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Author: Priyanshi Bajaj, pursuing B.B.A.,LL.B. from O.P.Jindal Global University

‘Rape’ is defined under section 375 of the Indian Penal Code,1860 where an essential ingredient to recognize the crime is lack of consent. This section mentions an exception for married couples who can be a victim for the same offense.

“Exception 2 —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

‘Marital rape’ is an offense which is committed where the perpetrator is the husband of the victim. Only 52 countries have recognized marital rape as a crime. In India, the reason behindnot criminalizing marital rape and including this exception is discussed by the law commissions, parliamentary debates and even inthe judicial decisions. The reasons advanced by such organizations are broadly to protect the sanctity of the institution of marriage and mentioning of existing alternative remedies for women in the law.

Four primary justifications were proposed for not criminalizing marital rape in India. The reasons put forth were a clear manifestation of the interplay between marital rape and protecting marriage from the interference of law.

First and foremost, argument, that was put forth was based out of a preconceived notion that women were subdued by their husband. The premise on which marital rape was not criminalized was essentially based on the idea that women did not have any rights in the marriage and belonged to the husbands. The husband was the master of the wife and enjoyed complete rights over her body. Women being a chattel to their husband was not allowed to revolt against anything. The same ideology was adopted back then for framing laws for adultery.

The second justification for not identifying marital rape as a crime was because of the theory of unities. This theory states that after marriage, the identity of a women is merged with that of her husband and they do not have any individual recognition. Women are associated with the man and they do not have any individual voice to frame any opinion.

The next justification given after a feminist revolutionafter 1970 was based on the rationale of implied consent theory. Here, an incontestable presumption of consent is taken into consideration when two people are bound by the civil contract of marriage. Participation in sexual activities is thought to be defining an important element of the civil contract. When two people enter into this contract of marriage, it is deduced that those people have allowed themselves to engage in sexual activities during all point of time in the unification.

The fourth argument raised in the recent times for not validating marital rape as a sin is because it is thought that criminal law must not interfere between the marital relationships between husband and wife. It is considered to be a matter within the private sphere of those individuals where law must not be allowed to penetrate. It is further substantiated by saying that if law intervenes in such private matters it would be doing a greater injustice in the society than protecting women from such cruelty.

The consent for sexual activities had been interpreted differently by the courts in different instance. For example, an interpretation of section 376B of the Indian Penal Code,1860 would clearly manifest that living together raises a presupposition of consent to sexual intercourse by the husband. The law holds charges against a husband if he forcefully asks his wife to engage in sexual activities with him if they are living separately during that time. It is not reasonable for the courts to shield the crime of rape from the operation of law if two people are living together.

In 2012, the Criminal law amendment bill replaced the word ‘rape’ with ‘sexual assault’ in order to widen the scope of the crime but still it did not accommodate any provision to criminalize marital rape. The suggestions proposed by the J.S. Verma report were not even taken into consideration. The standing committee formed during that time rejected the recommendation of striking off the exception clause of section 375 of the Indian Penal Code on broadly two grounds. Essentially it said that if law is allowed to perforate into the matters of the ‘private sphere’ of a family, the whole family system would be under stress and the courts would be doing more injustice to the whole network prevalent in the society. The next argument was that sufficient remedies already existed for a woman to take a legal recourse in case she is being subjected to domestic violence or cruelty by her family. The remedy in criminal law is through the concept of cruelty as mentioned in section 498A of the Indian Penal Code,1860. They can also seek recourse through the Protection of women from domestic violence Act, 2005. The essence of the reasoning is that criminalization of marital rape does not fit into the Indian context because of the established idea of the society to treat marriage as sacrament. This question has been avoided by the legislation by saying that the matter has been taken up but still no decisions were given. The judiciary has disregarded petitions to strike down the exception clause. The goal is to protect the conjugal rights of individuals.

The culture has played an important role in shaping the law of the country. The state’s selective intervention with the private sphere even when the women is undergoing cruelty is problematic. The step taken back by the state to provide legal justice when a married woman is being raped by her own husband is degrading to human dignity and monstrous to human spirit.

In the case of Independent thought v. Union of India 2018, it was decided by the court to strike down a part of the exception clause of section 375 of the Indian Penal Code,1860. Under Protection of children from sexual offences Act, 2012 (POCSO) it is illegal to have sexual intercourse with a child under eighteen years of age but the exception clause mentioned in the Indian Penal Code,1860 allows a man for this affair if the girl that he is married to is between the age of fifteen and eighteen. This differential treatment by the state exclusively on the basis of marriage is unreasonable and unconstitutional.

Rape should also be treated differently from grievous hurt or assault. It has a different threshold in the evidence law as well. Rape is associated with complex patriarchal and power structures of the society. Therefore, there is a stark difference between the nature and act of rape from the act of cruelty on women. The law must allow specific criminalization of marital rape to note that the rapist or the perpetrator has violated the law and not only the body of the victim. The offense of cruelty is a ground for divorce but does not accommodate sexual offenses committed on a married woman. Therefore, the argument that in case a woman needs a legal help when she is abused sexually it can seek recourse through section 498A of the Indian Penal code,1860 should not be validated.

The next argument raised that criminalization of rape would be too much interference with the family system as it can be dealt within the family itself and a crime should not be criminalized because it is culturally acceptable by the majority of the society should also not be affirmed. Laws and regulations regarding ill practices like sati, dowry and special privileges provided to the lower caste and minority are instances where these practices were widely acceptable by the majority of the society but still reforms were needed to identify whether an act was wrong or not.

If marital rape is not taken up as a specific crime and is allowed in the country then there is a clear violation of Article 14 of the constitution of India which provides women equal rights and autonomy over her body as much as a man enjoys.

Four prong suggestion to effectively criminalize rape by J.S. Verma report must be regarded and there should be no reason to validate spousal exception in cases of rape. Hence, accused in marital rape must be charged with same sentencing policies as adopted in commitment of crime like rape.


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