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The Biggest Shortcoming Of Indian Penal Code Section 375: The Marital Rape Exception And Marital Rape Laws Of Some Other Countries

The Dictionary's meaning of Rape is to violate or ravish a lady. It is a crime that is cognizable. According to section 375 of the Indian Penal Code, 1860. Only when the woman is under 15 years old does Section 375 of the Indian Penal Code (IPC) classify forced sex in marriage as a crime. Therefore, according to the IPC, marital rape is not a crime. Victims of marital rape must seek redress via the Protection of Women from Domestic Violence Act of 2005 (PWDVA).

The phrase "marital rape" (sometimes known as "spousal rape") refers to unwanted sexual contact between a man and his wife that was either gained with the use of physical force, the threat of physical force, or both when the victim was unable to agree. Any type of penetration, whether anal, vaginal, or oral, that is done against the victim's will or without her agreement is referred to as "unwanted intercourse."

Every Indian citizen is guaranteed the fundamental rights to equality and life under Articles 14 and 21, respectively, of the Indian Constitution. This demonstrates that each person who is a citizen of our nation has the right to live in equality and dignity free from discrimination, exploitation, or other forms of violation of their rights.

However, the fundamental idea behind these fundamental rights is flagrantly and extensively exploited, particularly when it comes to gender-based crimes or minority crimes, due to the largely patriarchal confines of Indian marriage laws. According to the Indian Penal Code (IPC), a husband is still free from prosecution for raping his wife, subject to the wife's age.

This is a blatant illustration of how outdated and sexist India's present standard is, where the husband is granted ultimate dominance and legal legitimacy over the wife's rights. The phrase "Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape" has been added to section 375 of the IPC's second exception. Additionally, the age restriction was only included in the IPC because of the numerous incidents of young brides passing away as a result of engaging in premature sexual intercourse.

One of the most heinous instances of marital rape was the Phulmoni Dasi case in 1881, also known as Queen-Empress vs. Hurree Mohun Mythee. This particular example has to be brought up specifically since it received a lot of attention from both the public and lawmakers. According to the facts, Phulmoni Devi, an eleven-year-old child bride, passed away from profuse bleeding when her mid-thirties-old husband Hari Mohan attempted to consummate their marriage despite their young age.

Hari Mohan was later acquitted on charges of rape because the provisions at that time exempted marital rape from the extents of Penal laws.

Concerns concerning the age of consent for child brides in particular were raised by the case of Phulmoni Dasi. In order to save female youngsters from future immature cohabitation and prostitution, the colonial administration amended the Age of Consent Act in 1861 to raise the consent age from ten to twelve years in both marital and extramarital circumstances. However, when the Amendment Act of 1925 was passed, a distinction was made between the age of consent for extramarital and marital rape, which was set at fourteen and thirteen years, respectively. This change had a diluted impact because the husband could still only be imprisoned for a maximum of two years.

Additionally, the said exception for married women between the ages of fifteen and eighteen persisted until 2018, when the Supreme Court (SC) of India ruled in a landmark decision that engaging in any type of sexual activity with one's wife while she is between the ages of fifteen and eighteen constitutes rape. This was the first occasion that the legal concept of rape was acknowledged when a man sexually assaults a girl under the age of 18-even if he is also her spouse.

This, however, does not offer any protection to any woman over the age of 18, who may also be the victim of marital rape by her husband. As a result, cases of this kind are common throughout the nation and often go unreported or unpunished because there is no legal penalty or punishment for marital rape of a woman over the age of 18. Therefore, if a woman is married to a guy who sexually assaults her and is older than eighteen, the criminal clause does not apply. As a result, women who have been raped have no legal remedy if the offender is their husband.

This illustrates the fact that there is no legislation that explicitly criminalises marital rape, as well as the state's failure to uphold the rights of a wife who is a woman and, more significantly, a human being who deserves to live in security and dignity. The Indian Constitution guarantees a number of fundamental rights, such as the right to life and the right to privacy, but it neglects to recognise that the right to life also entails the right to live a life of dignity, and that marital rape completely undermines the underlying principle of this fundamental right.

Marital Rape Laws In Some Other Countries

Women's rights organisations launched the anti-rape campaign in the 20th century, notably since the 1970s, and demanded that they be granted sexual autonomy over their own bodies, including within marriage. As a result of this growing recognition of these rights, about 150 nations have made marital rape a crime as of 2019. In certain situations, marital rape is expressly illegal; in other situations, there is no legal distinction between being raped by one's spouse and being raped by anybody else. Due to a court ruling, marital rape became illegal in a few nations.

Under the influence of the second wave of feminism in the 1970s, Australia became the first common law nation to adopt legislation in 1976 making rape in marriage a crime. Prior to that, numerous Scandinavian nations-including Sweden, Norway, and Denmark-as well as nations in the Communist bloc-as well as the former Soviet Union and Czechoslovakia-passed legislation making spouse rape a crime. The first country to adopt a legislation specifically designating it as a crime was Poland in 1932. Since the 1980s, the marital rape immunity has been legally repealed in numerous common law nations. These include Israel, South Africa, Ireland, Canada, New Zealand, Malaysia, Ghana, and the United States.

Marital Rape Laws in some other countries are as follows:

  1. Australia-Express Criminalization
    Australia's criminalization process started in the state of New South Wales in 1981 and spread to all other states between 1985 and 1992. Effectively enforcing the legislation was the government.

    The consequences for rape are governed by the laws of the respective states and territories. Under the progressive measures of Premier Don Dunstan, South Australia became the first state in Australia to address marital rape, which resulted in the exemption being partially abolished in 1976. No person will be deemed to have agreed to sexual activity with another person just because he is married to that person, according to Section 73 of the Criminal Law Consolidation Act Amendment Act of 1976 (SA).
  2. Austria
    Austria In 1989, spousal rape became a crime with a maximum sentence of 15 years in jail. Marital rape is not expressly excluded from the definition of rape in the Criminal Code (S 201).
  3. Canada
    In Canada, Rape of men or women, including spousal rape, was classified as sexual assault under Articles 271 and 278 of the Criminal Code [law 28], and the government vigorously enforced the legislation. Criminalization of marital rape was first done in 1983.
  4. China
    Spousal rape is neither a criminal offence nor a civil wrong in China.
  5. Britain
    Marital rape is a crime in Britain, and those proven guilty may get a life sentence.
  6. Nigeria
    The penal code of Nigeria expressly forbids marital rape. In any case, a husband cannot be accused of raping his wife.
  7. Russia
    Marital rape has been made a crime in Russia. It is the first nation to eliminate the married exception from its laws against sexual assault.
  8. Nepal
    The marital rape exemption was eliminated by Nepal in 2002 after the country's Supreme Court ruled that it violated both the right to privacy and equal protection under the law. The categorization of the legislation that an act performed against an unmarried girl becomes an offence and an act similarly conducted against a married lady does not become an offence is not a logical classification, it stated.
  9. USA
    Between the 1970s and 1993, all 50 US states criminalised marital rape. In 1984, the Court of Appeals of New York invalidated the marital rape exception under their statutes.
  10. EU
    In 1986, the European Parliament passed a resolution on violence against women calling for the criminalization of spousal rape. France, Germany, the Netherlands, Belgium, and Luxembourg all followed suit shortly after.
Out of the 179 nations for which statistics were available, 52 had changed their laws to specifically make marital rape a crime, according to the UN Women's 2011 report. The remaining nations include both those with rape laws that grant an exemption for marital rape and those without such an exception, in which case the spouse may be charged with violating the country's normal rape laws.

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