An Exception Provision under Section 375 of Indian Penal Code, 1860, Act No. 45 of 1860
“The most dreaded, yet the most frequent; the most tabooed, yet the most discussed; the most traumatic, yet the most discarded: possibly, that is how one would describe the term ‘rape’.”
Topic of marital rape has been hidden behind the iron curtains of the tag marriage. Our society and legal limitations both deny the women’s sexual agency and bodily integrity which lies in women’s human rights. Rape in whatever form maybe stranger rape, date rape, marital rape. It is a crime unpardonable by the society but ironically marital rape in our legal system is not treated as a crime. Women should come forward with all heart and break free the social shackles and raise their voice against this injustice and fight for it. This paper is an attempt to throw light on all the shortcomings and discriminations of the criminal justice system in India in regard to marital rape. It definitely highlights the reasons and arguments for necessarily establishing marital rape as a crime. The biggest drawback is the near impossibility of proving marital rape and its criminalization is going to add burden to the society as well as the legal system. It is necessary for us to recognize marital rape as a crime and to include it among the other forms of sexual offences. There is a need to educate and expose the masses to this issue and to make them understand that even rape by one’s spouse is a criminal offence.
Masochism in Indian society exists in various forms. But its existence can be seen in many forms of crimes and violence wherein marital rape i.e. rape by a man with his wife is one among them which is strongly protected and veiled by the tag of “marriage”. When we think of rape in general terms, the tendency is to think of someone who is a stranger, a wicked, malicious person. Rape in the context of marriage does not strike anybody. It is very hard for a woman to believe that she can be raped by her own. After all, how can a man be accused of rape if he is only availing of his marital rights? Forced sexual intercourse by a man with a woman which is generally termed as a rape can be in various forms. It also includes the form of a rape by a man with his wife i.e. a marital rape. But the irony today is that as compared to a rape other than a marital rape, a marital rape is not yet recognized and considered as a crime in any form by the law of our motherland. But, we cannot deny the fact that marital rape is prevalent throughout the society regardless of the unwillingness to recognize it as a crime. Women’s bodies are outraged in spite of their educational qualifications, class or status. Women themselves don’t make a noise about it or talk about their experiences. This is because cultures worldwide especially in a deep rooted conservative society like ours discourage their women from openly discussing sexual matters let alone within marriage. Most women don’t even think of rape by their husbands as a marital rape.
According to exception to section 375 of the Indian Penal Code, 1860 "sexual intercourse by a man with his own wife, not being under 15 years of age, is not rape." On the other hand, the same Code states that `it is rape if the girl is not the wife of the man involved and is below 16 years of age’. It means that if the girl is not the wife of the man involved and is below 16 years of age, then it is rape even if she consents to sexual intercourse with that man whereas if she is his wife and above 15 years of age, then it is not rape even if she does not consent to sexual intercourse with that man. What an irony, indeed!
This paper is an exclusive attempt to highlight and focus on the discrimination committed with this despised as well as deplorable act and the reasons why it has been exempted under the provisions of the Indian...