Marital Rape refers to unwanted intercourse by a man with his wife obtained by Force, or physical violence or when she is unable to give consent. It is a non–consensual act of violent perversion by a husband against the wife where she is abused physically and sexually.[1]

Though the definition of rape as per Section 375 does not include sexual activity committed by husband against his wife (Exception-2).[2]

Marital Rape is not an offense in the country as it is believed that it would become a potent tool in the hands of an unscrupulous wife to harass her husband and might destabilize the institution of marriage. The court then went on discussion and comparing the Marital Rape laws in other countries like:

• USA- The criminalization of Marital Rape in US started in mid 70s and by 1993 marital rape was a crime in all the 50 states.[3]
  
  
• UK- The marital rape exemption was abolished in England and Wales in 1991 by the Appellate Committee of House of Lords in R. v. R.[4]
  
  
• Scotland- The High Court of Justiciary took a different view abolishing marital immunity in S. v. H.M. Advocate, 1989.[5]
  
  
• Germany- It criminalized marital rape in 1997 as a change was brought in the legislative definition of Rape.[6]
  
  

The 172nd Law Commission Report suggested to delete the exception given to husband and hence marital rape to be criminalized.[7] Justice Verma Committee had proposed deletion of the exception of Marital rape from the definition of rape was not included in the Criminal Law (Amendment) Bill 2013.[8]
           
Their exists various theories given by various authors like the Feminist Theory, The Social Constructionism Theory and the Sex Role Socialization theory, The government has also given the reason for not criminalizing the Marital Rape which is that it would be used as a tool to harass husbands, however the domestic violence act is in existence which covers both physical and sexual abuse as grounds for legal system to intervene and it seems ironical that a complaint of domestic violence will ruin a marriage and a complaint of domestic violence will not.[9]

The Recent Trend
India is a developing nation and the its image in the world arena is improving day by day, however there are still areas where we are continuing the same age-old laws, Marital rape is one of them, India is one of the thirty six-countries that still have not criminalized marital rape.[10]

Recently the Supreme Court criminalized unwilling sexual contact with a wife between fifteen and eighteen years of age[11] and this has led to the flooding of the courts with petitions challenging the constitutional validity of Exception 2 of Section 375 as a whole[12].

This exception draws it roots from the Doctrine of Coverture which merged the identities of husband and wife[13], and this legislation is also of the time where woman were considered as a chattel and hence husband had all the rights over her body. Also on of the justifications of the marital rape theory is the Implied consent theory, which is said to have an irrefutable presumption of consent is thought to exist when a man and woman enter the institution of Marriage.

Recently the Centre had filed had an affidavit in the Delhi High Court against the demand of Criminalizing Marital Rape[14], wherein it was stated that the same cannot be made an offence as it may destabilize the institution of marriage and can be used as an easy tool for harassing the men. The centre also connected with Section 498A of IPC and submitted that the growing misuse of Section 498 A. However it is evident that the Protection from Domestic Violence Act, 2005[15] which was an important legislation to protect the woman and hasnt destabilize the institution of marriage.

Authors Comment
The author has attempted to define the marital rape, the definition has been formulated after going through various laws on the subject matter and also studying various statutes where marital rape is an offence and thus aims at penalizing the heinous offense which is still not addressed:

Definition:
Marital Rape means unwanted sexual intercourse of a person who is the spouse of the accused, against his/her will, or in cases where the victim is unable to give consent to the act by the reason of intoxication or unsoundness of mind or by using physical force or any other threat of using violence (against the victim or any other person related to the victim).

Explanation: Sexual Acts for this section include sexual intercourse, anal or oral sex or any sexual activity against the order of nature, forced sexual behavior with other individuals.

Punishment
The accused guilty of marital rape shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine. Provided: If it is found/proved that the allegation by victim was made falsely or was made with an intent to harass the spouse than the person making the false allegation shall be punished with imprisonment for a term which shall not be less than a period of three years and can extend to a maximum period of 7 years.

The Main Paradox
The main paradox in criminalizing the offence of marital rape in India is the Evidence. The question here is big and unanswered, the evidence to establish the guilt of accused in rape cases is much simpler to find than in a scene of Marital Rape. In a rape case, the statement of girl is of great significance and there are other evidence too which are corroborated to prove the guilt of the accused. However in a case of Marital Rape the evidence is the biggest problem. If the Consent of Wife is given the same value as that to a girl in a rape case, then this will any day like the Dowry Prohibition Act become a tool to be used against the husband, also the availability of conclusive corroborative evidence is highly unlikely.

For Example in a rape case:

• how did the girl reach the place where she was raped?
• Was she abducted?
• Was She taken forcefully?

Etc questions help in finding out the guilt of the accused, However in a rape case, the place of rape might be the bedroom, this is where the wife was supposed to be there. Or in situations where the wife initially consented to the act however denied later, these are questions which are practically very difficult to prove. Thus the issue lies of not criminalizing the act of Marital Rape, however keeping this in mind the government has to come up with a apt provision so as to deal with the menace of Marital Rape keeping in mind the fact that the provision is not misused.

End-Notes:

1. Nimeshbhai Bharatbhai Desai v. State of Gujrat 2018 SCC OnLine Guj 732, [128] 65.
2. Section 375, Indian Penal Code, 1860.
3. https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=201457.
4. R. v R. [1992] 1 AC 599.
5. PGA v The Queen (2012) 245 CLR 355 (PGA).
6. Nimeshbhai Bharatbhai Desai v. State of Gujrat 2018 SCC OnLine Guj 732, [104] 62.
7. Independent Thought v. Union of India, (2013) 382 SCC (2017) (India).
8. One Hundred And Sixty Seventh Report, The Criminal Law (Amendment) Bill, 2012
9. Id. [167] 74.
10. https://www.indiatoday.in/education-today/gk-current-affairs/story/marital-rape-312955-2016-03-12 Last Visited 23/06/2019.
11. Independent Thought v. Union of India, (2013) 382 SCC (2017) (India).
12. Section 375, Indian Penal Code,1860.
13. To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99(6) HARVARD LAW REVIEW, 1256 (1986).
14. https://www.thehindu.com/news/national/criminalising-marital-rape-will-destabilise-marriage-govt-tells-hc/article19581512.ece Last Visited 23/06/2019.
15. Protection from Domestic Violence Act, 2005.

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