MARTIAL RAPE IN INDIA
Written by Preethi
“Marriage should not be considered as a licence for a man to rape his wife.”
The definition of rape codified in Section 375 of the Indian Penal Code (“IPC”) as any form of sexual assault that involves nonconsensual intercourse with a woman. Exception 2 to Section 375, on the other contrary, exempts unwilling sexual intercourse between a husband and a wife above the age of fifteen from Section 375's definition of "rape," and so immunizes such actions from. As per current law, a wife is presumed to deliver perpetual consent to have sex with her husband after entering into marital relations. While unwilling sexual contact between a husband and a wife is a crime in nearly every country,India is one of the thirty-six countries that still have not criminalized marital rape.
However,The United Nations Declaration on the Elimination of Violence Against Women , defines violence against women as "any act of gender-based violence that results in, or is likely to result in, physical, sexual, or mental harm or suffering to women, including threats of such acts, coercion, or arbitrary deprivation of liberty, whether occurring in public or private life." Section 375 (Exception) of the Indian Penal Code is incompatible with and violates these principles, as well as Article 1 of CEDAW.
The Supreme Court of India and various High Courts are now inundated with writ petitions contesting the validity of this exemption, and the Supreme Court recently criminalised unwilling sexual contact with a wife between the ages of fifteen and eighteen in a landmark judgment.This judgment has culminated in a rise in the number of writs challenging the constitutionality of Exception 2 as a whole. In light of recent litigation, this Article examines the legality of the Exception.
The concept of marital rape in India is the epitome of what we call an “implied consent”.
Domestic violence in India has only been exacerbated in recent years and has remained a firm concern. In India, over 70 percent of women suffer spousal abuse. Crime in India's 2019 Report of the National Crime Records Bureau (NCRB) was unnerving but not startling.As stated in the research, a woman in India gets raped every 16 minutes and every four minutes, she experiences cruelty at the hands of her in-laws. A 2015-16 NFHS research reveals that an estimated 99.1% of incidents of sexual violence go unreported and the average woman who is Indian is 17 times as likely to be sexually abused by her husband than by the others.Despite the recent criminal law reforms, certain legislation aimed at protecting women from domestic and sexual abuse remain mostly ineffectual.
Rape is rape, regardless of the perpetrator's identity or the survivor's age.
A woman who is raped by a stranger lives with the trauma of the assault; a woman who is raped by her husband lives with the rapist.
Even after 73 years of independence, our criminal rules, which were handed down from the British, have largely stayed unaltered. However, English law has been modified, and marital rape was become a crime in 1991. However, no Indian administration has taken an active interest in resolving this issue thus far.