MARITAL RAPE

INTRODUCTION

Rape in a marriage is can petrify a person to the very core of their existence. This is so because the heinous act of rape is committed by none other than the spouse, and this can thus affect the mental health of the victim. The act does not only affect the mental health but also is a danger to her physical health, like transmitted infections such as HIV/AIDS, unintended pregnancies, induced abortions, and adverse pregnancy effects, including miscarriage, low birth weight and fetal death.

Under Section 375 of the Indian Penal Code,1860, the act of rape has been defined as forceful sexual intercourse by a man against the will of the woman. But under the exception 2 of the same section, protection from any sort of criminal liability is granted to a husband having forceful sexual intercourse with his wife who is above the age of 15 years. Thus, consent for sexual intercourse with a wife above the age of 15 years has been rendered immaterial and hence, the act of marital rape has not been recognised by the Indian Penal Code, 1860.

However, there have been some positive developments regarding the criminalisation of such activities. Such as –

Section 376A of the Indian Penal Code, 1860- the rape of a judicially separated wife has been declared a criminal offence with the husband being subjected to fine and imprisonment for a maximum of 2 years.

The criminalization of marital rape was also a suggestion which was made by the Verma Committee which had also suggested many amendments to the sexual assault laws of the country.

In the 42nd Report by Law Commission, it was advised that criminal liability must be attached for the acts of marital rape which is done by a man on his minor wife. This recommendation was refused stating that a man cannot be held guilty for raping his very own wife irrespective of the age as sexual intercourse between the spouses in a marriage is a part and parcel of the marriage.

This technicality was again challenged in the court, in the case Independent Thoughts v. Union of India, it was observed that the exception 2 of Section 375 includes minor girls from the age of 15-18 years. It was held by the court that this provision is a violative of child rights as well as Article 14,15 and 21 of the Constitution. It was also observed that the provision was also in contravention of the provisions laid down in the POCSO act. Thus, the court amended the section and raised the age to 18 years by stating “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age will not be rape”. But the court maintained its silence for criminalizing marital rape nor did it give any directive for adult women who are subjected to marital rape.

Protection of Women from Domestic Violence act, 2005

It contains civil remedies for violence against women. Under this, marital rape is considered as a type of local violence. Under the provisions of this act, a woman can go to the court and get legal partition if she has been subjected to marital rape. Thus, making it a valid ground of divorce.

Article 1 and Article 2(a) of Declaration on the Elimination of Violence against Women, 1993 and subsequently 1995 Beijing Declaration and Platform for Action, demanded the member states to criminalize the act of marital rape by stating that sexual violence against partners or spouses is a violation of fundamental human rights and it undermines the enjoyment of all other rights facilitated to them.

Conclusion and Suggestions

Criminalizing marital rape would be the first step to send a very strong signal to condemn all kinds sexual violence which are faced by women and also ensuring that the woman’s fundamental as well as human rights are being uplifted by doing the same.

The criminalization of this offence would only be a primary step as the women who have been a victim to this face many social, cultural as well as legal barriers, hence the broader strategy to combat marital rape has to go beyond criminalization of the offence and should include public education, awareness programs, sensitisation programs, making available the victim services etc. This won’t be the end but will definitely start a process of positive change by helping in improving the condition of women in the society.

FAQs-

1) What all articles of the Constitution does the non-criminalisation of marital rape violate?

Ans. It is said to violate article 14- the right to equality and Article 21- the right to life of the Constitution of India.

2) Is rape in a live-in relationship criminalised?

Ans. Yes, the exception 2 only includes married women and not the women who unmarried.

[The author, Rishi Nandy is a 2nd year law student at Vivekanada Institute of Professional Studies, GGSIPU]

• Independent Thoughts v. Union of India,W.P. (C) No.284/2015
• The UN Declaration on the Elimination of Violence Against Women, GA Res. 48/104, arts. 1-2 (Dec. 20, 1993)
• World Conference on Women, Report of the Fourth World Conference on Women, paras. 118, 124(c,h) UN Doc. A/CONF.177/20/Rev.1 (Sept. 4-15, 1996).