This Article is written by Anchal Kushwah pursuing BBA.LL.B from ISBR Law College.
This article mainly highlights the loopholes in the law of marital rape pertaining of which several women have been suffering from so much of mental and physical agony. And, also it will highlight the evolution of cases of marital rape from 1890.
Humanity stands on two pillars, men and women both and they should have equal importance in each other’s life. Is this just exist in books or of words of a society? There are a number of people who don’t provide equal rights to either of them and especially to women. In most cases, women have been subjected to a lot of humiliation by men and society. Indeed, rape is one of the apt examples to prove their atrocities and outrage against the dignity of any woman. The offence of rape is one of the most gruesome and heinous crimes that anybody can commit. As we all know, from the ancient time women are considered as material of pleasure. Pertaining to which there subsist 3,78,277 cases which dealt with crimes against women across the country reported in the year 2018. We have so many other things to portray the poor condition of women across our country one of which is a patriarchal society and their framework to administer all the Indian families constantly and then considering a woman as a non-essential part of the family and never let them raise their voice whenever they feel any injustice in their family, because as per their sense when a women raise her voice for the justice it will bring shame to their family. In this article, the researcher has exemplified the exceptions which are enshrined under the S. 375 of Indian Penal Code pertaining to which all the cases under marital rape is a non-criminalized crime. In other words, this article will highlight the loopholes in the law structure as a result of which ‘marital rape is not a rape’. In this article, the researcher will also give some prominence on the impact of providing exceptions in S. 375 of Indian Penal Code.
EXCEPTION PROVIDED IN S. 375 OF IPC
The Indian Penal Code (‘IPC’) in §375 criminalizes the offence of rape. It is an expansive definition that includes both sexual intercourse and other sexual penetration such as oral sex within the definition of ‘rape’. Moreover, in Exception 2, it excludes the availability of this section in all those cases in which a sexual assault is dealt with between a husband and wife or any married couple. Thus, a wife under Indian law does not have any cause of action under criminal law if a husband rapes her.
1. So, the two Exceptions under the S.375 that were provided in our Indian law are as follows;
2. A medical procedure or intervention shall not constitute rape.
Sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape.
So basically, what our law says is that whatever offences have been committed by a husband to her wife during any sexual intercourse will not amount to any crime unless she is below 15 years of age, because he is married to her and got the privilege over her. Now, the question here is can a single knot of marriage be a sign of consensual sex with his wife for the rest of her life?
LACK OF LAWS AND ITS IMPACT ON SOCIETY
In May, 2016 then Union Minister, Maneka Gandhi had said that even if there was a law against marital rape or spousal rape, women will not stand up to report against it, doctors and counselors pointed out that Ms. Gandhi may not be the off mark, but that she missed the complete picture. Now before we confront the cases which could not get justice due to lack of laws let us put some limelight on the grievance of the issue. So, once there was a report released by Dilassa which states that after the counseling conducted by Sneha’s counseling Centre at KEM and Sion hospitals, out of 218 cases of domestic-violence in 2015, 64 of them were the cases of marital raped case. According to the National Health Family survey conducted in the year, 2015-16 83% of married women in India between the ages of 15 and 49 have accused their husbands of sexual violence while 7% have called the former husband a perpetrator.
Further, in 2017, the better India reported that India is one of the 36 countries where marital rape is not a criminal offence.
In the case of Queen-Empress versus Haree Mohan Maiti in 1890, basically, it was a case of child marriage, and then later on in 1899, it became a very first case of marital rape when a 10- year old girl Phulmani Das was found dead. Since the age of the consent was 10 then and also the sex with a wife was not considered as rape under the exception of S.375 which defines rape, therefore, Calcutta Session Court sentenced the husband with just 12 months of hard labor.
Later on, what happened in some cases was worse than anything. In the case of Harvinder Kaur versus Harmnder Singh in 1984, the Delhi High Court stated that the Constitution could not interfere in a household matter because it would destroy the institution of marriage. Adding to this the Court also said that in the privacy of the home and marriage neither Article 21 nor Article 14 plays any role. Isn’t it so unjust with all the women who are facing so many issues in their house, because the reason that the court had given is completely baseless? Moreover, Article 21 enshrined us with the Right to life with Dignity, then where is that dignity that every woman deserves?
There was a case in which a 22-year old woman was forced for sex and later she was also doused with kerosene, and when she went to the police station she has given all our statement but still the police did not do anything because they do not know what to do when a woman filed a case under marital rape.
So concluding all the above cases it becomes so evident that due to lack of laws how women were so helpless and couldn’t file a complaint about their sake even if they want to.
EVOLUTION OF THE MARITAL RAPE LAW
The very first change that had to occur in the Indian history in the case of marital rape was in the year 1892 by Lord Lansdowne, then viceroy of India, who presented a Bill in the council of India. The Bill was passed and the age for giving consent was increased from 10 to 12 years. Though, the criminalization of that offence still did not happen.
“In the Bodhisattwa Gautam versus Subhra Chakraborty case of 1995, the Supreme Court ruled out that rape violates Article 21 of the Constitution as it hampered basic human rights and ruptured the victim’s right to life and dignity”. Now Article 21 enshrine us to live our lives with dignity which is violated so many times including during non-consensual sex with a man though he is your husband.
After the Nirbhaya rape case, 2012 the Verma Committee recommended criminalizes the marital rape by saying that marriage is not a mere means of irrevocable consent for any sexual acts.
But then again, it wasn’t easy for our country to fight for this law it has so many ups and downs and various eminent persons have differences of opinions. As in the year 2016, Maneka Gandhi then minister of Women and Child Development pronounces that the ‘concept of marital rape’ which was understood internationally will not be accepted in India due to the level of illiteracy and poverty. However, in 2017 in the case of Independent Thought versus Union of India, Hon’ble Supreme court ruled out that rape with a girl below 18 years of age will be considered as rape regardless of her marital status.
In 2019 when Mr, Shashi Tharoor, Member of the Parliament was introducing a bill, The Women’s Sexual Reproductive and Menstrual Rights Bill 2018, he stated that marital rape is not about sex but violence, it is not about marriage but lack of consent. So, with such a statement, it becomes a bit easy for our country to think about the laws related to marital rape because Mr. Shashi Tharoor has explained a very significant perspective in simple two sentences.
Coming to the conclusion, there must be various people who might be thinking that what was the reason for the researcher to highlight all these loopholes in the law structure. So, the reason behind all these efforts is to vocalize all those cases which were hardly heard ever and what we saw in these many years will not repeat by taking a lesson from our past we might improve our future. The researcher doesn’t want any more women to go through this physical pain and mental trauma. The exemption which is provided in our law gives a perfect shelter for all those who perform these heinous crimes against their wives. I don’t know what is holding our government back to make marital rape a crime because rape can be against anyone, any gender, at any age. Then why is this age acting as a barrier to check whether it is a rape or not? Now, as we come to closure it has become quite obvious that we should remove the exemption from S.375 of IPC and criminalize this crime with a harsh punishment to safeguard the rights, freedom, and dignity of a woman.
Keerthi Krishna and Krati Purwar, Marital rape in India, ACJ
Raveena Rao Kallakuru & Pradyumna Soni, Criminalization Of Marital Rape In India: Understanding Its Constitutional, Cultural And Legal Impact, NUJS L Rev,1 920180
Roli Srivastava, Marital rape: the statistics show how real it is, IST Rev September 2016,
The Indian Penal Code, 1860, §375 as amended by the Criminal Law Amendment Act, 2013.