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Review: Marital Rape

The idea that striking down exception 2 of Section 375 of the Indian Penal Code, 1860 (IPC) will tear apart the institution of marriage is a premise based on a hypothetical imperative. It is based on the archaic notion that- if a woman does not succumb to all the wishes of her husband, the marriage will fail.

The aforesaid exception carved under Section 375 is the epitome of such belief. Section 375 robs from a wife something as basic as autonomy over her body, which, as per the hypothetical imperative, is prudent to save the institution of marriage. But what is presumably prudent may not be just. In order to decide whether such an approach is right, one has to use reason. Reason as to why two individuals decide to marry and live together.

De- criminalization of marital rape not only violates Articles 14 and 21 of the Constitution of India, but also, is an instrument that promotes marital rape. Psychologists have classified rapists into various classes. But they unanimously agree that - all rapists are predicted to be attuned to a potential victim´┐Żs vulnerability but an opportunistic rapist is especially so. Studies show that men are more likely to rape when the costs are low.

This can be even confirmed by the research which demonstrates that women with family members, particularly adult male family members, living nearby are much less likely to be physically assaulted by their partner. Therefore, by withdrawing the penal consequences of marital rape, it is reasonable to conclude that the exception under Section 375 rather than protecting the institution of marriage, is a catalyst escalating the incidents of marital rape. Therefore, the notion that exception carved in Section 375 for husband is serving any good to the society is ludicrous and farcical.

Rape has enormous adverse effects on a woman. Most victims suffer from issues like post-traumatic stress disorder (PTSD) and other similar difficulties. The impact on psychology is aggravated if the rapist is a known person, such as her own husband. A woman raped by a stranger lives with his memory, a woman raped by the husband lives with the rapist and faces the recurring possibility of getting raped again by her husband every moment. A study published in Psychological Medicine gives evidence that out of the women with severe mental illness, 40% are rape victim or have suffered an attempt.

Out of them, three percent of such victim committed suicide. With such records and otherwise as well, patently relying upon reason and logic, de-criminalization of marital rape under Section 375 is draconian, unjust, and arbitrary. It is something which is so perverse in nature that it does not even require an argument whatsoever. The court should declare the said exception under Section 375 as unconstitutional.

UN Committee on Elimination of Discrimination Against Women recommended to India to criminalize marital rape. Government of India rejected such recommendation stating that "it is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors e.g., level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc."

Use of such concepts to defend something like marital rape is vaguely inappropriate. Firstly, a hypothetical imperative that level of literacy and poverty in a society shall be a factor to not punish a husband if he rapes his wife is something horribly absurd. A crime is a crime due to the intrinsic nature of the act. It shall be an instrument of mathematical precision and not something depending upon irrational variables.

Needless to say, the exception 2 of Section 375 of the IPC is in patent contravention of Article 14 & 21 of the Constitution of India. The Supreme Court in State of Karnataka vs. Krishnappa held that sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honor and offends her self-esteem and dignity. Rape, being one of the acts of sexual violence is against the right to privacy which is a subcomponent of right to life and personal liberty guaranteed under Article 21 of the Constitution of India.

Therefore, excluding a woman from exercising her right to life just because she is married and the perpetrator of the offense is her husband under Section 375 of the IPC, being unjust and unfair, violates article 21 of the Constitution therefore is liable to be struck down. Failing to satisfy the test of reasonable classification, as described above, the exception 2 under Section 375 should be declared ultra-vires the Constitution as it violates Article 14 of the Constitution of India. Justice J.S Verma Committee report was correct in recommending criminalization of marital rape.

The government missed the bus then. But it is better late than never. With the hope that marital rape will be criminalized soon, following are the remedies that can be availed by a wife against her husband in the instance of marital rape.

In spite of the absence of criminal liability for the specific act of 'rape', a married woman is not left remediless entirely. The victim can take recourse to both criminal as well as civil laws for the purpose of ameliorating her physical and emotional trauma to some extent. For example, as per Section 354 of the Indian Penal Code, 1860 (IPC), if any man uses physical force in order to 'outrage the modesty of a woman' then the man can be punished with minimum of one year imprisonment which can also extend up to five years depending on the gravity of the 'criminal force' used by the man.

Similarly if any man makes any physical contact of sexual nature which is not welcomed by the woman then the man can be punished under Section 354A of the IPC for up to three years of rigorous imprisonment. Not only this, the very act of a man of forcing any woman to be naked or disrobing her against her will is punishable under Section 354B of the IPC with minimum of three years imprisonment which can be increased up to seven years depending upon the gravity of the act and the consequence.

Apart from this, recourse can also be taken under various provisions of the IPC related to hurt and grievous hurt for any physical injury resulting from the actions of the man forcing himself on any woman. Another provision in the IPC which can be helpful for a woman is Section 498A.

This provision punishes any act of cruelty by husband up to three years imprisonment. It is pertinent to note here that the term 'cruelty' here is not just physical harm but also includes danger to mental health of the woman due to the actions of the husband. These above-mentioned remedies are the criminal remedies which focus on punishing the perpetrator of the crime.

Written By: Shubham Kumar, 2nd Year 4th Semester, KIIT School Of Law

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