat”, examining the law related to sexual offences, observed that husband need the prior approval or consent of his wife for the sexual activity, without her approval or consent what’s the difference between rape and your foreseeable activity with the wife without their consent. Court further explains that a husband does not owe the body of the wife by the reason of the marriage. The Gujarat High Court was of the view that the accused must be charged with outraging the modesty of wife and investigation to be needed in this direction.
- Case in Delhi High Court, Court dismisses the petition to the criminalization of marital rape, containing that the law functions the legislature rather than the Court, while Court is more concerned about the interpretation of draft of the constitution. The Case K.S Puttuswamy vs Union of India wherein said that privacy of an individual is an essential aspect of dignity and rape is the violation of the right to live with dignity. Rape is the violation of a women’s rights over her body, respect, dignity, and liberty.
Conclusion
Thus, at present, the only remedy against marital rape for married women in India are civil provisions under the Protection of Women from Domestic Violence Act or under Section 498-A of the Indian Penal Code on the cruelty against a wife by the husband or their relatives.
Several countries in the world are making laws against marital rape to support married women against sexual activity which are happening without their consent, countries like Poland, Norway, Sweden, and the Czech Republic have criminalized marital rape, while some other countries like India are still struggling to criminalize the offence.
Marital rape is not only discriminatory, but it also violates a wife’s right to live with dignity. Women have their fundamental rights which they have not surrendered yet and they will fight for their rights to get justice. Thus, any law which contravenes the provisions highlighted under the constitution needs to be abolished completely.
This article is authored by Divisha Srivastava, Student at SNDT School of Law, Mumbai.
FAQs:
What are the classifications of Marital Rape?
Marital rape can be classified into three categories. Firstly, Battering rape, here a woman is already subjected to physical abuse and rape is merely another form of abuse. Secondly, Force Only rape, the husband uses a degree of violence to have sexual intercourse with his wife. Thirdly, Obsessive rape, it involves unusual or odd requests of sexual intercourse and it is often violent in nature.
Why is it important to criminalize Marital Rape in India?
It is important to criminalize marital rape in order to protect the dignity and fundamental rights of a woman. Marital rape is also confronted with the breach of trust, good health and sexual privacy in addition to bodily assault. Immunity against marital rape does not satisfy the constitutional provisions laid down under Article 14 and 21 of the Indian Constitution.
Why is the offence of Marital Rape not regarded as 'Rape' under the Indian Penal Code?
Most of the Indian laws are strongly impacted by the English laws as India was a colony of the British for a very long time. The idea of excluding or decriminalizing marital rape stems from the concept of ‘Coverture’, it exhibited the absurd practice of a married woman relinquishing her distinct identity under the law and her husband gaining complete control over her. In recent times the Parliament is worried that it might destabilize the concept of marriage and a deceitful wife may take advantage of this provision to frame fraudulent acquisitions against the husband. In reality marital law cannot be brushed aside due to these concerns. A promising framework with specified standards of complaint must be created.
When can the husband be punished for an offence of Marital ape under the Indian Penal Code?
Yes, the husband can be punished under IPC for marital rape only when the wife is either below the age of 12 or between the ages of 12 to 15 or when a judicially separated wife is raped.
What recourse is available to a victim of Marital Rape in India?
Unfortunately the Indian Penal Code does not constitute marital rape as an offence because sexual intercourse is considered as an inherent part of marriage and the concept of consent still remains ignored. Hence, marital rape does not attract any criminal liability. However, the Domestic Violence Act of 2005 provides civil remedies in terms of monetary compensation and shelter against non-consensual sex or marital rape in India.
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