The Marital Exception to Rape: How to make a Wrongdoing Vanish

Published on 30 Mar 2016 by Team

Rape, being one of the greatest evil that still exists, women have no stand against this evil, even if it is done by their so-called ‘better halves’. India’s rape laws, which make an exception for cases where the perpetrator is the husband, has its origins in the common law. Section 375 of the Indian Penal Code, which defines rapes, makes an exception for marital rape by stating,“Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

The grounds for“marital immunity” for rape prosecution were laid by Chief Justice Sir Matthew Hale in The History of the Pleas of the Crown, published in 1736, 60 years after his death. He wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.” Don't stay silent! Take an action now-consult with the best divorce lawyers in India.

What The Law Says

Section 375, the provision of rape in the Indian Penal Code (IPC), has echoing very archaic sentiments, mentioned as its exception clause- “Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.”

According to the section, the rapist should be punished with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine unless the woman raped is his own wife, and is not under 12 years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to 2 years with fine or with both. 

This section in dealing with sexual assault, in a very narrow purview, lays down that, an offence of rape within marital bonds stands only if the wife be less than 12 years of age, if she be between 12 to 16 years, an offence is committed, however, less serious, attracting milder punishment. Once, the age crosses 16, there is no legal protection accorded to the wife, in direct contravention of human rights regulations. Consult with the best attorneys in Indiato know more.

172nd Law Commission recommendations 

The 172nd Law Commission report had made the following recommendations for substantial change in the law with regard to rape.

  1. ‘Rape’ should be replaced by the term ‘sexual assault’.
  2. ‘Sexual intercourse as contained in section 375 of IPC should include all forms of penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal.
  3. In the light of Sakshi v. Union of India and Others [2004 (5) SCC 518], ‘sexual assault on any part of the body should be construed as rape.
  4. Rape laws should be made gender neutral as the custodial rape of young boys has been neglected by law.
  5. A new offence, namely section 376E with the title ‘unlawful sexual conduct’ should be created.
  6. Section 509 of the IPC was also sought to be amended, providing higher punishment where the offence set out in the said section is committed with sexual intent.
  7. Marital rape explanation (2) of section 375 of IPC should be deleted. Forced sexual intercourse by a husband with his wife should be treated equally as an offence just as any physical violence by a husband against the wife is treated as an offence. On the same reasoning, section 376 A was to be deleted.
  8. Under the Indian Evidence Act (IEA), when alleged that a victim consented to the sexual act and it is denied, the court shall presume it to be so.

Theories of Marital Rape

There are various theories which define and characterize Marital Rape in different colours, Feminist Theory claims that exception given to marital rape is a tool exercised by the patriarchal society to control women and is a result of a power play by the male spouse in the marriage. It is also considered that the exception given in such cases is remnant of earlier laws regarding women that considered them to be the property of the husband.

Social Constructionism Theorists say that the men have dominated the society in lawmaking and the political arena since ancient days, laws are the reflection of the interests of men. These theorists believe that marital rape is a means through which male section tries to assert themselves over their wives.

Theorists of Sex-Role Socialization Theorysay that the root of this can be found in the particular gender roles which a person is deemed to follow, and which guide the sexual interaction between spouses in a marriage. In marriage, women are always taught to be submissive, calm and passive whereas males are trained to be dominant and aggressive, and they are of the opinion that marital rape is also an expression of perception of traditional sex roles. Talk to the best advocates in India to understand the correct legal remedy against marital rape in India.

Thus, the definition and other theories point that the marital rape is one such instance where the male dominance on women remains unheard and unresolved.

Non-criminalization of marital rape is one of the vices that is still left in the Indian legal system, it renders the women who are bound with marriage incapable. Marriage does not thrive on sex and the fear of frivolous litigation should not stop protection from being offered to those caught in abusive traps, where they are denigrated to the status of chattel. Apart from judicial awakening; we primarily require the generation of awareness. Men are the perpetrators of this crime. ‘Educating boys and men to view women as valuable partners in life, in the development of society and the attainment of peace are just as important as taking legal steps protect women’s human rights’, says the UN. Men have the social, economic, moral, political, religious and social responsibility to combat all forms of gender discrimination.

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