CRIMINALIZATION OF MARITAL RAPE IN INDIA
Marital rape is the term which is used as the same sexual offence which is defined in the Section 375 of Indian Penal Code, i.e. “Rape” by sexual intercourse or penetration without the consent of the victim, but the only difference in between the ‘Rape’ and ‘Marital Rape’ is the relation which takes place between the victim and the perpetrator. In marital rape, the victim and an accused upholds the relation of wife and husband respectively, and the sexual intercourse or penetration done by husband with the wife without her consent. So, it is well evident that the consent of the victim plays the major role in this offence. Here, the burden of prove lies on the victim that, is there a consent present or not. Only in the case of minors, the concept of consent is not admissible as to take any action because minors are considered as non-compatible to give consent, so, sexual intercourse or any sexual act done by a man with a minor’s consent is considered as rape.
Marital rape comes under the exception 2 of Section 375 of Indian Penal Code, often called “Marital rape exception clause” which states that sexual intercourse or any kind of sexual act done by a man with his own wife, except the wife being under the age of fifteen years, is not considered as rape. This exception exist in Indian law system because of the orthodox mentality of our Indians in according to which they consider that a good wife or a good woman never say “NO” to her husband and which is also followed by our Indian law system. Indian law follows the concept of implied consent if a man and a woman hold the relationship of a husband and a wife, by the means of staying together, this togetherness of living has taken up as “Yes” to every sexual act done by a man with his wife.
Phulmoni Dasi Rape Case (1889) was the first case of marital rape in which, a 10 year old Bengali girl was married to the 30 year old man and the girl died after the man tried to consummate his marriage because of the injury occurred in the vagina during the consummation by the man. But when the time came of conviction the court declared the man guilty for causing “Grievous hurt” according to the “Section 338” of Indian Penal Code, 1860, and acquitted from the charges of rape as it involves section 375 which exclude the sexual activity done between a husband and wife. [1]
On 29th March, 1891, a bill named “Age of Consent” was passed by Council of India which include Section 376 of IPC, 1860, which says that a girl under the age of 12, her consent was not being a part of any determination and any sexual act done with a girl under 12 even by her husband, he shall be convicted for rape. But still not criminalize marital rape.
Approximately 42% countries of the world criminalized the “Marital rape” but not India. Why?
“Justice Verma Committee’s Report in 2013 and Pam Rajput Committee Report in 2015” strongly recommended for criminalizing the marital rape but still this subject just blanket by some justifications. [2]
According to Indian culture, marriage is so sacrosanct and if we criminalize the forced sexual act in a marriage then it will resultant to the “Divorce or Domestic violence complaint” which leads to the break- up of marriage which is not so great in India.
(https://en.wikipedia.org/wiki/Phulmoni_Dasi_rape_case#:~:text=The%20Phulmoni%20Dasi%20rape%20case,and%20triggered%20several%20legal%20reforms.)
Author:- Vanshita Agarwal , a Student of Agra College, Agra
