“I say nothing, not one word, from beginning to end, and neither does he. If it were lawful for a woman to hate her husband, I would hate him as a rapist.” –Philippa Gregory

Rape:

The most habitual crime against Women in Indian Society. The most habitual crime that is defined under section 375 of the Indian Penal Code, 1860 as a heinous crime against women’s gender. Surprisingly, it is the only crime where the victim turns to be accused. Although the concept of Rape seems well defined under this section, exception 2 to this section has made people believe that marriage is nothing but a sexual contract between spouses. The exception states, “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”.

The term Marital Rape is not defined in the Indian Penal Code, thus making non-consensual intercourse between the spouses legal. Even if the spouses are tied by this sacred knot of Marriage, where both of them vow in front of each other and trust them with their lives, it has also become a universal license to ignore consent.

It’s quite ironic that we safeguard minors from Child Marriage whereas, on the other hand, legalise non-consensual intercourse by the husband with his wife. As well said, “Any tree with a poisoned root provides a poisoned fruit, similarly, a rape either before or after marriage is termed to be rape”. It was argued that criminalizing Marital Rape will “destabilise the institution of marriage and become a tool for harassment of husbands.”

The NGO RIT Foundation first petitioned the Delhi High Court in 2015, challenging the legality of the “marriage exception.” Currently, The Delhi high court is hearing whether the marriage exception to Section 375 (Exception 2) of the Indian Penal Code should be dismissed so that married women would have a legal remedy if they are coerced into sexual intercourse by their husbands. The legal stance, as well as the Centre’s, has been that consent is presumed and on-going for the life of a woman’s marriage, meaning that consent does not need to be discussed before each marital sexual contact.

On March 1, 2020, The Chief Justice of India, SA Bobde while hearing a bail request of a government servant accused of raping a minor girl said, “If you want to marry we can help you. If not, you lose your job and go to jail. You seduced the girl, raped her,” It’s miserable to see that settlement for such a diabolical crime is ‘MARRIAGE’. In a recent case, The Supreme Court of India stays arrest of a man where the man was accused of raping a woman he was in a relationship with her for two years. The Supreme Court said,”… however brutal the husband is… when two people (are) living as husband and wife… can sexual intercourse between them be called rape?”

The most crucial point before the court is how “consent” may be defined, especially in marriages when there is “implied consent” and “expectation of conjugal sexual interaction.” The justices also pointed out that there is a discrepancy between the “right to have sex” and the “reasonable expectation of sex,” but that the concept of consent within a married relationship must be taken into account.

The fact that it’s a rape remains unchanged regardless of the perpetrator’s identification or the victim’s age. It is high time for people to realize that it is not just the purpose that must be considered, but also the ‘CONSENT.’ Imagine a woman being raped by her husband and having to sleep in the same house and on the same bed with her rapist for the rest of her life.

Marital Rape is certainly a genuine type of wrongdoing against women and deserving of the Court’s intervention, it’s an intricate issue with layers of many legal complexities. In 2013, the JS Verma Committee proposed a draft of law modifications to offences of sexual assault against women and, said that the exception to marital rape should be removed.

It now remains to see how the Court will interpret the issue in accordance with the societal change criminalizing Marital Rape will bring about.

BY

Yashashree Raut
3rd Year B.A LLB
ILS LAW COLLEGE, Pune