Introduction

What is Rape?
IPC has defined Rape under Section 375 sexual intercourse with a
woman against her will, without her consent, by coercion,
misrepresentation or fraud or at a time when she has been intoxicated or
duped, or is of unsound mental health and in any case if she is under 18
years of age, under the circumstances falling under any of the following
seven descriptions:
 Against her will and Without her consent,
 With consent obtained under fear of death or hurt,
 With consent given under misconception of the fact that the man is
her husband but the man knows that he is not her husband,
 Consent given because of unsoundness of mind, intoxication, or
under influence of any stupefying or unwholesome substance,
 With a woman under 18 years of age with or without consent.
What is Marital Rape?
Marital rape is the act of sexual intercourse with one's spouse without
the spouse's consent. The lack of consent is the essential element and
need not involve physical violence. Marital rape is not an offence in
India. Section 375, the provision of rape in IPC, mentions as its
exception clause- “Sexual intercourse by man with his own wife, the
wife not being under 15 years of age, is not 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.

Laws related to Marital Rape in India

 India doesn’t consider marital rape a crime yet, but it has an
exception in the IPC under Section 375, a man who has intercourse
with his wife who is above the age of 15 years is not considered as
raped by her husband. While intercourse with a separated wife is
considered as rape and such a person shall be punished up to 7
years of imprisonment under a separate law.

According to Doctrine of Coverture, a woman had no independent

legal identity of her own after marriage. Her identity was merged
with that of her husband and all her property was passed on to him.

Section 375 of IPC (1870), heavily influenced by these doctrines,

continue to work on such weaker sex notions of women.
Recently, the Kerala High Court allowed 'marital rape' as valid
ground for divorce. The combined message of these efforts is to assert
that women have an identity and agency of their own. Being in a marital
relationship cannot be used as a cover to violate the same.

Reasons why marital rape should be

criminalized in India
There are plenty of reasons why this immunity requires a relook
today:
1. Violation of Fundamental Rights
Marital rape is a direct assault of women's right to life with dignity
(Article 21). Forcing a woman for sex and inflicting violence on
her, is a blatant breach of her dignity. It is also a cruel suppression
of her dissent. Marital rape also violates the right to equality
enshrined under Article 14. The notion that consent for marriage
denotes 'consent in perpetuity', imposes undue coercion on women.

2. Inconsistency in Law
In the Chhattisgarh High Court, a wife framed multiple charges on
her husband. This included charges under Section 376, Section 377
and Section 498A. The Court bound by law had to dismiss the
husband on the ground of Exception 2 to Section 375.

3. Impact on women's health and psychology

Cases of marital rape are mostly driven by the husband's low self-
esteem, unemployment, urge to assert power, alcoholism, etc.
Marital rape causes immense physical pain as it is nothing but a
sexual assault.

4. Government's Stance
Today people are more aware of the atrocities associated with
marital rape. Despite this, the government of India has shown
repeated reluctance in criminalizing it.
In the Independent Thought v. Union of India Case (2017) also, the
government defended the marital rape exception. The government
argued that criminalizing marital rape is 'against the institution of
marriage'. It is against Indian culture and will destabilize the whole
institution of marriage. However, the judgment by the Supreme
Court in the case cleared the mist of misogyny hovering over the
government.

Conclusion

The Indian law has clearly failed to provide proper protection to

women as they are still being treated as property of the husband
and he has all the rights to utilize her. The topic of marital rape is
crucial in establishing equality for married women. It is high time
that the Government of India uproots the norm of marital rape
immunity. It is a long-overdue decision for making homes safer for
women. In fact, criminalizing marital rape is a necessity for India
to progress towards a more equal and humane society

- By Yashi
(yashikumari.yk@gmail.co
m)