Marital Rapes: Raping wives not a crime in India, Judiciary needs to intervene

Section 375 gives an exception to marital rapes against women of 15 years or below

In India, a good percentage of marriages are arranged by the parents of the boy and the girl. The boy’s family often look for a good-looking girl, who can cook food and do all household chores. The girl’s family look for a boy who is earning well and has family property. So, the concept of love and understanding is often ignored in arrange marriages.

While some find compatibility with due course of time, others find it difficult to adjust with each other after the marriage. The situation worsens when a woman is trapped in an abusive and violent marriage. One very less-discussed challenge that women go through is marital rape. Yes, it is scary that women get raped inside their home by their own husband. Can you imagine the helplessness of that woman who can’t raise the voice against the cruelty she faces in her home because her perpetrator is none other than her own spouse!

In case the woman is living with the family of her husband, her in-laws support their son and his acts. Even her own parents ask her to adjust as they think that there is no such thing like marital rape. Surprisingly, marital rape is considered normal and natural in society. Very few want to talk about it. The consent of women is neglected almost every time. If the husband is in the mood, he will do it no matter what a woman wants. Marital rape is mostly accompanied by violence against the wife. This heartbreaking and pathetic story repeats in many Indian households.

The saddest part about marital rapes is that many women do not even know that they are being raped. The women are taught that when a man marries her, he has the right to do sexual intercourse anytime he wants. You would be surprised to know that India doesn’t consider marital rape a criminal offence.

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Marital rape is not a criminal offence

Section 375 of the Indian Penal Code (IPC) states that a man commits rape if he has sexual intercourse with a woman without her consent or if the girl is a minor. There is an exception in law which states that sexual intercourse by a man with his own wife without her consent is not rape, if the wife is not 15 or below 15 years of age. This means that Indian wives who are more than 15 years of age can be raped by Indian men.

In a landmark judgement, the Supreme Court in In Union of India vs Independent Thought case held that if a man has sexual intercourse with his wife if she is aged between 15 and 18 years of age without her consent, then it would be considered rape.

The Supreme Court had dismissed a petition of woman in 2015 on the ground that law shall not change for one woman. In another case, State of Bihar vs Arnesh Kumar, the apex court had observed that criminalizing marital rape would collapse the social and family systems.

What is to be understood is that the exception given in section 375 is not based on intelligible differentia as it solely relies on the basis of her marital status. It can be considered as a violation of the fundamental rights of equality, privacy and dignity of a woman.

We talked to Bomday High Court Lawyer, Advocate Niranjan regarding the issue. When asked if India needs a special law for marital rape, he said, “I personally do not feel any need to have a specific law relating to marital rape. Lots of women are already misusing the legal remedies available to them. Especially in cities. Making a separate law for marital rape will only make situation worse for husband. I personally say that rape committed by anyone shall be totally decided on physical evidence and not on the relation between the couple. If a wife can provide proof of rape then section 375 and 376 of IPC are enough to penalize the offender.”

While talking about how prevalent are marital rape cases, he said, “I haven’t seen any case of Marital rape till date because the wives are never able to show such evidence regarding rape. I have seen more domestic violence complaints as the wife can claim maintenance against the husband. Since they cannot claim maintenance if they file a complaint of rape against husband, therefore they do not file such complaints. Moreover especially in cities all marriage today happen when both are adults. Hence consent is not an issue here because with marriage it is assumed that both parties have consented to cohabit with each other and it includes having sexual intercourse with each other. I again reiterate that if the complainant is able to provide evidence or proof of rape then relationship between both the parties is totally unimportant.”

Laws that protect women against marital rapes

Women can file complaints of sexual offence by their husbands under Section 498A. The Protection of Women from Domestic Violence Act, 2005 also helps women in filing complaints against forced sexual activity without her will, even by her husband.

But the number of crimes against women indicates that these laws are not enough to protect women against marital rapes. Actually, India is one of the 36 countries in the world where marital rapes are not a criminal offence.

A research paper by Aashish Gupta said, the number of women who experienced sexual violence by husbands was 40 times higher than the number of women who faced sexual violence by non-known person. Less than 1 per cent of the sexual violence acts were reported to the police.

In another study, it was found out that 1 in 3 women in developing countries like India are raped by their husbands.

After the horrific incident of Nirbhaya 2012 Delhi rape case which shook the nation, a committee was formed under Justice J.S. Verma to strengthen the laws against sexual assault. The Verma Committee had recommended removing the exception of marital rape from Section 375. It also specified that marriage can’t be a defence against rape.

We as an organization where most of the workers are women, believe that whatever the logic, the exception of marital rapes from Section 375 is not justified. Marriage is no way a license for man to have sexual intercourse with her wife without her consent. Men of the country need to understand it and the judiciary needs to criminalize this.

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