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Marital rape: an indignity to women

  • IASbaba
  • August 31, 2021
  • 0
UPSC Articles
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WOMEN ISSUES/ GOVERNANCE

  • GS-1: Issues relating to Women
  • GS-2: Government policies and interventions for development in various sectors and issues arising out of their design and implementation

Marital rape: an indignity to women

Context: Based on the allegations of wife, charges were framed on husband by a trial court under 

  • Section 376 (rape), 
  • Section 377 (carnal intercourse against the order of nature) 
  • Section 498A (cruelty towards wife by husband or his relatives) of the Indian Penal Code (IPC). 

The Chhattisgarh High Court upheld charges under Sections 498A and 377 but discharged the husband under Section 376 

  • Reason: Exception 2 to Section 375 (the definition of rape), sexual intercourse by a man with his own wife (provided she is over the age of 18) would not amount to the offence of rape. 

Issues

  1. Inconsistent provisions
    • Other sexual offences make no such exemption for marriage.
    • Thus, a husband may be tried for offences such as sexual harassment, molestation, voyeurism, and forcible disrobing in the same way as any other man.
    • A husband may be charged and tried for non-consensual penetrative sexual interactions other than penile-vaginal penetration with his wife under Section 377 (before Navtej Singh Johar v. Union of India, 2018, consent was not relevant to Section 377, but it is now).
  1. Patriarchal beliefs
    • The marital rape exception is an insult to the constitutional goals of individual autonomy, dignity and of gender equality enshrined in fundamental rights such as Article 21 (the right to life) and Article 14 (the right to equality).
    • Non recognition of marital rape means that women’s husband is her sexual master and his right to rape her is legally protected.
    • Presently, marriage signifies perpetual sexual consent by women. This reinforces Patriarchal belief and violates individual autonomy of woman.
    • In Joseph Shine v. Union of India (2018), SC held that the offence of adultery was unconstitutional because it was founded on the principle that a woman is her husband’s property after marriage. Similar principle is not applied while recognising marital rape.

Arguments for providing exemption to marital rape

  • Recognising it destroy the institution of marriage. This was the government’s defence in Independent Thought v. Union of India (2017)
  • Since marriage is a sexual relationship, determining the validity of marital rape allegations would be difficult. 

Conclusion

In 2017, the Supreme Court, in Independent Thought, said that husbands who raped their minor wives could no longer hide behind exemptions provided in Section 375 of IPC. It is high time adult women are afforded the same protection and dignity in marriage.

Connecting the dots:

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