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Marital Rape: Should Exception 2 Be Eliminated From Section 375 IPC

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 and in any case if she is under 18 years of age.

There are 2 exceptions in section 375

  1. When there is medical treatment or intervention it shall not constitute rape.
  2. When there is sexual intercourse or any sexual act by a husband with his own wife who is above 15 years of age is not considered to be rape.
In October 2017 in the case of Independent thought v Union of India the issue before Supreme Court was whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape?Supreme Court ruled that sexual intercourse by a man with his wife, the wife not being under 18 years of age, is not rape.

Latest amendment in section 375 was in 2013:

The Criminal Law (Amendment) Act 2013 or Nirbhaya Act To remove ambiguity in the earlier law and provide for strict punishment in cases of rarest cases of sexual violence punishment.

Following the nirbhaya gang rape Justice JS Verma Committee was tasked with proposing amendments to India's rape laws. While some of its recommendations helped to shape the Criminal Law (Amendment) Act some suggestions, including that on martial rape, was not acted on.

The issue has been brought up in the parliament as well upon being question in parliament session in 2015, then Minister of State for home Affairs Haribhai Parathibhai Chaudhary dismissed the idea of criminalising martial rape.

Non criminalised nature of martial rape emates from the British era. The martial rape is largely influenced by and derived from this doctrine of merging the woman's identity with that of her husband. A married woman was not considered as legal entity.

The first petition was filed by RIT foundation to criminalise martial rape were filed in Delhi High Court in 2015. Delhi High Court gave a split decision on the constitutionality of the martial rape. Justice Rajiv Shakdher held that exception 2 of section 375 IPC is violative of Article 14,15,21 of the constitution and hence must be struck down.

However this is not the first time the issue is brought up. In 2000, the Law Commission of India while considering several proposal to reform India's law on sexual violence, had rejected any need to remove the martial rape exception, saying we are not satisfied that this exception should be recommended to be deleted since that amount to excessive interference with martial relationship.

Under the Protection of Women from Domestic Violence Act 2005 if woman has undergone martial rape, she can go to court and obtain judicial separation from her husband. However the same doesn't entirely protect the woman from the crime.

In Nimeshbhai Bharatbhai Desai v State of Gujarat the Gujarat High Court condemned martial rape while examining whether a wife can initiate legal proceedings against her husband for Unnatural sex under section 377 of IPC and believed that this was a clear case where the accused has endangered the modesty of his wife. Admitting that martial rape is in existence in India the court termed it as a disgraceful offence that has scared the trust and confidence in the institution of marriage.

Exception of martial sexual violence from rape laws also makes it difficult for women who are separated or divorced from their husbands to seek justice. According to 2013 amendment to rape laws, non consensual sex between a man and divorced or separated wife can be consider rape.

But in most of the cases, police refuse to lodge cases against the ex husband as they see previous sexual relationship between the man and woman as justification for the man seeking sex.

Kerala High Court in August 2021 ruled that martial rape was a good ground to seek divorce. It held martial rape can't be penalized, it falls in the frame of physical and mental cruelty.

In State of Maharashtra v Madhkar Narayan Supreme Court held that every women is entitled to her sexual privacy and it is not open to for any and every person to violate her as and when wished.�Exception 2 of section 375 of IPC violates Article 14 of the Constitution (Equality before law) Indian Criminal law discriminates against female victims who have been raped by their own husbands.

It also violates Article 21 of the Constitution In Suchita Srivastava V Chandigarh Administration the Supreme Court equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under Article 21.

According to National Family Health Survey 5(2019-21) Among married women aged 18-49 who have experienced sexual violence 83% report their current husband and 13% report their former husband as perpetrator. They said that their husbands physically forced her to have sexual intercourse with him even when she did not want to.

Martial rape is not currently criminalized in India. It certainly is a genuine type of wrongdoing against women and deserving of government consideration. Women who are raped by their spouses are more inclined to various attack and have long physical and mental issues. It is the time for acknowledging the fact of martial rape and there is need to strike down exception 2 of the section 375 of IPC.

Award Winning Article Is Written By: Mr.Anshaj Srivastava
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