Marital Rape !! That sounds terrible right...Well, it's still a reality for many...
This fact raises concerns about gender equality, human rights, and the urgent need for legal reforms to protect victims and ensure justice.
So why still it is legal in India....What are the challenges of criminalizing marital rape?
The Phulmoni Dasi Rape case
CASE NAME - Queen Empress v. Hari Mohan Maiti
A 10-year girl named phulmoni dasi who was married to a 30-year-old husband named Hari Mohan Maiti. The husband tried to consumate after marriage, resulting in the girl's death.
It was the first marital rape case and child marriage filed in 1889 which ultimately led to the death of an innocent girl who was unaware of the cruel intentions of the world. And the worst part was that the husband was found not guilty because Laws on rape did not include marital rape.
The Indian Constitution defines Rape as an offense under Section 375 of the Indian Penal Code. " Sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped or is of unsound mental health in any case if she is under 18 years of age"
IPC Section 376 provides the punishment of rape - it states that if anyone commits rape then he shall be imprisoned for not less than 7 years but can be extended up to imprisonment of 10 years and shall be liable to fine; unless the woman is his wife.
However, under the exception, a Sexual act by a man with his wife not under the age of 15 years, with her consent or not, is not rape.
In 2017, When some NGOs filed a petition saying that this provision is wrong somewhere because according to the Indian Child Marriage Law " The Ideal Age for the marriage of a girl is 18 years ", Then how can a minor is allowed to marry.
The Sc judgment" Thought v. UOI " had changed the '15 years' in exception to '18 years'.
Global Perspective of Marital Rape
Many Countries like the Soviet Union, Sweden, Denmark, USA, UK, Canada, South Africa, Sweden, Australia has criminalized marital rape considering it a violation of human right.
In Soviet Union: Soviet Union was one of the early countries to pass legalization for marital rape in 1922.
In the United States: All 50 states have criminalized marital rape. Since, Consent is a fundamental Aspect, and the legal framework treats marital rape similarly to non-marital rape.
In UK: Marital rape was criminalized in 1991. The Sexual Offences Act of 2003 recognizes that consent is necessary irrespective of a marital relationship.
Out of 185 countries, 77 countries have recognized marital rape as a criminal offence.
While some countries have criminalized marital rape as a violation of human rights, many others have not taken sufficient steps to address this issue. The global perspective on marital rape is a complex and evolving one, with different countries having different legal frameworks and cultural attitudes toward the issue.
The situation of Marital Rape in India
India is a country with the largest democracy yet marital rape is not criminalized under Indian law.
Rape is a Rape regardless of marriage, gender, or situation. Consent is a must whether it is from anyone including your partner to whom are u married with.
The exception of marital rape became a part of IPC in 1860 When Lord Macaulay justified that it is necessary to protect the "conjugal rights" of a husband.
In 2000, the Law Commission Of India rejected the idea to remove this exception, saying that this couldn't be deleted since it may interfere with marital relationships.
After, the Nirbhaya Rape case in 2012, A Justice JS Verma Committee was formed and they proposed for the deletion of this Exception. But it was not accepted by the parliamentary panel in 2013.
In 2015, Minister of Home Affairs, Haribhai Parathibhai Chaudhary said "Marital Rape cannot be applied in this country since marriage is treated as Sacred in Indian Society."
In 2021, Kerala High Court ruled 'marital rape as a valid ground for Divorce.' Treating your female partner's body as something owed to the husband and engaging in sexual acts against her consent or will is nothing more than marital rape.
Soon after in May 2022, in Delhi High Court, Rajiv Shakdher held that Exception 2 of section 375 violates Article 14,15,21 of the Constitution and must be struck down.
Opinion on Legalisation of Marital Rape
Well, I think awareness is more important than just criminalizing or making an a law in this matter.
Because at the end it will just be the another law made in the Indian Constitution. What....? Even after criminalising marital rape will it solve the problem. Will it change the thinking of people? What is the Assurance that this law will be successful, unlike dowry law.
All should be aware of how people miss used the dowry law. There will be high chance that this law will also be misused.
The misuse of the Dowry law in India is attributed to several reasons, such as greed, vengeance, and false allegations. In many cases, women or their families file false dowry cases to extract money or property from the groom's family.
So instead of fighting for criminalising of this matter we should spread awareness to the women out there. That they are capable of fighting for themselves if needed. And a No means No she doesn't have to suffer just because she is binded by marriage.
Until Next time,
KC :)