Criminalising Marital Rape

Salient Features of Indian Society

Role of Women

Issues Related to Women

Why in News

Recently, a batch of petitions seeking criminalisation of marital rape, has been filled in the Delhi High Court

In response to it the Union government has replied that it is considering a “constructive approach”towards criminalising it and had sought suggestions from various stakeholders.

The petition seeks to amend the criminal law, which includes Section 375 (rape) of the Indian Penal Code (IPC).

Background:

The grounds for “marital immunity” for rape prosecution have emerged from the patriarchal discourse in society.

According to which, a husband cannot be guilty of a rape committed upon his lawful wife because she has given up herself in this kind to her husband by their mutual matrimonial consent and contract, which she cannot retract.

Under the impact of the second wave of feminism in the seventies, Australia became the first common law country to pass reforms in 1976 and after it, many Scandinavian and European countries made rape in marriage a criminal offence.

Legal Provision Regarding Marital Rape:

Marital Rape Exception: Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape, provided the wife is above 15 years of age, also known as the “marital rape exception”.

Issues With Marital Rape Exception:

Against Basic Rights of Women: This exception clause violates the women’s fundamental right to equality, freedom of speech and expression, and most of all the right to life and personal liberty.

Government’s Stand:

Distablisng Effect on Institution of Marriage:Uptil now, the government has said on multiple occasions that criminalising marital rape will threaten the institution of marriage .

Misuse of Legal Provisions: There is a growing misuse of Section 498A (harassment caused to a married woman by her husband and in-laws) of IPC and the Protection of Women from Domestic Violence Act, 2005.

Criminalising marital rape could become an easy tool for harassing husbands