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Criminalization of Marital Rape

Marital Rape - Body Of Crime: Editorial On Delhi High Court's Split Verdict On Seeking To Outlaw Marital Rape - Telegraph India

Marriage is a very sensitive subject as it is said to be a new beginning for two people who are going to lead life together for some it is the most beautiful part of their lives and for some it is just a way to fulfil their sexual desires because of the mind set of considering marriage as a license for sex and a woman as a thing who exist to fulfil the desires of men, this leads to a marital rape.

For some men marriage is just a source of satisfying their sexual needs and desires without even understanding that indirectly and unknowingly they are committing a heinous offence.

Marital rape, which refers to sexual intercourse forced upon a spouse without their consent, is a sensitive and controversial issue in India. While the Indian Penal Code criminalizes rape in general, it contains an exception for sexual acts between a husband and his wife if the wife is over 15 years old. This exception essentially means that marital rape is not recognized as a crime in India.

Several women's rights organizations and activists have been advocating for the criminalization of marital rape in India, arguing that it is a violation of a woman's fundamental right to bodily autonomy and violates the principles of gender equality. However, there is still a lack of political will to make changes to the existing law, and many people still believe that the issue should be resolved within the private sphere of a marriage.

History Of Marital Rape In India:
The Delhi High Court has been hearing arguments in the case since 2015.

In January 2022, two judges of the Delhi High Court started to hear petitions filed by individuals and civil society organizations challenging the exemption.

By May 2022, they had arrived at a controversial split verdict. One judge was in the favour of criminalizing marital rape as it violated a woman's right to consent, while the other was against it, saying marriage "necessarily" implied consent.

The matter was pushed to the Supreme Court.

Supreme Court:
In September 2022, a Supreme Court ruling on women's right to safe abortions regardless of marital status held that for the purposes of the Medical Termination of Pregnancy Act, the definition of rape should include marital rape.

Law Commission of India:
The need to remove the marital rape exception was rejected by the Law Commission of India in 2000, while considering several proposals to reform India's laws on sexual violence.

Justice JS Verma Committee:
In 2012, the Justice JS Verma Committee was tasked with proposing amendments to India's rape laws.

While some of its recommendations helped shape the Criminal Law (Amendment) Act passed in 2013, some suggestions, including that on marital rape, were not acted on.

The issue has been brought up in Parliament as well.

Upon being questioned in a Parliament session in 2015, the idea of criminalising marital rape was dismissed with the view that "marital rape cannot be applied in the country since marriage was treated as a sacrament or sacred in the Indian society".

Government's Stand:
The Central Government initially defended the rape exception and later changed its stand and told the court that it was reviewing the law, and that "wider deliberations are required on the issue".

The Delhi government argued in favour of retaining the marital rape exception.

The government's arguments spanned from protecting men from possible misuse of the law by wives, to protecting the institution of marriage.

Should Marital Rape Be Criminalized In India?

Exception 2 of section 375 of Indian penal code basically means that a husband can do anything

Marital rape should be criminalized because it is a form of sexual assault that violates an individual's bodily autonomy, dignity, and fundamental human rights. Just because two people are married does not mean that one partner has the right to force the other into sexual activity without their consent.

Criminalizing marital rape acknowledges that marriage does not give someone the right to control their partner's body and affirms the importance of consent in any sexual encounter. It also helps to address the power dynamics that exist within many marriages, where one partner may use their position of authority to coerce or manipulate the other into sexual activity.

Furthermore, criminalizing marital rape can help to reduce the stigma and shame that survivors of this type of sexual assault often face. It sends a message to society that this behavior is unacceptable and provides survivors with legal recourse and access to support services.

Basically, criminalizing marital rape is a necessary step in promoting gender equality, protecting individual rights and dignity, and addressing the pervasive issue of sexual violence.

The Issues Faced Because Of The Exception 2 To Section 375 Of IPC:

The exception of Section 375 of the Indian Penal Code (IPC) that allows sexual acts between a husband and wife, even without the wife's consent, is a controversial issue. Here are some of the issues related to this exception:

Violation of women's rights:
The exception of Section 375 IPC is a violation of a woman's right to bodily autonomy and violates the principle of gender equality. It is argued that a woman should have the right to say "no" to sexual intercourse, regardless of her marital status.

Undermines the concept of marriage:
Marriage is considered to be a partnership of equals, where both partners have equal rights and responsibilities. The exception of Section 375 IPC, which allows a husband to have sexual intercourse with his wife without her consent, undermines this principle.

Lack of legal recourse:
The exception of Section 375 IPC means that marital rape is not considered a crime in India. This lack of legal recourse can be a barrier to women seeking justice and can lead to a culture of impunity for perpetrators of marital rape.

Inconsistent with international standards:
India is a signatory to various international conventions, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which recognizes marital rape as a form of violence against women. The exception of Section 375 IPC is inconsistent with these international standards.

Forcing your wife for sexual intercourse without her will is a form of rape or visa-versa one should understand that marriage is not a license for sex and our society fail to understand this and for them it is just a part of married life.

The criminalization of marital rape in India is a complex and controversial issue. While some argue that it is necessary to protect the rights of women and ensure that they are not subjected to sexual violence within their own marriages, others believe that criminalizing marital rape could lead to misuse of the law and further strain already vulnerable marital relationships.

However, it is important to note that marital rape is a form of sexual violence that is often overlooked and underreported. Denying women the right to bodily autonomy and consent, regardless of their marital status, is a violation of human rights and a reflection of deeply ingrained patriarchal attitudes.

Furthermore, many countries around the world, including some neighboring countries of India, have already criminalized marital rape, and there is no evidence to suggest that it has led to a breakdown of marital relationships.

Therefore, in order to ensure that women's rights are protected and that they are able to live free from violence and discrimination, there is a need for legal reform to criminalize marital rape in India. This would send a strong message that sexual violence in any form, whether it occurs within or outside of marriage, will not be tolerated, and would provide greater protection to women who are currently vulnerable to such violence. Written By:
  1. Deeksha Sood and
  2. Shubhangi Sharma

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