Marital Rape

Marital Rape

Subject – Polity

Context – In 2017, the Supreme Court, in Independent Thought v. Union of India, refused to delve into the question of marital rape of adult women while examining an exception to Section 375 (rape) of the Indian Penal Code (IPC) which allows a man to force sex on his wife.

Concept –

• Marital rape (or spousal rape)is an act in which one of the spouses indulges in sexual intercourse without the consent of the other.
• Today, more than 100 countries have criminalized marital rape but, unfortunately, India is one of the only 36 countries where marital rape is still not criminalized.
• National Family Health Survey (NFHS) 2015-16 data indicates that an estimated 99.1 per cent of sexual violence cases go unreported and that the average Indian woman is 17 times more likely to face sexual violence from her husband than from others.
• Doctrine of Coverture: Non-Criminalised nature of Marital rape emanates from the British era. The Marital rape largely influenced by and derived from this doctrine of merging the woman’s identity with that of her husband.

Legal Provisions –

• Section 375 of the Indian Penal Code (IPC)defines rape as a criminal offence and states that a man commits rape if he has sexual intercourse with a woman without her consent or if she is a minor.
• However, according to Exception 2 to Section 375 “sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape
• However, in a landmark judgment in 2018, the Supreme Court of India held that it will be considered rape if a man has sexual intercourse with his wife if she is aged between 15 and 18
• The only recourse against non-consensual sex for married women are civil provisions under the Protection of Women from Domestic Violence Act or Section 498-A of the IPC on cruelty against a wife by the husband or a husband’s relatives.
• Section 376-A was added in the Indian Penal Code, 1860, which criminalized the rape of a judicially separated wife.
• Law Commission in its 42nd Report advocated the inclusion of sexual intercourse by a man with his minor wife as an offence it was seen as a ray of hope.

Constitutional Provisions –

• Marital rape violates the right to equality enshrined in Article 14 of the Indian constitution.
• It violates Article 21 of the Constitution – According to creative interpretation by the Supreme Court, rights enshrined in Article 21 include the rights to health, privacy, dignity, safe living conditions, and safe environment, among others.