Most Indian laws have inherently patriarchal and sexist origins, especially the ones relating to marriage. The consequences of such restrictive and regressive provisions become apparent in the case of gender based or minority crimes. One of these problematic provisions is Exception 2 of Section 375 of the Indian Penal Code, 1860 which reads: “sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape.”
This exception gives husbands a license to forcefully engage in sexual acts with their wives without their consent, since it is not punishable by law. The rationale behind acceptance of the current provision are:
- The deeply imbedded idea that marriage includes never-ending, implied consent to engage in sexual acts, and that a woman is a husband’s ‘property’ post marriage. This commodification of women is potentially degrading, and therefore problematic. Acting Chief Justice Gita Mittal and Justice Hari Shankar of the Delhi High Court had held that “Marriage does not mean that the woman is all time ready, willing and consenting [for sex]. The man will have to prove that she was a consenting party.”
- The fact that women might use these laws against their husbands, and this would destabilize the foundation of a marriage thereby going against Indian culture. However, this overlooks the fact that two out of every five women are victims of sexual, physical and domestic violence. Moreover, this reasoning reiterates dogmatic and parochial ideas that a woman has to silently bear whatever she is subjected to. Any and every ounce of authority that empowers them is seen as a threat to the patriarchal and oppressive conceptual framework of marriage.
Even Courts have attempted to clarify this misunderstanding and have held that marriage is personal, and that acts of the State cannot destroy the institution itself. (Independent Thought v Union Of India.)
- Marital rape has been called a ‘Western Concept’. After taking into consideration illiteracy, poverty, lack of financial females and other socio-economic concerns, it has been argued that marital rape laws cannot be introduced in India because the country is not ready for it. However, how long do females need to suffer because regressive minds in the country are not ready to accept change?
Such laws also bear testimony to the State’s insensitivity and lack of disregard for the safety and dignity of women. Such failure to recognize marital rape is the state’s complicit acceptance. The blatant disregard is violative of married women’s fundamental right to equality, since it denies them equal protection from rape and sexual harassment.
The Verma Committee, which was instituted in the wake of the Nirbhaya rape case of 2012, observed that marital rape is violative of the right to life, and suggested an absolute and complete criminalisation of the same. Despite countless petitions before the Courts asking them to amend this provision, no proper step has been taken by lawmakers.
In Justice KS Puttuswamy v UOI the Court specifically held that the right to privacy includes “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.” The same should also be applied in the case of married women.
Therefore, it is suggested that the Section is amended and marital rape is criminalized. The argument that the country is not ready for marital rape laws is baseless. Such an indifferent attitude to marital rape implies its passive acceptance. On the contrary, introduction of laws criminalizing marital rape is imperative. Considering the plight of the women in the country, and in the aim of making the country a safer place for women, it is imperative that we introduce legislations which are both gender neutral and gender sensitive.
 (2017) 10 SCC 800)
 (2017) 10 SCC 1
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