Marital Rape, the word itself conveys the meaning of forceful intercourse by a male partner or husband with his own female partner or wife. Rape is the most heinous crime committed against an individual which destroys a victim physically as well as psychologically. If rape is considered a genus then marital rape is said as one of its species. Marital rape is done without the spouse’s consent, by using threats. The essential characteristic of marital rape is the relationship between husband and wife. The reasons are numerous like petty domestic issues, a male-dominated society, the notion of a good wife, economic dependency, gender inequality, superiority of men over women, sexual perversion of men, and absence of a legal provision in the territory. Marital Rape is largely experienced by women all over the world. It has become such a serious issue now.
Law has been very vague on marital rape as per the observation. Many countries have not criminalized marital rape and India is one of them. Section 375 of the Indian penal code clearly defines rape and its punishment but it excludes marital rape or any such crime. One of the provisions (sixthly of section 375) provides that sexual intercourse by a man with a girl under 18 years of age is rape irrespective of the given consent by her. But in the same section, there is an exception attached to section 375 in which forceful sexual intercourse will not be considered rape when it is done by the husband with his own wife and the wife not being under 15 years of age. Therefore, if a girl is married and her husband commits a forceful sexual act on her then it is not considered rape if she is below 18 years of age but not below 15. Section 376 B – rape during judicial separation, an offense with imprisonment that is up to a maximum of 2 years and a fine but not rape. Section 498A -Marital rape comes under cruelty. Punishment of rape – imprisonment of not more than 10 years, may extend to imprisonment of life+ fine. There are some countries like China, South Africa, Afghanistan, Egypt, Iran, and North Korea where the punishment for rape is capital punishment i.e. hanging to death, shooting, etc.
In 1839, Lord Macaulay agreed with the exception of section 375 of the Indian Penal Code. He said it was a protection of conjugal rights. In 2012, during the Nirbhaya case, the Verma committee asked for the criminalization of marital rape. In 2015, Minister of Home Affairs, Parathibai Chaudhary said marriage is sacred so marital rape should not be criminalized. In 2021, Kerala HC said that marital rape is solid grounds for rape. In RIT FOUNDATION VS UNION OF INDIA, a split judgment came between Justice Rajiv Shakdher and Justice Hari Shankar. Justice Rajiv Shakdher said that marital rape should be criminalized and exception number 02 of section 375 of the Indian penal code is a violation of articles 14, 15, and 21 which guarantees equality before the law so it should be struck down. While Justice Hari Shanker said that exception 2 of section 375 should continue to exist.
Legislation in India has always had the deepest message inside it. The fact that marital rape is still not criminalized somehow safeguards the sacred relationship of husband and wife in Hindu marriage. The bond between a husband and wife is said to have been made in heaven and it should be protected. It is not made to be broken down and considered as purest form. But at the same time, we have human behavior to rule over others and regulate other rights. Again, to live in society we need to understand the community from its core. We, as human beings always want to exercise our rights. At the same time, we want to protect our rights but it’s human tendency to dominate the weaker. Women from time immemorial have been considered fragile and delicate. But we should not take this as an advantage to regulating women rather we should make new legislation to protect them. We must make sure to bring new and reasonable legislation on marital rape so that no one’s rights will be hampered. Only then it will provide justice to every single woman.
Author’s Name: Mimansha Singh (Maharaja Agrasen Institute of Management Studies)