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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.

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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