Marital Rapes in India

Syllabus: General Studies Paper 1

Context:

Marital rapes has not been criminalised in India

Background:

• In 2017, the Supreme Court, in Independent Thought v. Union of India, refused to delve into the question of marital rape of adult women.
• SC examined an exception to Section 375 (rape) of the Indian Penal Code (IPC) which allows a man to force sex on his wife. 
• Recent rulings by High Courts have been contradictory — one backed marital rape as a valid ground for divorce, while another granted anticipatory bail to a man while concluding that forcible sex is not an “illegal thing”. 
• Recent rulings by High Courts pointing out that any sexual act between a man and his wife, even if it involves force, is not rape.

Marital Rape

• Marital rape, the act of forcing your spouse into having sex without proper consent
• It is an unjust yet not uncommon way to degrade and disempower women. 

Recommendation of committees regarding Marital Rape

• In 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) recommended that the Indian government should criminalize marital rape. 
• The JS Verma committee set up in the aftermath of nationwide protests over the December 16, 2012 gang rape case had also recommended the same.

Indian Law on Marital Rape?

• One of the most horrifying and repressive issues with the Indian legal regime is that marital rape is perfectly legal
• Section 375 of Indian Penal Code (IPC) defines the offence of rape with the help of six descriptions. One of the exceptions to this offence is “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape”.

Criticism of India’s Law on Marital Rape

• Against International Norm: Today, it has been impeached in more than 100 countries but, unfortunately, India is one of the only 36 countries where marital rape is still not criminalized
• Concerns of Implied Consent: The concept of marital rape in India is the epitome of what we call an “implied consent”. Marriage between a man and a woman here implies that both have consented to sexual intercourse and it cannot be otherwise. The Indian Penal Code, 1860, also communicates the same.
• Against Right to Life and Right to Equality: The Supreme Court has included sanctity of women, and freedom to make choices related to sexual activity under the ambit of Article 21. Therefore, this exception clause is violative of Article 14 and Article 21 of the Indian Constitution.
• Patriarchal outlook of Laws: Rape laws in our country continue with the patriarchal outlook of considering women to be the property of men post marriage, with no autonomy or agency over their bodies. They deny married women equal protection of the laws guaranteed by the Indian constitution.
• Differentiates Married & Unmarried women: A married woman has the same right to control her own body as does an unmarried woman. Unfortunately, this principle is not upheld in Indian rape laws.
• Marital Rape is more dangerous to Women’s life: Rape is rape, irrespective of the identity of the perpetrator, and age of the survivor. A woman who is raped by a stranger, lives with a memory of a horrible attack; a woman who is raped by her husband lives with her rapist.
• Colonial Hangover:  Our penal laws, handed down from the British, have by and large remained untouched even after 73 years of independence. But English laws have been amended and marital rape was criminalised way back in 1991. No Indian government has, however, so far shown an active interest in remedying this problem.
• Violative of UN Convention: Section 375 (Exception) of IPC is inconsistent with and violative of these principles of United Nations Declaration on the Elimination of Violence against Women
• Does not pass the test of “intelligible differentia”: Essentially, Section 375 (Exception) creates a classification not only between consent given by a married and unmarried woman, but also between married females below 15 years of age and over 15 years old. Such a classification does not pass the test of “intelligible differentia

Way Forward

It is high time that the legislature should take cognisance of marital rape and bring it within the purview of rape laws by eliminating Section 375 (Exception) of IPC. By removing this law, women will be safer from abusive spouses, can receive the help needed to recover from marital rape and can save themselves from domestic violence and sexual abuse.

The Hindu Link:

https://www.thehindu.com/opinion/op-ed/why-hasnt-marital-rape-been-criminalised-in-india-yet/article36389372.ece

Question: Indian law on marital rape needs critical review taking in cognisance of its shortcomings. Comment.