Criminalizing marital rape in India

INDIAN PENAL CODE

Introduction
In our society, violence is bursting. It is present almost
everywhere and nowhere is this eruption more intense
than right behind the doors of our homes. Behind
closed doors of homes all across our country, people
are being tortured, beaten and killed. It is happening in
rural areas, towns, cities and in metropolitans as well.
It is crossing all social classes, genders, racial lines and
age groups. It is becoming a legacy being passed on
from one generation to another.
Rape
A 'rape' charge under the Section 375 Indian Penal
Code has two parts:
non-consensual penetration of any orifice (vagina,
anus, mouth, urethra) in a woman by a man, OR,
non-consensual touching of any orifice with the
mouth. This is not restricted to having sex. Forcing a
woman to do this to herself, or with someone else, is
also rape.
The court will decide that these acts are rape if:
It happens without her consent, or
She agrees, but only because she, or someone she knows is in
danger, or
She agrees, but because she thinks the accused person is her
husband, or
She agrees, but she is drugged, or drunk, or mentally ill, or
She is under 18 - then it does not matter if she agreed or not, or
She is in no position to indicate whether she agreed or not - for
example, if she is unconscious.
Consent has been clearly defined as a clear, voluntary
communication that the woman agrees to the specific sex act,
leaving no room for debate. It also makes it clear that absence of
physical injuries is immaterial for deciding consent.
Marital Rape
Exception 2 to Section 375 exempts unwilling sexual
intercourse between a husband and a wife over fifteen
years of age from Section 375’s definition of “rape”
and thus immunizes such acts from prosecution. 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 recognized as a
criminal offense in almost every country of the
world, India is one of the thirty-six countries that still
have not criminalized marital rape.
 VIOLATION OF THE FUNDAMENTAL
RIGHTS
Violation of Article 14 of the Indian
Constitution
Exception 2 violates the right to equality
enshrined in Article 14 insofar as it discriminates
against married women by denying them equal
protection from rape and sexual harassment. The
Exception creates two classes of women based on
their marital status and immunizes actions
perpetrated by men against their wives.
Violation of Article 21 of the Indian
Constitution
“right to life” envisaged in Article 21 is not merely
a right to exist.
Exception 2, which fails to deter husbands from
engaging in acts of forced sexual contact with their
wives, adversely affects the physical and mental
health of women and undermines their ability to
live with dignity.
Independent thought vs Union of India
 It violates the bodily integrity and reproductive choice
of the girl child and has no measures for trafficking of
a girl child. Therefore, it is being arbitrary and
discriminatory hindering the best interest of the girl
child.
 The issue before the Court is only of marital rape of
the girl who is below 18 years and not that of above 18
years
Conclusion
It has been concluded that Indian laws have failed to
provide a proper protection to women as earlier as the
women are still treated as the property of husband and
he has all the rights to exploit her and no remedies
have been provided. Though a husband’s violent and
non-consensual act of intercourse may entitle a wife to
bring an action for criminal assault, the incorporation
of the principal of liability for marital rape in our penal
laws is not present. This prima facie violates Article 14
and 21 of the Indian Constitution.