Marital Rape – UPSC GS1

What is Section 375 in The Indian Penal Code?
It defines rape. It has an exception which says Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
NGO, RTI Foundation filed a plea before Delhi High Court:
  • Strike down the exception under Section 375 (rape) of the IPC, which does not penalize sexual intercourse between a man and his wife if she is over 15 years of age.
  • Such an exception would be against the interest of married women as it is violative of Article 14 (equality under law) and 21 (right to life) of the Constitution. 
Centre’s response:
  • If marital rape is recognized as a crime then it would
    • Destabilize the institution of marriage, apart from being an easy tool for harassing husbands.
    • The courts too would find it difficult to rely upon evidence in such circumstances as there could be “no lasting evidence in case of sexual acts between a man and his own wife”.
Exemption of Marital Rape in India:
  • The notion that marriage constitutes a contract, which includes the woman’s irrevocable consent to sex
  • A woman is the property of her husband, and rape is a violation of a man’s property rather than a crime against women
  • After marriage, a woman’s identity becomes part of her husband’s.
  • The Indian government has consistently resisted a change in the law.
  • Even after 2012 Delhi gang rape case that resulted in in an amendment to the criminal legislation in India, including the definition and punishment of rape. The exemption of marital rape was retained, despite recommendations by the Justice Verma committee.
  • According to lawmakers if marital rape is brought under the law, the entire family system will be under great stress.
  • Recently Delhi High Court has been hearing petitions seeking the inclusion of marital rape under the existing rape law.
  • This has been rejected by the government on the grounds that it will be used to harass men and will affect the institution of marriage.
Current scenario in USA
  • In USA marital rape is treated differently from other forms of rape.
  • Although all 50 states had enacted laws against marital rape by 1993, almost half the States still treat it differently from rape outside of marriage.
  • In some states, marital rape is a chargeable offence only if the perpetrator uses or threatens to use physical force.
  • Proof of marriage is often an easy way to reduce or mitigate the consequences of the offence.
  • These kinds of legal distinctions legitimise the perception among law-enforcement agencies that cases of marital rape should be treated as less serious than rape outside of marriage.
It is argued that the concept of marital rape is not suitable in the Indian context due to illiteracy, poverty, social customs, values, religious beliefs, and other factors. Do you agree with this view? Critically comment. (200 Words)
Marriage is considered as a sacred institution in India, this seems to be the primary argument as to why the lawmakers don’t include marital rape under the heading of rape as mentioned in section 375 of IPC. It has been argued that it is not possible to acknowledge marital rape as a crime due to illiteracy, poverty, social customs, values and religious belief. Such factors actually make the case for marital rape stronger.
Marital rape should be criminalized though India laws as:
  1. It deprives women right to say no.
  2. It allows sexual and physical abuse of women in disguise.
  3. It allows rapes under the veil of marriages which are termed as sacred and sacrosanct in India.
  4. Women are compelled to remain silent and suffer endlessly due to society and culture.
  5. It strengthens the fact that husband cannot be a rapist.
  6. It tacitly promotes patriarchal society where women rights and consent are ignored.
  7. Its ban will help in empowerment of women in the society and help in reducing high suicide rates among Indian housewives.
  8. Banning it will bring India in line with international laws.
However, there are some challenges such as :
  1. It will be tough to prove marital rape. There can be some cases where women could use it wrongfully against their husbands.
  2. Deep rooted social and cultural values regarding marriage.
As Justice Verma Committee has recommended in its report, relationship between the victim and accused should not be relevant in cases of rape. The government should consider bring marital rape within the ambit of IPC, and should not differentiate between rape outside marriage and within marriage .It should implement the laws with due diligence and safeguards so that the false cases or cases when sex with consent doesn’t lead to harassment of honest people.
  • Right to bodily integrity
  • Self determination
  • Justice Verma Committee
  • IPC Section 375

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