In the global ranking, out of 185 countries, 77 of them have laws explicitly criminalizing marital rape. Conversely, 34 countries provide immunity for perpetrators, essentially decriminalizing marital rape. Among these countries is India.
Section 375 of the Indian Penal Code (IPC) determines what actions classify as rape by a man. There are, however, two exceptions to this provision. Firstly, it decriminalizes marital rape and secondly, it denotes that any medical procedure or interventions do not constitute rape.
The understanding of this law takes one back to Exception 2 of Section 375 of the IPC. It specifies that any sexual intercourse by a man with his wife, provided she is not under fifteen years of age, cannot be termed rape. In 2017, the Supreme Court of India increased this particular age limit to 18 years.
The Domestic Violence Act, 2005 subtly refers to marital rape as any form of sexual abuse in a live-in or marriage relationship. Yet, it only provides civil remedies and offers no provisions for victims to initiate criminal proceedings against their perpetrator in India.
The Evolution of Marital Rape Law in Indian History
The marital rape exemption has been a hotly contested issue over the years. The Delhi High Court ruled in favor of criminalizing marital rape in 2022, but the matter has since moved to the Supreme Court. In a case studying women’s right to safe abortions, the court declared that the definition of rape should include marital rape.
Contrastingly, the Law Commission of India rejected the need to remove the marital rape exception in 2000. Similarly, when the issue was raised in Parliament in 2015, the idea of criminalizing marital rape was dismissed on the ground that marriages in India are seen as sacred.
Government stances have varied over the years. The Central Government initially defended the rape exception but later changed its position, stating that it was reviewing the law.
Concerns Surrounding the Exemption of Marital Rape
The exception clause for marital rape violates women’s fundamental rights such as equality, freedom of speech and expression, and the right to life and personal liberty. It denies women agency over their bodies and can negatively impact justice due to societal conditioning, low legal awareness, inaccurate National Crime Records Bureau (NCRB) data collection, and out-of-court settlements due to a lack of admissible proof or a lengthy justice process.
Historical Context behind the Exception of Marital Rape in the IPC
The IPC implemented the marital rape exception during British colonial rule in 1860. It was based on the 1847 draft of Lord Macaulay, which decriminalised marital rape without any age limit. This provision embodies an age-old idea of implied consent by married women and protects husbands’ conjugal rights deriving from the Doctrine of Coverture, which states a woman loses her individual legal identity after marriage.
Global Perspective on Marital Rape Legislation
The United Nations has called upon countries to end marital rape by closing legal loopholes. For instance, marital rape has been criminalized in the US since 1993, leading to varying laws across its states. Similar measures have been implemented in the UK, South Africa, and Canada. However, countries like Ghana, India, Indonesia, Jordan, Lesotho, Nigeria, Oman, Singapore, Sri Lanka, and Tanzania have not expressly criminalized marital rape.
Proposed Steps Forward
Modern Indian law now recognizes husbands and wives as separate and independent legal entities, with much jurisprudence explicitly focused on protecting women. It’s high time that the legislature brings marital rape within the purview of rape laws by eliminating Section 375 (Exception 2) of IPC. There is a need to establish laws that define boundaries in interpersonal relations and uphold ideas of equality, dignity, and bodily autonomy, especially considering societal realities about their limited use in practice.