Marital rape and laws in India by Charu V at LEXCLIQ

Position in India:

Women in India who experience and wish to challenge sexual violence from their husbands are currently denied State protection as the Indian law in Section 375 of the Indian Penal Code, 1860 has a general marital rape exemption. The foundation of this exemption can be traced back to statements made by Sir Matthew Hale, C.J., in 17th century England. Hale wrote:

“The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract”.

This established the notion that once married, a woman does not have the right to refuse sex with her husband. This allows husbands rights of sexual access over their wives in direct contravention of the principles of human rights and provides husbands with a licence to rape; their wives. Some progress towards criminalizing domestic violence against the wife took place in 1983 when Section 376-A was added in the Indian Penal Code, 1860, which criminalized the rape of a judicially separated wife. It was an amendment based on the recommendations of the Joint Committee on the Indian Penal Code (Amendment) Bill, 1972 and the Law Commission of India. The Committee rejected the contention that marriage is a licence to rape.

Laws in India:

The definition of rape codified in Section 375 of the Indian Penal Code [IPC] includes all forms of sexual assault involving nonconsensual intercourse with a woman. However, Exception 2 to Section 375 exempts unwilling sexual intercourse between a husband and a wife over fifteen years of age from Section 375’s definition of “rape” and thus immunizes such acts from prosecution. India is one of the thirty-six countries that still have not criminalized marital rape. Hence marital rape is viewed as a rape just if the spouse is under 15 years old, and the seriousness of punishment is milder. There is no lawful security agreed to the spouse after the age of 15, which is against human rights directions.

According to the Indian Penal Code, the cases wherein the spouse can be criminally arraigned for an offense of marital rape are as under. When the wife is between 12 – 15 years of age, offence punishable with imprisonment up to 2 years or fine, or both. When the spouse is underneath 12 years old, offense culpable with detainment of either portrayal for a term which might not be under 7 years but rather which may reach out to life or for a term stretching out up to 10 years and should likewise be subject to fine. Rape of a judicially isolated spouse, offense culpable with detainment up to 2 years and fine. Rape of wife of above 15 years in age is not punishable.

REMEDIES

The present remedies that can be followed are:

IPC and the Domestic Violence Act, Sec 498A deals with cruelty caused by the husbands and their relatives;

“498A. Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine.”

Sec 3(a) of the Act can be considered as an improvised provision of sec 498A of the Indian Penal Code. Sec 3(a) of the Act enunciates that any harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse. But on the whole, these remedies are found inadequate to compensate the extreme sufferings of the victims.

 

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