Author: Pavani Priya Akula, Sri Padmavathi Mahila visvavidhyalayam
TO THE POINT
Marriage has high social values in the Indian society and it reflects ancient traditions in the society and main aim marriage is to reproduce and continue in the society. Sexual intercourse is important in marriage and one spouse forces other spouse in sexual intercourse then it is considered as a Marital rape. Even though Marital rape fulfil all the ingredients of Rape it is not considered as an offence and court opines that it is the issue of the family and no court can interfere into it.
LEGAL JARGON
Indian Penal Code (IPC)
1. Section 375: Definition of rape, which excludes marital rape.
2. Section 376: Punishment for rape.
3. Exception 2 to Section 375: Marital rape exemption, which states that sexual intercourse by a husband with his wife, who is above 15 years of age, is not rape.
Protection of Women from Domestic Violence Act, 2005
1. Section 3: Definition of domestic violence, which includes sexual abuse.
2. Section 4: Right to obtain a protection order.
Criminal Law (Amendment) Act, 2013
1. Section 2: Definition of rape, which includes marital rape in certain circumstances.
Key Concepts
1. Marital rape exemption: The legal provision that excludes marital rape from the definition of rape.
2. Consent: The voluntary agreement to engage in sexual activity.
3. Coercion: The use of force, threat, or intimidation to engage in sexual activity.
Proposed Reforms
1. Criminalizing marital rape: Removing the marital rape exemption from the IPC.
2. Increasing the age of consent: Raising the age of consent from 15 to 18 years.
THE PROOF
Definition of Rape
Section 375 of the IPC defines rape as an act of sexual intercourse by a man with a woman without her consent, or with her consent obtained through coercion, threat, or intimidation. However, Exception 2 to Section 375 states that sexual intercourse between a husband and wife is not considered rape, as long as the wife is above 15 years of age.
Related Provisions
– Section 498-A of the IPC: Deals with cruelty relating to perverse sexual conduct of the husband, providing some recourse for women experiencing marital rape.
– The Domestic Violence Act, 2005: Hints at marital rape through provisions related to sexual abuse in live-in or marital relationships, but only provides civil remedies.
– The Protection of Women from Domestic Violence Act, 2005: Provides protection to women from domestic violence, including sexual abuse, but does not explicitly criminalize marital rape.
Proposals for Reform.
The 172nd Law Commission report recommended changes to the penal provisions related to rape, including removing the marital rape exception and making the definition of rape more inclusive. However, these proposals have not yet been implemented into law.
ABSTRACT
Marriage is the traditional ceremony in India and it has more social values in the society the main aim of the marriage is to reproduce and constitute a family and to help in the development and increasing of population. Consent is most important in the sexual intercourse even though both the spouses are married without consent it has to treated as rape. In India practice of child marriage is more and when the girl child to subjected to sexual intercourse it may affect her health and it can be considered as a marital rape. In marital rape one spouse forces other spouse for sexual intercourse mostly male forces female for sexual intercourse. Marital rape can also lead to sexual abuse and to torcher the one spouse by another spouse. When a woman becomes pregnant by forceful sexual intercourse it may also lead to improper growth of the child and it attacks the mental health of the women. When a rape is treated as crime in India even Marital rape meets all the essentials of rape it is not considered as an offence when there is lack of consent. Courts says that sexual intercourse between two spouses is completely their family matter and no one can interfere with it and there is no punishment for marital rape. For every woman has privacy of her body even she is married no can be allowed touch her without her consent. When she was subjected to marital rape without her consent and sexual abuse then the spouse has to be punished, but marital rape is an exception in India and there is no punishment for the Marital rape.
CASE LAWS
1. Independent Thought v. UOI (2017): The Supreme Court held that sexual intercourse with a minor wife (below 18 years) is rape, striking down Exception 2 to Section 375 of the IPC as unconstitutional to the extent it permitted marital rape of minors.
2. RIT Foundation v. UOI (2015): The Delhi High Court held that marital rape is a valid ground for divorce, recognizing the concept of marital rape in Indian law.
Other Notable Cases
1. Nimeshbhai Bharatbhai Desai v. State of Gujarat (2018): The Gujarat High Court held that a husband’s forcible sexual intercourse with his wife, despite her resistance, constitutes marital rape.
2. State of Maharashtra v. Madhukar Narayan Muley (2019): The Bombay High Court held that a husband’s repeated demands for dowry and subsequent forcible sexual intercourse with his wife constitute marital rape.
3. Sarita Sharma v. Sushil Sharma (2019): The Delhi High Court held that a wife’s allegations of marital rape are sufficient grounds for divorce.
Cases Pending
1. RIT Foundation v. UOI (Special Leave Petition): A special leave petition is pending before the Supreme Court, challenging the Delhi High Court’s decision in RIT Foundation v. UOI (2015).
2. Marital Rape Case (Supreme Court): A batch of petitions is pending before the Supreme Court, seeking to criminalize marital rape and challenging the constitutionality of Exception 2 to Section 375 of the IPC.
CONCLUSION
Hence, I conclude that like rape marital rape should be punished with particular punishments. For every individual they have some rights regarding their body and privacy. In every sexual intercourse the consent is more important even they are married couple when the women disagree for the sexual intercourse with the men then it has to be considered as a rape and it should be punished. Marital rape meets all the essential ingredients of rape, but due to family composition martial rape was not punished and remained as exemption in our country.
FAQS
Is martial rape considered as an offence in India?
No, Marital rape is not an offence in India.
Which Section of IPC defines Rape?
Section 375 of IPC defines Rape.
