Marital rape is the act of having sexual intercourse with one’s spouse without consent of the spouse. Where most of the developed countries have long criminalized marital rape, it still struggles to find a place in the coveted Indian Penal Code. In fact a majority of marital rape cases go unreported in India. Section 375 of IPC which defines rape confers complete immunity to a husband who indulges in sexual intercourse with his own wife without her consent, if she is above the age of 15 years. The apex court recently, in the case Independent Thought v. Union of India, stated that marital rape cannot be considered as a criminal offence. The following are some explanations given by various judicial personalities to defend material rape.
Historically, many cultures have had the concept of spouses’ conjugal rights to sexual intercourse with each other. This is widely prevalent in our country to an extent that impotency is a valid ground for divorce under the Hindu Marriage Act. These arguments stand in the way of marital rape being declared a criminal offence. More emphasis is laid on saving the institution of marriage.
There are some remedies available to women like in majority of the cases where women undergo physical and mental abuse along with sexual abuse, they can seek help under the Domestic Violence Act 2005, and cruelty being a ground for divorce under the Hindu Marriage Act, 1955, women may also seek divorce. In both these laws, horizon of the word ‘cruelty’ has been widened.
Since in marital rape, consent is the only deciding factor, it becomes highly cumbersome to ascertain whether the act was forceful or not especially if it is not coupled with other forms of abuse. Wide misuse of 498-A has forced the courts to rethink applicability of the law. As a result, the Supreme Court has ordered that such cases be verified before charges are pressed under the Indian Penal Code (IPC) against the husband and his relatives. Hence criminalization of marital rape is being viewed as another lethal weapon in the hands of women.
But none of these factors is sufficient to justify the tormented position of women. Bertrand Russell in his book ‘Marriage and Morals’ wrote, “Total amount of undesired sex endured by women is probably greater in marriage than in prostitution.” This is majorly a result of the legal lacunae. Although legal age, both, to give consent for intercourse and to get married is 18 years for girls in India however child marriage is still not void in India nor has the age of engaging in sexual intercourse in marriage been increased to 18 years.
This discrepancy puts girls between the ages of 15 to 18, who are married, in a legal vacuum, where they are unprotected by law from intrusive sexual intercourse. Moreover, the Protection of Children from Sexual Offences Act, 2012 (POSCO) states that a girl under the age of 18 years is a child and hence, does not have the physical, emotional or mental capacities to take an informed decision about engaging in sexual intercourse. Therefore, first the child marriage must be declared void ab initio and the age of engaging in sexual intercourse in marriage for girls must be increased to 18 years, only then will it be expedient to criminalize the offence.
About the Author:
Imaan Singh Khara
3rd Year, BALLB(Hons.), UILS, PU