Breaking the Silence: Marital Rape in India
According to "Section 375 of the Indian Penal Code", having intercourse with one's spouse who is over
the age of fifteen is not considered rape, regardless of whether it is forced, against her choice, or without
her consent. However, if his wife is under fifteen years old, he faces legal repercussions for raping her.
Given the goal of this exception (to the exemption given to husbands from the crime of rape) which is
to protect the personal safety of married girls under a certain age from premature sexual intercourse
with their husbands with often disastrous consequences to themselves and with a grave risk of infant
mortality following in, it would seem that her consent would be immaterial in such cases.
Unfortunately, the "Joint Committee on the Indian Penal Code (Amendment) Bill, 1972" has taken the
position that sexual activity between a man and his own wife, regardless of the age of the woman,
should not be regarded as rape. This is contrary to the Law Commission's proposal that this activity be
removed from "Section 375" of the Code and made into a separate offence. As a result, the joint
committee removed the provisions of the proposed new section on rape in "clause 157" that dealt with
a man's sexual relations with his child wife.
It is clear that the joint committee has not carefully considered the justifications for the husband's
exemption from this crime, the evolving trend towards its abolition in the wake of the women's rights
movement in common law countries, or the position in this regard in civil law countries and socialist
countries around the world.
However, under current legislation, a husband is exempt from being charged with rape even if he
engages in forcible non-consensual sexual activity with his wife who has been living separately from
him, whether by consent of the parties or according to a judicial separation order. The marriage
technically continues in this situation. The Law Commission did not believe that this was appropriate.
It was thought that under certain situations, a man having intercourse with his wife without her will
should be punished as rape.
The addition of an additional explanation to the proposed section on rape to consider a woman living
apart from her husband pursuant to a decree of judicial separation and mutual agreement to be a woman
other than the man's wife for purposes of this section has been viewed favourably by the "Joint
Committee on the Indian Penal Code (Amendment) Bill, 1972". However, the joint committee has cut
the maximum sentence amount in this regard from seven years to just three.
The joint committee has
evaluated the husband's attitude in relation to this offence with partiality in this regard as well.
The fact that the husband is immune from being charged with the crime of rape does not mean that the
law views the wife as someone transformed into her husband's absolute property or as someone who is
not subject to the criminal code. The husband does not have the unrestricted right to take pleasure in his
wife's person without considering her safety, as would be the case, for instance, if the situation were
such that she would very certainly perish or that her life would be in risk.
Depending on the specifics of the case, such as the physical condition of the wife and the intention,
knowledge, level of haste or negligence with which he is shown to have acted on the occasion in
question, the husband may subject himself to any other criminal law provisions by his forcible act of
intercourse.
Arguments in favour of the exemption:
The most important is Matthew Hale's argument for implied consent. According to Byrne, J., the
Clarke
case's reasoning is that when a pair gets married, the wife consents to her spouse using their marital
right to have sex as long as their regular marital relations continue to exist. In these situations, the man's
marital right is maintained by the consent granted by the woman at the time of the engaement rather
than a willful consent supplied at the time of every single act of infidelity as maybe in the case of a non
married individual.
Notably, there is no source for the adage that marriage always entails permission to copulation outside
of the situation of rape. Furthermore, this justification cannot be consistently and logically applied to
deny a married woman legal protection against crimes other than rape that a husband may commit while
engaging in sexual intercourse. Even though this justification made sense at the time it was first put
forward, it conflicts with the accepted egalitarianism in sexual relations today.
It seems unfair to assume that a lady intended to make her physical being available to her husband
whenever he wants once they get married. By being married, she most likely suggests that she will
consent to having sex, but she also most likely believes that she can reject sex at any time (though not
for a continued period lest it amounts to cruelty). The husband and wife should both give their consent
before engaging in any sexual activity. This is because, in order for women to be treated equally as
marital partners, sexual activity must be desired by both parties, rather than being seen as a "wifely
obligation" that the woman has no choice but to perform.
Legal status of wife rationale
The immunities also have its origins in orthodox beliefs about the role of woman and the intent behind
the "Rape" statute. The wife was originally viewed as her husband's property. To protect "masculine
pride in the exclusive possession of a sexual item," the rape legislation was created. Therefore, virginity
and marital purity were prized beliefs that were hoped to be preserved from the dat to day unprovoked,
unanticipated, and extremely cruel attack that, in turn, called forth revenge.
The victim of rape always suffered reputational damage. It ruined the possibility of a bride-to-be who
is single. However, in an ordinary marriage where the parties have been intimate, forced sex without
the consent of the wife was not considered to be rape for the male spouse would just be utilising his
property. The common law principle of oneness of person, which states that a wife's legal identity
merges with her husband's following marriage, was similar to orthodox beliefs about the position of the
wife. Because a husband cannot rape himself, rape by a wife is theoretically impossible.
Today, most areas of law have now discarded these fictitious legal notions that considered a female as
the male's property. Nowadays, people view marriage as a partnership where the husband and wife have
equal rights. Instead of defending male interests in a woman's integrity, the goal of rape legislation
might now be seen as one of preserving a lady's safety and freedom of choice. Therefore, the husband's
exemption from the rape statute could be revoked at this time.
Problems of evidence
The exclusion has been defended on the grounds that it is difficult to establish that a rape occurred
between a husband and wife, and that the wife might make a complaint against the husband. While it is
true that the existence of a marriage creates an inference of consent, this is insufficient to stop a wife
from filing a rape complaint against her husband if she so chooses. The law does not forbid a woman
from filing a rape complaint against a guy with whom she has had a sexual relationship, yet consent
could still be assumed in such scenario given the prior relationship.
Similarly, the argument that a scheming wife might file a false complaint or use the threat of prosecution
to pressure her husband into agreeing to a favourable property settlement during a divorce is
unpersuasive because it is inconsistent with the fact that she can still lodge complaints against him for
offences other than rape. Also keep in mind that if a wife finds it difficult to substantiate a rape claim
against her husband, then giving up the exemption would most likely not be a powerful tool in the hands
of a spiteful wife.
Conclusion
Similarly, there is a chance that a cunning wife will file a bogus complaint or that she will use. To sum
up, the "Joint Committee on the Indian Penal Code (Amendment) Bill, 1972", has adopted a position
that is at odds with both this area of international development and our current legal framework. The
joint committee's amendment solidifies the married status exception to rape without taking the wife's
age (or safety) into account. To put it mildly, it appears that the joint committee did not take into account
the outdated justifications for the exemption, which are insufficient in light of contemporary marital
lives and go against the idea of gender equality in marriage.
There doesn't seem to be any justification for denying the criminal law's protection in this case to a
woman who is living with her husband. Both inside and outside of marriage, sexual relations can be
violent. One is perplexed by the retrograde change that has been made by the joint committee in this
regard, which at least protects wives under the age of fifteen under the current definition of rape.
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