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Rape is a brutal expression of violence perpetrated against women. Non-consensual sex in which the perpetrator is the victim’s spouse is known as marital rape. Marital rape is addressed along the branches of domestic violence and sexual abuse. 

Background

The Indian Penal Code dates back to the Victorian era. As India was a British colony, all the Indian laws sanctioned at that point were acutely influenced by the English Laws & Victorian standards. Hence, the marital acceptance of rape was also drawn on the groundwork of the Victorian era’s stern patriarchal norms.  The foundation for the defence of marital rape was laid by famed 17th century Jurist, Sir Matthew Hale in ‘The History of the Pleas of the Crown,’ 1736. He expressed that, “the husband of a woman cannot himself be guilty of an actual rape upon his wife, on account of the matrimonial consent which she has given, and which she cannot retract.” Thereby implying that the contract of marriage was synonymous with irrevocable consent to sexual relations. This logic was from the perspective of the then-existing Coverture Law. Under this law, women were seen merely as the chattel of their husbands & their legal status in marriage was viewed as sub-par. The married woman was not viewed as an independent individual with constitutional rights and her identity was merged with the identity of the spouse.

Owing to this, the Implied Consent Theory of Sir Matthew Hale landed its way into the legal system of all erstwhile British colonies that had adopted a common legal system. As a result, Lord Macaulay sanctioned an exemption for a husband raping his wife, while drafting the IPC in the nineteenth century. Later, Britain and most of its former colonies have recognized that marriage does not imply consent to sexual relations & consequently have legislatively abrogated the marital rape immunity by condemning & criminalizing marital rape. India continues to uphold this colonial regression.

Rape Laws in India

Section 375 of the Indian Penal Code defines rape and also makes an exception for marital rape by stating that, “Sexual intercourse by a man with his wife, the wife not being under eighteen years of age, is not rape.” Section 375 got amended through the case of Independent Thought vs. Union of India on 11 October 2017. The court had to bring the marital rape exception from the previous 15 to 18 years of age so that it conforms with the Protection of Children from Sexual Offences Act, POSCO 2012.

The Section 376B of the Indian Penal Code outlines the punishment for sexual intercourse by husband upon his wife during separation procured by a legal decree. Section 376B states that “Whoever has sexual intercourse with his wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.”

In 2005, the Protection of Women from Domestic Violence Act was passed. Under this act, if a woman has undergone marital rape she can go to the court and obtain judicial separation from her husband.

Conflict with the Law

The laws dealing with marital rape are paradoxical and trifling compared to the gravity of the crime. Although the Constitution ensures equality to all by its Article 14, the Indian criminal law continues to discriminate against female victims who have been raped by their husbands. Section 375 allows that a wife who is above the age of 18 if raped by his husband is not concluded as rape, and provides her with no lawful security. Furthermore, even though Section 376B addresses the concerns and fears of women living separately from their husbands, it doesn’t provide equal justice to a woman who suffers from sexual indignities despite separation. Similarly, the Protection of Women from Domestic Violence Act, 2005, although does not consider marital rape as a crime, considers it a form of domestic violence. Taking into account these fundamental limitations, it can be concluded that the law is flawed and needs to be amended accordingly.

Conclusion

An act committed against an unmarried girl to become an offence and the same act committed against a married woman to not become an offence are not reasonable legislations. There have been protestations against this view, yet the act of marital rape is not criminalized and is not even acknowledged as a crime. The judiciary appears to have consigned that rape inside a marriage is impossible as marriage in its own implies consent. This undoubtedly establishes that in our society, marriage is neither sacred nor sacrament but rather a socially endorsed form of sexual slavery. This shakes the piety and sanctity of marriage, yet the judiciary seems to hold a different opinion. However, it is pertinent to note that because there is a legal association between the aggressor and the victim; it does not diminish the magnitude of the crime. Therefore, the crime must be handled with the utmost severity, and that it should now exist de jure and not de facto.

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