IS MARITAL RAPE LEGAL IN INDIA?

Two months ago the Chief Justice of India asked a question to a rape victim that, whether she will marry the rapist or not. In another case the accused was alleged to have promised marriage and the victim got brutally and sexually abused by the accused, in this case too The Supreme Court asked the Advocate that how the question of rape has arisen in the case where two people are living together like husband and wife. In both the cases, the crimes amount to severe penalties under the Criminal Law (Amendment) Act,2013. Instead of giving harsh punishment, the Supreme Court asked the accused whether he would be willing to marry the victim or risk going to jail. Activists say by offering marriage as a solution to a rape victim, the judiciary failed to protect the rights of a women. Equal rights activists have always worked hard against misogynistic mindsets like such as blaming the victim for rape. This battle for equality becomes even more difficult when people in high offices make these type of offensive remarks.

If we see the NCRB Data 2019, a total of 4,05,861 cases of crime against women were registered during 2019, showing an increase of 7.3% over 2018. Almost 70% of women in India have faced Domestic Violence either directly or indirectly. The crime rate registered per lakh women population is 62.6 in 2019.

Section 375 of Indian Penal Code (IPC) states what is RAPE and the Exception 1 of the section talks about a medical procedure or intervention shall not constitute rape. Exception 2 of the same says that if a man performs sexual intercourse or acts on his own wife and the wife is older than fifteen years of age then, that act will not be considered as Rape. So, it concludes that there is no such term or offence like ‘Marital Rape’ in our country. As per the current law, a wife is presumed to deliver perpetual consent to have sex with her husband after entering into marriage, this is known as Implied Consent. Whenever the topic of Marital Rape has been came forward, the failure of no criminalization of Marital Rape has been seen from the ages by giving an excuse that it will somehow destabilize the institution of marriage.

The Criminal Law (Amendment) Act, 2013, does not provide any type of recommendation for criminalizing the Martial Rape. The Justice J.S. Verma Committee had advised that the law should specify that a marital or another relationship between the perpetrator and victim cannot be defend against sexual violation. The Verma Committee had been constituted to recommend amendments to criminal laws Nirbhaya Gang Rape. It sought an exception for the definition of marital rape in the existing laws.

LANDMARK JUDGEMENTS ON MARITAL RAPE-

  1. The judgment of the European Commission of Human Rights in R. vs U.K., had concluded that, “A rapist remains a rapist regardless of his relationship with the victim”.
  2. In Shimbhu & Anr vs State of Haryana, 2013, the Supreme Court said that the offer of a rapist to marry the victim cannot be used to reduce the sentence prescribed by law.

In the past, the Supreme Court had ruled that- a compromise between a rape victim and the accused or convict not to prosecute the complaint further cannot be a leading factor in lesser punishment. There are almost 36 countries in the world who does not either have the provision of Marital Rape or it is specifically mentioned that Marital Rape is not a Rape and India is one of those countries.

In 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) recommended that the Indian Government should criminalize marital rape.

So, till date raping a women being in a marriage is no offence.

 

SURBHI GOYAL

BY LEXCLIQ

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