SHOULD MARITAL RAPE BE CRIMINILSED UNDER SECTION 377?
Author: Mohammad Azhad Hasan, Pursuing B.B.A.,LL.B. from The NorthCap University
Recently many petitions are filed in Delhi High court to criminalize marital rape under Section 377 by various women organizations in the effect of increased marital rape.
According to National Crime Record Bureau (NCRB) in India, 70% of women are the victim of domestic violence, in recent times marital rape is now one of its kind. According to World Bank data more than 100 countries have criminalized marital rape but India is part of 36 countries that is yet to criminalize marital rape.
In recent Chhattisgarh, high absolved a man from facing a trial allegedly raping wife on the pretext that Indian law does not recognize marital rape if the wife is above 15 years of age. Justice N.K Chandravanshi on hearing the case relied upon the exception of Section 375 which says that “sexual intercourse or sexual act by a man with his wife, the wife not being under fifteen years of age, is not rape “. This judgement draws criticism from various segments of the society especially from women organizations because women have been treated still as property of the husband.
Before the enactment of the Indian Penal Code 1860, rape was not a crime against women, as they are considered property of father before marriage and after marriage, their husband, any crime against women is considered to be done against their father and husband and they are the one-take action. After the enactment of IPC 1860, the crime against women was considered to be against them and they have all right to take action, but the offence of rape was limited to sexual intercourse without the consent of the woman and did not recognize marital rape.
In Babylonia 1900 BCE, a man would be punishable by death if he had sexual intercourse with another man wife or daughter, considering the woman is property of his father or husband. Rape was considered a property crime in the ancient period due which husband raping a wife or father raping his daughter is not considered a crime. In the 18th and 19th-century rape laws were introduced by British Empire because rape violates the sexual purity of women and any husband would not violate his wife sexual purity and hence again with another theory rape by husband is not a crime. Due to this conservative mindset Doctrine of Coverture become legal doctrine in common law whereby, upon marriage, a woman`s legal rights and obligations were subsumed by those of her husband. Due to these crimes, there was a sense of need to draft the Indian Penal Code.
Section 375 of IPC 1860 recognize rape as a crime against women and cover various type of rapes such as gang rape, campus rape etc. but did not recognize marital rape. Under Exception 2 of the given section, it is not raped if the husband forces her wife until she is less than 15 years of age. To criminalize marital rape Exception two has to be deleted.
WHAT ARE PROBABLE ARGUMENTS THAT WILL SATISFY TO CRIMINALIZE MARITAL RAPE
One of the main arguments is that even in the 21st-century women are treated as the property of the husband even though they have their rights and obligations which are protected by the supreme authority that is the constitution of India. Also, Exception 2 of Section 375 violates Article 14 by differentiating married women from unmarried. Another argument is that this act only held the husband liable when the girl is less than 15 years of age whereas the Prevention of Children from Sexual Offences Act (POCSO Act) recognize crime against women in the minor category till the age of 18 years. After the 2013 constitution amendment, the legal age for consent under section 375 has been increased from 15 to 18 but Exception 2 of the same section consider crime only when the woman is less than 15 years of age. Sexual intercourse with the wife without her consent infringes the right to autonomy given in Article 21.
ARGUMENTS AGAINST CRIMINALIZING MARITAL RAPE
Marriage is legal and formally recognized union of two people, both are associated partners who are together with mutual consent, as marriage is considered to be a legal contract between the parties in association there exist implied consent which gives both a right to indulge in sexual intercourse, so we can say that there exists a consent which is implied. Section 498a recognize crime against married women by her husband and relatives which partially cover marital rape by recognizing the act done without her consent. One of the main arguments is that there are increased cases of harassment against men by falsely implicating them under the Domestic Violence Act and marital rape is criminalized then there will be more cases where men are put behind bars by false implication.
Looking at present times it is difficult to determine whether marital rape should be criminalized or not because it is difficult for the parliament to strike the balance between various stereotypical approaches which governs society and its association.