Author Name:   Varun Kumar

This research paper basically deals whether section 375 of Indian Penal Code, includes Marital Rape or not.

Does Section 375 of IPC Include Marital Rape?

1. Meaning of Marital Rape:

Before explaining the term Marital Rape, we have to understand the term Rape. Rape has been defined under Section 375 of IPC, 1860 and it provides that a man is said to commit rape when he penetrates his penis to any extent into the vagina of a woman. How far it has gone inside vagina is immaterial. Even slightest penetration of penis by a man into the vagina of a woman amounts to rape.[1]Marital Rape refers to undesirable sexual intercourse by a man with his own wife which is achieved by unlawful force, threat of force, or physical violence, or when she is incompetent to give her consent to such sexual intercourse. Marital Rape is a non-consensual act of violence perversion by a husband against the wife where she is physically and sexually abused.[2]

2. Marital Rape In Indian Context:

At present in India Marital Rape is criminalized; exception 2 to Section 375 of IPC specifically excludes acts of sexual violence inmarriage from the ambit of Rape.[3] But however at the same time exception 2 to Section 375 of IPC also made it clear that, Sexual Intercourse by a man with his own wife when she is below 15 years of age, is rape, regardless of the fact that, it was done with or without her consent.[4] It is argued that such a restriction was important to restrain men from taking advantage of their martial rights prematurely. However, no man can be held liable for raping his own wife, when she is above 15 years of age.[5] Exception 2 to Section 375 of IPC is clearly violative of Article 14 of the Indian Constitution (equality before law).[6] Exception 2 to Section 375 of IPC tends to discriminate against married women.

In Bishnudayal v. State of Bihar[7],where the victim, a girl of 13 or 14 years of age, who was sent by her father to accompany the relatives of his elder daughter’s husband to look after her elder sister for some time, was forcibly ‘married’ to the appellant and had sexual intercourse with her, the accused was held liable for rape under section 376 of IPC.

However under section 376B of IPC sexual intercourse with one’s own wife without her consent under a decree of judicial separation is punishable by 2 to 7 years imprisonment.[8]

In RTI Foundation v. Union of India[9],the Central Government submitted to Hon’ble High Court of Delhi that Criminalizing Marital Rape may destabilize institution of marriage. Central Government further submitted that that merely deleting Exception 2 will in no way serve any useful purpose as a man is said to commit 'rape' as defined under Section 375 of IPC cannot be the same in the case of marital rape. If all sexual acts by a man withhis own wife will qualify to be marital rape, then the judgment as to whether it is a marital rape or not will singularly rest with the wife. The question is what evidences the Courts will rely upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man and his own wife.

In Independent Thought V. Union of India[10], The Hon’ble Supreme Court of India on 11th October 2017, In view of the above discussion, I am clearly of the opinion that Exception 2 to Section 375 IPC in so far as it relates to a girl child below 18 years is liable to be struck down on the following grounds:–
(i) It is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Article 14, 15 and 21 of the Constitution of India;
(ii) It is discriminatory and violative of Article 14 of the Constitution of India and;
(iii) It is inconsistent with the provisions of POCSO, which must prevail.

Therefore, Exception 2 to Section 375 IPC is read down as follows:
"Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape".

It is, however, made clear that this judgment will have prospective effect. It is also clarified that Section 198(6) of the Code will apply to cases of rape of "wives" below 18 years, and cognizance can be taken only in accordance with the provisions of Section 198(6) of the Code.At the cost of repetition, it is reiterated that nothing said in this judgment shall be taken to be an observation one way or the other with regard to the issue of "marital rape".

3. Types of Marital Rape:

A) Force Only Rape: In this form of rape, the husband does not necessarily batter the wife, but uses as much force as is necessary to enter into sexual intercourse with the unwilling wife.[11]
B) Obsessive Rape: This form of rape involves the use of force in sexual assault compiled with perverse acts against the wife.[12]

4. Suggestions:
Ø The exception for marital rape be removed.
Ø The law ought to specify that:
i. A marital or other relationship between theperpetrator or victim is not a valid defenceagainst the crimes of rape or sexualviolation;
ii. The relationship between the accused andthe complainant is not relevant to theinquiry into whether the complainantconsented to the sexual activity;
iii. The fact that the accused and victim aremarried or in another intimate relationshipmay not be regarded as a mitigating factorjustifying lower sentences for rape.[13]

5. Conclusion:
It can be concluded that India is developing in every domain and identifying itself at the word level but however still the laws which govern Indian people are old-fashioned. It is high time that Marital Rape be criminalized in India. It would appear, therefore, that insofar as the concept of Marital Rape exception makes a classification between married and unmarried women, and disagrees to the former the equal protection of its criminal legislation, it prima facie violates Article 14, 15 and article 21 of Indian Constitution.

End-Notes
[1]375. A man is said to commit "rape" if he-—
a. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
b. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
c. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any of body of such woman or makes her to do so with him or any other person; or
d. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:—
First.—Against her will.
Secondly.—Without her consent.
Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourth/y.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifth/y.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.—With or without her consent, when she is under eighteen years of age.
Seventhly.—When she is unable to communicate consent.
Explanation I.—For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception I.—A medical procedure or intervention shall not constitute rape.
Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.'.
[2] Maitreyee Shukla, Term Paper: Family, Marriage and Kinship, (Sept. 18, 2017, 10:00 AM), https://www.scribd.com/document/311056909/Marital-Rape#.
[3]supra note 1.
[4]Ibid.
[5]Prof. S.n. Misra, Indian Penal Code 725 (19th ed. 2014).
[6] INDIA CONST. art. 14.
[7] A.I.R. 1981 S.C. 39 (India).
[8] 376B. Sexual intercourse by husband upon his wife during separation: Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.
Explanation.—In this section, "sexual intercourse" shall mean any of the acts mentioned in clauses (a) to (d) of section 375.
[9] W.P. (C) No.284/2015 (India).
[10] W.P. (c) No. 382 of 2013 (India).
[11]Paul Harvey Wallace & Routledge, Family Violence: Legal, Medical, and Social Perspectives 335 (2015).
[12]Ibid.
[13] Report of the Justice J.S. Verma Committee on Amendments to Criminal Law, (Sept. 18, 2017, 12:00 PM), http://www.prsindia.org/uploads/media/Justice verma committee/js verma committe report.pdf.

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