Refusal To Recognise Marital Rape Implies We Value Institution Of Marriage Over Lives Of Women

Is current Indian law promoting rape ?

As long as the rape survivor is married and isn’t below the age of 15, and the rapist is none other than the husband, according to the law it isn’t considered as rape. According to the exception two to Section 375 of the Indian Penal Code (IPC), sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Basically the Indian law does not recognise the offence of marital rape and is in constant denial of the existence of the same.

Marital rape can be defined as rape in which the wife is forced to have sexual intercourse with her own husband, against her will. The concept of marital rape has emerged, to a large extent, in recent times, and many countries do recognise it as a crime. But for India, it still is an unfulfilled dream because the legal sanction for the same is yet to be made. There has been much debate and a question of law over what exactly marital rape is, and if it even exists, and if yes, then how and why it should be considered as a criminal offence.

There are two voices within this issue. The first one says that is should be criminalised because the rights of both married and unmarried women are the same, and, our Constitution recognises this equality under Article 14 which enshrines equality before the law. They also say that the same should be recognised and protected by the state according to the doctrine of the rule of law. On the other hand, the other group advocates against it by citing the logic that criminalising marital rape would “destabilise the institution of marriage“. This gives rise a question that in India, the institution of marriage is given higher priority than the rights of women. Now it’s not a hidden fact that both men and women are equal. So why do women always have to suffer?

There are situations where marital rape cases come under the ambit of the domestic violence law or under section 498A of the IPC which talks cruelty by the husband or any relative. But I want to know if this is enough.

Undoubtedly, rape is a heinous crime. Of course, there are laws that consider rape as an offence, under Section 375 and Section 376 which provides for punishment. But unfortunately, our legal system seems to discriminate between unmarried and married women. Because as the law is being read currently, rape within marriage is not a crime.

Despite the fact that we live in the 21st century, we follow laws (IPC) written in 1860. It’s an undeniable fact that the then society was different from now, with a gap of 150 years. But, the law is something which should grow with time.

According to sociologists, society is a living organism that grows and eventually dies as well, and the law is something without which the existence of society is impossible because both are entangled with each other. So, if society grows then the law of that particular land should also be modified and amended according to the need of the people. In recent times, we have seen a few instances where we can say that the rights of individuals have been promoted by our legal system, and one of the most remarkable cases was the decriminalisation of section 377 of the IPC which recognised the right of an individual to choose their partners, irrespective of their gender and sexual orientation.

We have to take such decisions to maintain the rule of law in our society. It is also noteworthy that not recognising marital rape as a crime violates fundamental rights of a person, under Article 14 (as mentioned before) and Article 21 which enshrines the protection of life and personal liberty. But one thing is clear, that rape is rape, and consent is consent. If the person has been raped, then undoubtedly, the rapist should be punished. Criminalising marital rape the need of the hour.

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