Recently, while hearing the petitions declaring marital rape as an offense, a two-member bench of the ‘Delhi High Court’ has given a divided decision and also said that “the petitioners can approach the Supreme Court”.
In the case where one Justice held that “Forcible intercourse without the consent of one’s wife is violative of Article 14 of the Constitution, the other Justice disagreed with the decision”.
In India, ‘marital rape’ i.e. ‘marital rape’ is not a crime in the eyes of the law. Therefore, it is neither defined in any section of the IPC nor there is a provision for any kind of punishment for it.
In the petitions filed in this case in the High Court, sub-clause 2 of Section 375 has been challenged as arbitrary, unfair and violative of Articles 14, 15, 19 and 21 of the Indian Constitution.
In fact, the definition of rape has been given in Section 375 of the Indian Penal Code and it has been described as a serious offence. But the petitions objected to the exception “section-2” of this section. Under which this provision has been said that “if a married man has physical relations with his wife, who is 15 years of age or above, it shall not be deemed to be rape even if he has not obtained the consent of the wife in this regard.” However, in the year 2017, the Supreme Court has raised the age of the woman to 18 years.
In this case, the High Court court had appointed two senior lawyers to assist the court in this matter and questioned the government on the subject. Both these lawyers had supported the removal of Section 2 of the IPC.
The central government had said in the affidavit that “a comprehensive approach is needed in the case of marital rape. At the same time, the government said that discussions are going on with all the parties in the matter including the state governments.” It also said that “the basic pillar of any civilized society is women and the government is fully committed to their rights, their freedom and respect.”
The Justice Verma Committee report had said that “a physical relationship created by disagreement should be included in the definition of rape”. In fact, after the Nirbhaya rape case, the Justice Verma Committee had demanded a separate law for marital rape. He argued that consent and dissent should also be defined in sex after marriage.
The opinion of the society and the legalists on this seems to be divided. There is also an argument of a section opposing the declaration of marital rape as a crime, that it should not be misused as in the Dowry Atrocity Act 498-A.
However, legal experts believe that if any law is felt in the society, then it should be made and it is the job of the court to see how much it is used or misused.
At the same time, it is also being said in this case that if women file a case of marital rape, then how will they prove what happened to them and how will the man also prove that he was not wrong.
And if a woman wants to separate from her husband, then she can also use such allegation and if such cases come to the fore in a live-in relationship, what will happen to her?
Apart from this, it is also being said that any law on this subject can also affect institutions like marriage and family and may increase mistrust and disintegration in the society.
If we look at the court’s decisions on marital rape cases, then a contradiction is seen. Where Chhattisgarh High Court Judge NK Chandravanshi acquitted a man in the case of rape of his own wife. On the other hand, the Kerala High Court had said in a similar case that “the belief that the husband has a right over the wife’s body and having a relationship against his will is marital rape.”
If we look at the global level, then marital rape is considered a crime in more than 50 countries of the world and the provision of punishment for it has also been made in the law of these countries. According to UN Women, an affiliate of the United Nations, the home is one of the most dangerous places for women.
According to a 2019 report by UN Women, only four out of ten countries consider marital rape a crime. In addition, the report also said that in more than 50 countries, including the US, Nepal, Britain and South Africa, having sex with a wife against her will is considered marital rape.
Therefore, before taking any decision in this regard, it is necessary to consider every aspect so that with women’s rights and respect, the institution like family also remains strong.
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