- Marital rape is the act of sexual intercourse with one’s spouse without her consent.
- One of the Judge struck down as unconstitutional the exception to Section 375 of the IPC, which says that sexual intercourse by a man with his wife aged 18 and above is not rape even if it is without her consent.
- However, another Judge said that issue requires consideration of social, cultural and legal aspects.
What is Section 375 of the Indian Penal Code (IPC)?
- Section 375 of the IPC defines the acts that constitute rape by a man.
- The provision, however, lays down two exceptions as well.
- Apart from decriminalising marital rape, it mentions that medical procedures or interventions shall not constitute rape.
- Exception 2 of Section 375 states that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”.
What happens in a split verdict:
- In the event of a split verdict like this, the matter has to be referred to a third judge of the high court for a decision either way. The third judge goes through all the arguments made by both sides, the submissions of the amicus curiae, and then arrives at their decision.
- Till the third judge has delivered their verdict, there is no decision of the high court which can be appealed, as there is no majority decision either which way.
- Once the third judge delivers their opinion, the matter can then be appealed to Supreme court.
Reasons for criminalising marital rape:
Associated physical violence: Rape by a spouse, partner or ex-partner is more often associated with physical violence.
Mental harassment: There is research showing that marital rape can be more emotionally and physically damaging than rape by a stranger.
Compulsive relationship: Marital rape may occur as part of an abusive relationship.
Revengeful nature: Furthermore, marital rape is rarely a one-time event, but a repeated if not frequent occurrence.
Obligation on women: In the case of marital rape the victim often has no choice but to continue living with their spouse.
Marital rape is considered as the violation of FR guaranteed under Article 14 of the Indian constitution which guarantees the equal protection of laws to all persons.
By depriving married women of an effective penal remedy against forced sexual intercourse, it violates their right to privacy and bodily integrity, aspects of the right to life and personal liberty under Article 21.
Subjective: It is very subjective and intricate to determine whether consent was acquired or not.
Prone to Misuse: If marital rape is criminalized without adequate safeguards it could be misused like the current dowry law by the dissatisfied wives to harass and torture their Husbands.
Burden on Judiciary: It will increase the burden of judiciary which otherwise may serve other more important causes.
Forced sexual intercourse between a husband and wife cannot be treated as rape. At worst, it can be treated as sexual abuse found in Section 3 of the Domestic Violence Act.
Spousal intimacy: In a marriage, conjugal expectation is a two-way street, where “consent is given as a part of spousal intimacy although the will to engage may be absent”.
Need for written agreement: If every such case is treated as marital rape, then the only way partners in a marriage may survive would be by drawing up a detailed written agreement.
- Sanctioning marital rape is an acknowledgment of the woman’s right to self-determination (i.e., control) of all matters relating to her body.
Before giving a final interpretation, the judiciary must balance the rights and duties of both partners.
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