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What is Marital Rape in India?
June 15, 2024The Delhi High Court delivered a split verdict on the contentious issue of criminalizing marital rape in India. This raises important questions about the rights and consent of married individuals. Since marital rape is not a crime according to Section 375(2) of the Indian Penal Code (IPC), 1860 , striking down the exception will result in making marital rape an offense. India is one of the few countries that does not treat non-consexual sex within marriage as rape. Let's delve into the concept of marital rape, its historical context, current legal status, and the available options for victims seeking justice.
What is Marital Rape?
Marital rape refers to non-consensual sexual intercourse or acts between spouses. It occurs when one spouse forces or coerces the other into engaging in sexual activities without their consent. It is a violation of an individual's bodily autonomy and personal rights within a marriage.
Legal context:
Section 375(2) of the Indian Penal Code (IPC), 1860, currently does not consider non-consensual sexual intercourse within marriage as rape. This section provides exceptions for sexual acts by a man with his wife and for medical procedure. However, striking down these exceptions would effectively classify marital rape as an offense, bringing India in line with international standards.
History of Marital Rape in India:
The issue of criminalizing marital rape has been a topic of debate in India for years. In 2000, the Law Commission of India did not consider removing the exception of marital rape when proposing reforms to sexual offense laws. Subsequent to Nirbhaya gang rape incident, Justice JS Verma led a committee which proposed amendments to India's rape laws. While certain suggestions were included in the Criminal Law (Amendment) Act of 2013, modifications to marital rape provisions were rejected and since 2017, the Delhi High Court has been reviewing arguments on this topic. However, criminalizing marital rape has already been discussed and debated extensively. When raised for discussion in Parliament in 2015, however, the idea was quickly shot down by then Home Minister and his argument that marital rape cannot be considered an offense due to India's culture surrounding marriage sanctity.
Reasons For Exemption and Colonial Influences:
The exception for marital rape can be traced back to colonial-era doctrines. The Indian Penal Code (IPC) of 1860, created during British colonial rule, is based on an 1847 draft by Lord Macaulay of the First Law Commission of India. An exception from rape charges initially applied only to girls over 10 years of age; later raised to 15 and further still 18 as per 1940 and 2017. Furthermore, marital rape exceptions reflect colonial-era doctrines:
1. The Hale Doctrine: Proposed by Matthew Hale in 1736, this doctrine states that a husband cannot be accused of raping his wife since her consent through marriage precludes such action from happening.
2. Doctrine of Coverture: This doctrine asserts that upon marriage, women lose their legal identity and merge it with that of their husband's, thus giving her no freedom of action against his will. These colonial legacies have had an influenceful role in shaping discussions regarding marital rape in India.
Status of Marital Rape Around The World:
India is among the few countries that have not criminalized marital rape. According to Amnesty International, 77 out of 185 countries address and criminalize marital rape. Some countries either explicitly exclude it or do not mention it in their laws. Globally, progress has been made in recognizing the rights of married individuals and protecting them from sexual violence within their marriages.
Legal Action Against Marital Rape in India:
Despite marital rape not being recognized as a standalone offense, there are legal avenues available for victims seeking justice. An aggrieved woman can take the following actions:
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File an FIR under Section 498A (Husband or relative of husband of a woman subjecting her to cruelty) of IPC , 1860 - A person convicted under this provision is liable to be imprisoned for a term that may extend to 3 years and with a fine,
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File an application under the Protection of Women from Domestic Violence (DV) Act, 2005 - The definition of domestic violence includes sexual abuse under Section 3 of the Act. The Act, however, provides only for civil remedies and provides for no way through which an aggrieved wife can initiate criminal proceedings against her husband.
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File a plea seeking divorce on the ground of cruelty under Section 13(1) of the Hindu Marriage Act (HMA), 1955.
Important Judgment:
In 2021, the Kerala High Court held that marital rape constitutes grounds for divorce, irrespective of its penal status in India. The court recognized marital rape as a form of physical and mental cruelty, emphasizing the importance of ending such relationships.
The Role of Lawyer:
Given the complexity and sensitivity of the issue, it is crucial for victims of marital rape to seek the assistance of an experienced divorce lawyer or criminal lawyer . The legal actions that are stated in this profile can be constituted with the help of a lawyer effectively. These professionals can provide guidance, navigate legal procedures, and support victims in pursuing their legal rights.
Conclusion:
Addressing the issue of marital rape is crucial for ensuring the rights and safety of individuals within marriages. While India has yet to criminalize marital rape, ongoing discussions and court proceedings bring hope for change. It is imperative to raise awareness, challenge archaic notions, and foster a society that prioritizes consent and respect within all relationships.
Greater Kailash - 1, Delhi
5 years
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