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Will Marital Rape Be Criminalized In 2022?

"Her friends used to tell her it wasn't rape if the man was your husband. She didn't say anything but inside she seethed: she wanted to take a knife to take faces"- F.H. Batacan

Its 2022 & India remains one of 36 countries where it's not a crime for a husband to rape his wife. This exception features in Section 375 of the Indian Penal Code that defines rape as a criminal offence. A man commits rape if he is Section 375 of the Indian Penal Code (IPC) categorises acts of penetration sans informed consent as rape. However, it categorically mentions that sexual intercourse with one's wife who is over the age of 15 won't constitute the offence of rape. The legal age of consent was raised from 15 to 18 by the Criminal Amendment Act of 2013.

Most countries in the world recognise that rape is a rape, and that rape is a crime. So, what's holding India, a promising superpower back? An analysis points to several factors: an outdated IPC dating back to the Victorian era; a rigidly patriarchal society, across India's myriad religions, that suppresses women's voices and agency: and, a culture where marriage and family, in the dated sense of the words, still hold utmost significance as the building blocks of the society.

Historical View
Documentation of how the Age of Consent law in India became related with the Age of Marriage goes back to the struggle by social reformers in the latter half of the nineteenth century to raise the Age of Consent to 12 years with the aim of increasing the Age of Marriage.

Child marriages were common in India, and in some areas, it was practiced as well. A movement by Indian social reformers became focused to stop this practice by strongly advocating with the British government. Hindu reformist resisted many attempts by the British to stop child marriages by way of legislation or other reforms. The domain of private laws regarding marriages, property, and inheritance was left alone by the British, to be ruled by the community's religious and customary laws.

Prohibition of sexual intercourse before the age of consent applied to unmarried and married girls irrespective of consent, and this worked as a proxy to increasing the marriageable age of girls.

The Indian Penal Code (IPC) Section 37 created an exception to sexual activity within marriage, and this was placed at 13 years. This exception to sexual activity with an underage girl within marriage as legally acceptable is tantamount to accepting marital rape.

Both the Age of Consent and Age of Marriage continued to increase till the year 1978, always with exception to marital rape set lower than the Age of Consent. This shows that family was shown leniency to perform the marriage of girls even below the specified age of marriage and reinforced the sexual right of a husband over an underage wife.

Status of Marital Rape in India in 2022

  • The definition of rape codified in Section 375 of the Indian Penal Code (IPC) includes all forms of sexual assault involving non-consensual intercourse with a woman
  • Non-Criminalization of marital rape in India emanates from Exception 2 to Section 375.
  • However, Exception 2 to Section 375 exempts unwilling sexual intercourse between a husband and a wife over fifteen years of age from Section 375's definition of "rape" and thus immunizes such acts from prosecution.
  • As per current law, a wife is presumed to deliver perpetual consent to have sex with her husband after entering marital relations.
  • The concept of marital rape in India is the epitome of what we call an "implied consent". Marriage between a man and a woman here implies that both have consented to sexual intercourse, and it cannot be otherwise.
  • As per now, The Delhi High Court is hearing a batch of petitions challenging the exception to Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape.
  • The petitions against marital rape have been filed by NGOs RIT Foundation, All India Democratic Women's Association and two individuals.

Remedies Under Marital Rape

Availability of other provisions in various legislations including Sections 498A, 304B of IPC, Domestic Violence Act, and other civil remedies, are insufficient to deal with the offence of rape under sec. 375, as regards to a wife alleging rape by her husband. There is no express commonality between the offences.

The ingredients of sec. 375 are separate and there is no reason why sec. 498A can be used as a substitute for Section 375. It can be used in addition the removal of exception 2 from Section 375 of the Indian Penal Code will not amount to the creation of a new offence.  'Consent' is an underlying condition in the exceptions to Section 375 IPC.'Sexual acts' when done 'with consent' are not an offence. However, when the same sexual acts are done "without a woman's consent", that becomes the fundamental foundational basis of invoking Section 375 IPC.

Violative of Article 14 & 21

Under Art 14, the Indian Constitution guarantees equality, the marital law exception discriminates against females who have been raped by their own husbands by denying them equal protection from rape and sexual harassment.

The exception to Section 375 creates two categories of women based on their marital status and prioritizes one unmarried woman in protecting them from rape than married ones�that's a direct contradiction of every Indian citizen being guaranteed equal protection of laws. Exception 2 is also a violation of Article 21 that states:
No person shall be denied of his and personal liberty except according to the procedure established by law.

Over recent years, as evolving contexts throw up new challenges to citizens fundamental rights, the Supreme Court has often interpreted Art 21 to extend beyond the literal guarantee to life and liberty and include the rights to health, privacy, dignity, safe living conditions and safe environment and continuous internet among others.

In Suchita Srivastava v. Chandigarh Administration, for instance, the Supreme Court said the right to make choices about sexual activity is very much within the scope of rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.

The strongest argument in terms of legal precedents can be found in Justice K.S. Puttuswamy (Retd.) V. UOI, in which the Supreme Court recognized the right to privacy as a fundamental right and specifically said that includes "decisional privacy reflected by an ability to make intimate decisions primarily consisting of one's sexual or procreative nature & decisions in respect of intimate relations".

Forced sexual intercourse & cohabitation is a violation of that fundamental right. Since this ruling doesn't differentiate between married & unmarried women & there is no explicit ruling that says women lose their fundamental right to privacy upon marriage�all women have the fundamental right to be able to consent and be able to say no.

Marriage doesn't mean that the woman is all time ready, willing & consenting for sexual intercourse. The man will have to prove that she was a consenting party.

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