Using the outdated exception under Section 375 of the IPC, which states that “sexual intercourse or sexual act by a man with his own wife, the wife not being under fifteen years of age, is not rape”, Justice N K Chandravanshi discharged a man from facing trial for allegedly raping his wife (marital rape).
The High Court was hearing a criminal revision plea by the husband against the framing of charges based on the complaint by his wife. While charges under Section 376 (punishment for rape) were deemed to be “erroneous and illegal”, the court upheld the charges under Section 377 (unnatural offenses) and Section 498A (relating to cruelty to women) against the husband.
The General Narrative:
There are 195 countries in the world and out of these 150 countries criminalizes marital rape and India has never been a part of the consensus. Wondering why? It has been argued on multiple occasions and reasoning that when a person enters wedlock consentingly then he/she consents to the obligation that follows with it and intercourse is one of these moral obligations.
The question arises that is consent involved in these marriages, to begin with. Our country frowns upon love marriages and has a “culture” of arranging marriages. And we all know the story behind them. There is generally little to no contribution in the decision or approval of the people who are actually about to get into the matrimony. And if they do have a say then general emotional manipulation and force have been the best tactic the Indian parents are adequately qualified with. Also, we can’t ignore the reality that a large proportion of girls in our country have faced abuse at home in some form or other and the idea of escaping from that reality does seem like a good idea at first and most of them don’t know about the horrors that are yet to come. So, can we really accept this reasoning as the sole reason for not criminalizing marital rape?
We have also been fed the unreasonable narration that matrimony has always been considered to be a sacred institution and making any rational changes would invite considerable hostility from the public and hence the government or any legal institution has no incentive to pass any such law.
But then I want to ask isn’t women are a part of this “people” label too. Then why are they not included in this conversation let alone be the center of this narrative? Honestly, we all know why. can’t imagine liking forced sex and seeing that as a moral obligation besides the predator himself. But then women have always been excluded. Why you might ask? because if we as a society started recognizing the sufferings of this gender then probably half the things would be illegal.
As if the arguments going around this topic weren’t bizarre as it is it has also been argued that criminalizing marital rape would put the entire family “under stress” and can potentially destroy the institution of marriage. But can it be said that the institution will exist even after such an incident? The answer is yes. It has and always will. Because none of us know the meaning of No, the meaning of consent, and the basic knowledge that Marital Rape is wrong morally and legally (in most parts of the world but not India, so congrats you are safe).
Section 375 of the Indian Penal Code (IPC) categorizes 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 will not constitute the offense of rape. The statutory age of consent was raised from 15 to 18 by the Criminal Amendment Act of 2013.
The fact that there is a law that partially protects the young women of our country is even more bizarre. So, you want me to believe that these young women don’t have the right ability to make the choice regarding sex and hence need to be protected. The judiciary thinks that there are young women who are vulnerable and don’t know enough to make the decision regarding sex and not the fact that they are being forced to do so. Also, if that’s the thought then why isn’t sex education a part of the curriculum already? Further, the legal age of marriage in the case of a female is 18 years of age so what part of the society is this law protecting? Isn’t child marriage an offense anyways?
The Courts of India:
The Kerala High Court delivered a landmark judgment earlier this week that deemed marital rape to be a valid ground for divorce.
In the case at hand, where the appellant forced his sick wife to have sexual intercourse with him, the Division Bench comprising of Justice Kauser Edappagath and Justice A Muhamed Mustaque opined that “husband’s licentious disposition disregarding autonomy of wife is marital rape”. The bench held that while marital rape is not penalized in India, it would not deter the court from recognizing it as an act of cruelty and granting a divorce. Partial win but sometimes something is better than anything.
A sessions court in Maharashtra gave pre-arrest bail to a man while concluding that forcible sex with his wife was not an “illegal thing” though she said it left her paralyzed.
In July 2019, the Delhi high court dismissed a petition urging it to direct the Centre to declare marital rape as a ground for divorce.
While we may still stay in denial or if I may say hide behind the narration of “sacred institution” and not penalize marital rape for our convenience but the world recognizes the offense. It’s about time we do too.
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