This article was written by K. Lakshmi a student of M. S. Ramaiah College of Law, Bangalore
Section 375 of Indian Penal Code provides the provision of Rape which echoes barbarous sentiments, stated as its exception – “Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape”.
Marital rape otherwise known as spouse rape or rape in marriage, is a non-consensual sex by a husband against his wife. In simple words, when a man imposes sexual intercourse on his wife by force, where her consent doesn’t matter to him,it is called marital rape. Formerly, it was widely unrecognised as a crime by law but now changes have evolved and marital rape has been opposed by many all around the world and is being criminalised.
Most of the countries like the have made marital rape a punishable but India is one such country where Marital Rape has not been criminalised yet. In the view of Ms. Gandhi, the Minister of Women and Child Development, Marital rape cannot apply in India as marriage here is considered as sacrament and because of other factors like poverty, illiteracy etc. How can this statement be possibly understood? So is it allowed for a husband to sexually abuse his wife just because she is poor or illiterate? Rape should be considered as rape irrespective of the relationship shared between the person and the victim. In Sakshi v. Union of India and Others [2004 (5) SCC 518], the court held ‘sexual assault on any part of the body should be construed as rape
So, many women in India are victims of marital rape but hardly few come out and accept it openly and take steps to secure justice. This is because of the whole idea that it is impossible for a husband to rape his wife and they look for every reason to deny this very fact. This is mentally conditioned in their mind. As shocking as it sounds, In ancient days women were considered as a property and not persons and they weren’t given any rights over themselves or their bodies.
The view taken by an English judge from the 17th Century:
“No husband shall be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, as the wife have given herself in kind to the husband, whom she cannot retract.”
Justice Verma committee on Jan 23,2013 submitted its report in which one of the recommended changes were that the exception in section 375 with regard to marital rape should be removed and the relationship shared between the accused and the victim should not be considered relevant .They wanted the exception under section 375 of Indian Penal Code i.e. with regard to marital rape, to be deleted. However , these changes were not implemented.
The 172nd Law Commission report had made the following recommendations for change in the law with regard to rape.
Firstly,‘Sexual assault’ should replace the word ‘Rape’.
Secondly, Section 375 of Indian Penal Code must include penile, vaginal, oral, finger , objects and other such penetrations.
Thirdly rape of young boys has been generally ignored by law so rape laws must be made gender neutral.
Fourthly, Section 376E ,new offence with the title ‘unlawful sexual conduct” must be introduced.
Fifthly, section 375(2) should be removed and sexual intercourse by way of force by a husband against his wife should be treated as any other offence.
On March, 2016, the Parliament argued that “if marital rape is considered as a offence and brought under the law , the entire family will be under great stress.”
The conversations between the husband and wife during marriage is considered as a privilege communication in accordance to section 122 of the Indian Evidence Act.So, this prohibits them to disclose the communications between them except in the case where one of the partners is being tried for an offence against another. Since marital rape is not considered to be an offence, the evidence is not admissible in the court of law so this makes it really difficult for the victim to prove the offence of marital rape. This shows that the law has ignored equal rights to women as well as right to her body to protect herself from the abuse and they are being treated like a asset instead of a person.
This shows that there is a compulsory need for the protection of women as effects of rape is awfully disturbing and victims are put through unbearable physical injuries, depression, eating disorders, negative image about oneself etc. Rape victims completely lose their confidence and they have to go through a lot of therapy to get out of the same and be normal like any other person.
At present, a case can be filed by a wife under domestic violence which is being dealt by the civil court as a whole. This gives her a right to separate herself from the accused on the grounds of cruelty. The victims feel they are fighting literally a lone battle as there is no category in the Indian legal system to seek for justice for marital rape. Moreover, they are also being blamed for breaking the sacrament bond.
India believes in a theory called consent theory, that in every matrimony , an implied consent exists. This contention was also supported by Justice Michael Kate. The government authorities strongly feel like how dowry is being gravely misused by women and their families to catch hold of innocent men , the exact same thing might happen if marital rape is considered as a punishable offence. There are high chances of it being misused as it is impossible for anybody to prove the things that happen behind closed doors and they also felt that it would weaken the very institution of marriage.But this view is really absurd. Marital rape is a rape which cannot be ignored or taken lightly and such a law if criminalized must be used to get justice and should ensure that its not used as a means for harassment.