Friday, 4 February 2022

Marital Rape - Rape by husband is not Rape?

             Marital Rape - Rape by husband is not Rape?

Does Marriage in India mean handing over a never-ending, irrevocable and perpetual consent to her husband that should only be revoked till death does them apart? Does Marriage give the husband right to rape his wife? Or criminalizing Marital Rape will lead to misuse of the law? Marital rape is not considered rape in India. Exception to Section 375 of The Indian Penal Code gives the husband Immunity to rape his wife. According to this exception, India’s Rape Laws don’t apply if a man rapes his wife.

                       Rape in a Lay man’s language means to have sexual intercourse without the consent of the woman however he can be excused if he is her husband. Seemingly, “NO” in a marriage life does not mean “NO”. Let’s first know what rape is. The Section 375 of the Indian Penal Code defines Rape. Under section 375 of IPC rape is defined as,” Sexual Intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud 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.” Exception to this Law is that, “Sexual Intercourse a man with his own wife, the wife not being under 15 years of age is not Rape.” The 15 years age was increase to 18 years. This means that a women can be sexually assaulted and raped but not by his husband.

                       This exception bought a lot of spotlights and questioned the constitutionality of this law. Delhi High Court continued hearing petitions challenging exception to sec 375 of Indian Penal Code. A bench compromising justice Rajiv Shakdher and Justice C Hari Shankar heard advocate Karuna Nundy on Monday. The court discussed the possible reasons for exception of this Law. The latest decision by the Chhattisgarh High Court was found atrocious by many people. After all, the learned Chhattisgarh High Court judge NK Chandravanshi was only quoting from the law of the land when he cleared a man, accused of raping his wife, with the verdict that sexual intercourse by a man with his wife is not rape - even if it is by force or against her wish. It was alleged that Exception to section 375 violates the most fundamental right; Right to privacy.

                    Delhi government said that the law does not leave a women remediless pursuant to forced sex intercourse by her husband. Opposing to the petition, the Delhi government said that Divorce was a remedy available for women against Marital Rape. It was added that non-criminalization of Marital Rape doesn’t compel wife to have sexual intercourse. The Counsel added that exception to Section 375 of the Indian Penal Code does not violate the right to privacy, dignity of married women. 

                There were further more petitions claiming that the exception to section 375 of IPC violates the rights of a married woman under Article 21 of the Indian Constitution. Advocate Rajsekhar Rao, Amicus Curiae in High Court supported striking down of exception. He added that the exception for Marital Rape was based on an outdated concept of marriage presuming consent. The justice observed that a woman has a right to sexual autonomy and to deny any sexual advances, even if by her husband. 

                However, the executive and the legislature have not been very different from the judiciary. Marital rape has been criminalized in more than 100 countries. But India stands tall in the luminous league of about 32 countries where marital rape is not criminalized. Pakistan, Bangladesh, Afghanistan, Botswana, Iran, Nigeria and Libya are some of the esteemed members of this extraordinary league.  

               In 2018, a private Bill called the Women's Sexual, Reproductive and Menstrual Rights Bill, 2018, introduced by Congress MP Shashi Tharoor in the Lok Sabha, sought to criminalize marital rape. The bill lapsed after failure to garner support from the government. 

                Recently, there has been spotlight on crucial issues concerning consent, the extent of State control on female sexual autonomy, and correcting historical prejudicial laws. However, the cases are still going on. It is not yet decided to criminalize Marital Rape. 


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