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CRIMINALIZATION OF MARITAL RAPE IN INDIA

Updated: Feb 20, 2022

Written by: Boddu Harshith Sai


“Her friends used to tell her it wasn’t rape if the man was her husband. She didn’t say anything, but inside, she seethed. She wanted to take a knife to their faces”- F.H.Batacan.


Introduction


In India,the act of Marital Rape had always been under the limelight. The laws that are present in India primarily focus on the act of sexual offences, rape, and domestic violence. But there is no act or law regarding marital rape. Firstly, the term rape means the sexual intercourse without the consent of a woman.[1]Marital Rape is a serious concern in society, it should be conceded as soon as possible because many women will also become victims of the act. The term marital rape means the sexual intercourse between husband and wife, but without the consent of the wife. In many developed countries, marital rape is considered an offence equal to rape. In India, under Section 375 IPC there is an exception that if the sexual intercourse takes place between husband and wife and the wife is over fifteen years of age it will be not termed as rape.[2]

Legal Position in India


Before the amendment of section 375 in the year 2013, it is said that women between the ages of 12-15 years and the accused will only be charged with a fine or imprisonment for two years. And after the amendment, the clause that was present before has been removed, but the amendment did not talk about marital rape. In the case of Anuja Kapur vs. Union of India, the petitioner had filed a PIL for framing the necessary laws and guidelines regarding marital rape before the High court of Delhi.[3] But the Delhi High court had made a statement that drafting the laws are the duties of the legislatures and not of the court.

There are certain provisions for the protection of women under such offences they are the protection of women from any act of her husband that may harm her and injure her.[4]The 172nd report of the law commission of India considered the issue, but it had ignored the deletion of exception-2 of section 375 IPC based on that it may cause intervention between the relation of husband and wife.[5] Even in the report given by the Justice JS Verma committee, which is titled “Amendments to Criminal Law”, it is said that mere removal of exception-2 of section 375 will not lead to the stoppage of marital rape, but we need a societal change in the Country.

Violation of Legal and Constitutional Rights


  • The doctrine of Coverture: This doctrine is derived from the common law, during the formation of the Indian Penal Code, 1860. In those times men and women were not considered as equals according to the Victorian Patriarchal Norms and there is no identity for the women as they have the merged identities of husband and wife under this doctrine.


  • Article 14 of the Indian Constitution: Marital Rape violates article 14 of the Indian Constitution as this article says that every person is equal before the law and has equal protection by the law. But in the case of marital rape, the women are being the victims of the acts of the husband, and they were not given an equal degree of power. And there were no provisions for making marital rape an offence, rather it does not amount to rape


  • Section 375 of Indian Penal Code: This section deals with rape, if a man commits sexual intercourse with a woman without her consent or against her will he said to be committed the crime of rape. But this section has been silent on the married woman, this woman has no right to file a case because the act amounts to marital rape. Being married women they are mostly dependent husband’s earnings


  • Article 21 of Indian Constitution: Article 21 says that no person shall be deprived of the right to life and personal liberty according to the provisions that were established by the law, which include the right to privacy, right to health, right to live with dignity. In the case of Justice K.S. Puttuswamy vs. Union of India it was held that the right to privacy is a fundamental right to every citizen of the country.[6]By this, we can say that exception-2 in section 375 of IPC will be violating article 21 because in that section the husband is protected from the offence of rape of a wife who is aged above 15 years. And in the case of the State of Karnataka vs. Krishnappa, it was held without the consent of women if sexual intercourse would amount to physical assault and sexual violence.[7]Therefore, the forced act of sexual intercourse will violate article 21 of the Indian constitution.


Conclusion


In this modern era, Indian laws should treat both husband and wife equally and protect women from the offence of marital rape. It is important to recognize the major lacuna in criminal law and defeat the present law by granting equal rights to women with men. From all the arguments mentioned above, there should be immediate criminalization of marital rape should be taken place and include the same offence as rape under section 375 of Indian Penal Code. And remove exception-2 of section 375 of IPC for rape because it will take down the fundamental rights of women and equality among the citizens will also occur. So, I would finally conclude that for a country to be progressive a law should be brought to criminalize marital rape, so that there will be no violation of women’s right to dignity and wellbeing.



[1]The Indian Penal Code, 1860(Act No. 45 of 1860), S.375 [2]The Indian Penal Code, 1860 (Act No. 45 of 1860), S.375, Exception 2 [3] Anuja Kapur v. Union of India (AIR 2019) [4]The Protection of Women from Domestic Violence Act, 2005 (Act No.43 of 2005), S.3 [5] Law Commission of India, 172nd Report on Review of Rape Laws,(Ministry of Law and Justice, 2000) [6]Justice K.S. Puttuswamy v. Union of India (AIR 2017, SC 641) [7]State of Karnataka v. Krishnappa (2000) 4 SCC 75

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