‘Rape’ is defined under Section 375 of the Indian Penal Code, 1860; however, there is no definition of marital rape under the ambit of the Indian law. What is marital rape? Marital rape is the act of sexual intercourse with the partner or spouse without consent. It is considered as a form of domestic violence and sexual abuse. The cases of marital rape are rapidly increasing in the country. In India, marital rape has been de facto but not de jure, that is, it is true in fact but not officially sanctioned or is not defined in any statute or law. Though marital rape is the most common form of masochism in Indian society, it is often hidden behind the pillars of marriage. 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.
MARITAL RAPE AGAINST LEGAL AND CONSTITUTIONAL RIGHTS
Violation of Article 14– Marital rape violates the right to equality enshrined in Article 14 of the Constitution of India.
Violation of Article 21– The rights enshrined in Article 21 include the right to health, privacy, dignity, safe living conditions, safe environment, among others which are being violated.
Doctrine of Coverture– Marital rape is largely influenced by and derived from the doctrine of coverture of merging woman’s identity with that of her husband.
MARITAL RAPE AND SECTION 375 OF THE IPC
The purpose of Section 375 of IPC is to protect women and punish those who engage in inhumane activity of rape. However, exempting husbands from punishment is entirely contradictory to that objective, as the consequences of rape are the same whether a woman is married or unmarried. Moreover, married women may actually find it more difficult to escape abusive conditions at their homes because they are legally and financially tied to their husbands. Section 375,the provision of rape in the Indian Penal Code, 1860, effectively states in exception 4, ‘Sexual intercourse by the man with his own wife, the wife being under 15 years of age, is not a rape’, defeating the spirit of Section 375 of the Indian Penal Code, 1860.
MARITAL RAPE AND DOMESTIC VIOLENCE
In 2005, the Protection of women from Domestic Violence Act was passed which although did not consider marital rape as crime, did consider it as a form of domestic violence. According to this Act, if a woman has undergone marital rape, she can file a suit and appeal for judicial separation from her husband.
Marital rape has been impeached and criminalised in more than 100 countries but, unfortunately, India is one of the 36 countries where marital rape is still not criminalised. There are various legal amendments for the protection of women; however, the non-criminalisation of marital rape in Indian undermines the dignity and human rights of women. Therefore, it is the need of the hour that marital rape is criminalised, under ‘Rape’ legally and Section 375 (Exception 2) of the Indian Penal Code, 1860 is eliminated.
Authored by- Nirzana Banikya, Guwahati, Assam.