Marital Rape-A Legal Infirmity

Updated: Apr 8, 2021

Marriages in India are affairs of pompous and grandeur. They are the most lavishly spent on and are a matter of status and pride in the society. While at the same time separation and divorce is frowned upon and ridiculed. Such reactions from society make it difficult for one to get out of a bad marriage. Domestic violence and abuse is a part of the lives of almost 70% of women in India according to The National Crime Records Bureau (NCRB) ‘Crime in India’ 2019 Report. One of cruelest forms of abuse woman in a marriage endure is marital rape. Marital rape is the act of sexual intercourse with Ones's spouse with lack of their consent. Unfortunately, India is among the 36 countries in the world that does not recognizes marital rape or spousal rape as a crime.


A heinous crime such as rape outrages a person's modesty and scars their physical as well as their mental well-being for life. According to Section 375 of the Indian Penal Code rape is defined as” non-consensual sexual intercourse with a woman”. However, exception to the above-mentioned section exempts husband from penal consequences if sexual intercourses regardless of consent Takes place between a wife and her husband, provided that the wife is above the age of 15. The legal age of marriage for woman in India is 18 years and thus marital rape does not come under any legal jurisdiction. As per the current law the wife is presumed to give perpetual consent to have sex with her husband after entering into marital obligations. The legal age of marriage for woman in India is 18 years and thus marital rape does not come under any legal jurisdiction. As per the current law the wife is presumed to give perpetual consent to have sex with her husband after entering into marital obligations. This likely signifies the relevance of the concept of male domination and female subjugation.


Wife a personal property of her husband?

In India a woman is supposed to be docile, passive, and adjusting in order to be an ‘ideal wife’. This notion stems out of repressive and rudimentary concepts set up by the society in order to save Marriages from falling apart. Marital rape isn't only present in the uneducated and poverty-stricken families but also hounds the homes of the educated, middle-class and upper middle-class homes. Girls are often conditioned by their mothers to be submissive and overlook acts committed by their husbands and families in order to save their marriage. The concept of marriage cannot sanction sexual slavery. What the society fails to understand is that a divorced daughter is better than a dead daughter. A worrisome analysis of the National Family Health Survey (NFHS) 2015-16 data highlights That an estimated 99.1 per cent of sexual violence cases go unreported and an average Indian female is 17 times more likely to face sexual violence from her spouse than from others.


Apprehensions of the parliament 

The Indian Parliament has time and again clearly shown its disapproval and dissatisfaction in criminalizing marital rape. it is of the opinion that touching such a sensitive subject would lead to the breakdown of marriage. Arguments of low divorce rates in India and misuse of such a law by women is what our legislators use to shield this oppressive and demeaning act. Legislators are of the opinion that seeking divorce from a sexually abusive man is a more comfortable recourse than penalizing him.

The Justice Verma Committee Report formed after Nirbhaya Ganga rape case recommended to remove the exception of marital rape under the act. The report slashed the common law of couverture and asserted that it is an outdated concept Where wife is regarded as a property. However Nonetheless the report was majorly ignored and only selectively and arbitrarily considered.

In 2016, Maneka Gandhi (former minister for Child and Woman Development) in a written reply in Parliament to a question on if the government is planning to criminalize rape, stated that the “concept of marital rape” which is understood internationally cannot apply in the Indian context. To back her bizarre argument, she pointed at the high levels of poverty and illiteracy in the country.


Judicial Shortcomings 

While remarks from common men and legislators justifying the ill egalitarian act Is a hard pill to swallow, the toughest one is to hear what one of the former Chief Justice of India had to say. In 2019 former CJI Dipak Misra commented that marital rape shouldn't be crime, as it would then create absolute anarchy in families. Such outlandish statements from the ones we hold responsible to safeguard our rights are petrifying. It is a matter of grave concern that there are no personal laws, criminal laws or civil laws existing in the country that empower the wife to seek remedy against her husband who repeatedly assaults her sexually.


A petition filed in the apex court of India by a woman in 2015 who was raped and brutally assaulted by her husband was dismissed. The court expressed that the reason or dismissal was that the law shouldn‘t change for the experience of one person. The Supreme Court fails to acknowledge that this is an issue faced by a number of women across the country at large. In Arnesh Kumar v, State of Bihar the Supreme Court observed that criminalizing marital rape would lead to the collapse of social and family systems admits the existing biased laws. In fact, the reasoning of misuse of Section 498A of the Indian Penal Code by women is contended.



Constitutional Status of Marital Rape In India

The inhibitions regarding criminalizing of Marital rape can be traced back to the colonial times. During the British era women were considered subordinate to their male counterparts to the extent that their identity stemmed out of their husbands. Women were not allowed to own property and their identities were merged with their spouse under the Doctrine of Coverture. The Indian Penal Code drafted in the 1860s did not recognize a married woman as an independent entity. It is clearly evident that the exception to the Indian Penal Code’s definition of rape is inspired by the archaic Victorian patriarchal notions.


It is clear as day that the marital exception is violative of Right to equality under Article 14 of the Indian Constitution. The exception divides women into two classes based on their marital status and immunizes the acts of the husbands against their wives. The exception victimizes married women based solely on their marital status while on the other hand safeguarding u married woman from the very same acts.


The Section 375 of the IPC protects woman and penalizes those who commit the heinous acts of rape. But this exception prevents husbands from being penalized which totally defects the purpose of the act. The repercussions of a rape are the same weather the woman is married or unmarried. In fact, it becomes arduous for married women to Escape such marriages as they are financially dependent and legally tied to their husbands.


Marital rape is also highly violative of Article 21 of the Indian Constitution, which includes right to health, dignity, privacy, safe living conditions among others. The dehumanizing act of forceful sex strips the wife of all these rights and makes her no more than a puppet in the hands of her spouse.



Conclusion

It is of outmost importance for the society at large to understand that the mere existence of a relationship is not a valid defense against sexual violence and under no circumstance be justified. The identity and rights of a woman needn't be dependent on her marital status. Hence it is time the legislature should take cognizance of this legal deficiency eliminating exception 2 under section 375 of IPC and bringing marital la under the purview of rape.

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