Marital rape law and the Indian society

A lot of feminist groups are raising their voice for a marital rape law to be constituted in India with great vigour. Activists around the country are making hue and cry about the cruelty conducted on women in marriage. They allege that women are sexually harassed by the husbands when they seek sexual favours from their wives without their consent.

But is this menace that much widespread that it can be given a place in the IPC?

1. What is marital rape?

Sexual intercourse done by a husband with his wife without her consent is termed as marital rape.

Rape is a physical sexual act done with women without her consent. Even the definition of rape given under Section 375 of IPC is much broader.

Consent is said to play an essential role here. But it will be very tough to determine what vitiates consent in a marital relationship.

2. Should marital rape be criminalised in India?

Sexual acts by a husband with his wife (without her consent) is not termed as rape in India. Marital rape/sex with spouse is not recognised as a crime in India even after the 2013 Amendments to the law. An exception has been carved out in the definition of rape under Section 375 wherein sexual intercourse by a husband upon his wife above the age of 15 years will not be termed as rape.

Repercussions of acceptance of this notion will be widespread and will heavily harm the institution of marriage in India.

3. How criminalisation of marital rape will lead to the harassment of the husband and the in-laws of the wife?

Marital rape as a form of cruelty, may be a ground for divorce, but it is not punishable as rape. There are high chances that this will lead to fake and frivolous litigation. Woman will misuse the law to settle cases and to satisfy their ego. They will even file rape cases against their husbands for petty matrimonial issues. And this will obviously increase the workload of the already overburdened judiciary.

If marital rape is termed as domestic violence and sexual abuse it will lead to gross misuse of Domestic Violence Act and the sexual assault and rape laws as being done already. Section 375,377 of IPC are already misused in India.

The biggest issue is how the marital rape will be proved against the husband? And the burden of proof will lie against whom, most probably on the husband. He will suffer immensely due to the gross and already rampant misuse of law.

4. Conclusion

Meaning of marriage in Indian context is different to that of the notion prevalent in the western world. Marriages will start breaking down in India.

Fake accusations of marital rape will undermine the credibility of the legal system in India. Marriage is a fragile institution. It takes immense efforts to carry it forward.

In Indian context, there is hidden consent in the “no” of a woman. Not all women live in metropolitan cities. Its not the right of the husband but her hidden consent too at times.

Also, another concern to be addressed is-will it be gender neutral? Can a wife do it with her husband? Will this law be made gender neutral?

All these things need to be given priority before even thinking of drafting this law.