Marriage in india is considered sacred something above reproach therefore the
concept of marital rape is somewhat suppressed by giving the notion that it would
If a man has sexual intercourse with his wife without her explicit consent, it
directly distorted the sacred sanctity of matrimony between the couple. After once,
the man has violated the consent of her wife, there exists no option of going back
to the notion of sacrosanct in the marriage. It not only disgraces the choice of the
woman but also violates the trust of the marriage.
So when I started researching about this topic with a fair mind obviously anyone
with some empathy would favor the plight of women suffering for ages but there
were some arguments against a law criminalizing marital rape which had some
merit to it such as the difficulty in assigning the burden of proof and procuring
evidence.
SLIDE 1
Coming to the question of evidence, argument of burden of proof.
Firstly, that something which is difficult to prove cannot be an argument to ignore
a crime. According to that logic even dowry death has to be proved beyond all
reasonable doubt by the prosecution so this offence should also be done away with.
One Argument against criminalising marital rape focus on forensic evidence, or the
‘lack of it’ How would one prove that the act was not-consensual using DNA
samples as evidence? The thing is Marital rape generally doesn’t happen in
isolation, there will be a history of violence and physical abuse, and will fit into the
larger picture of domestic violence. We have to look at it from that perspective,”
This was furher affirmed by the judgment of Supreme Court in Sheik Zakir vs
State of Bihar, case, where it ruled that the absence of a medical record would not
be of much consequence if the other evidence on record is believable
SLIDE 2
High Court of Gujarat, in the case of Nimeshbhai Bharatbhai Desai v. State of
Gujarat where the court stipulated that "nonconsensual act of marital rape violates
the trust and confidence within a marriage and the prevalence of marital rape in
India is what has damaged the institution of marriage"
Its not like there has been no efforts made to bring reform to this flawed statute,
Verma Committee, a three-member panel appointed to strengthen India’s sexual-
assault laws in the wake of a brutal gang rape in 2012 recommended that the
exception to marital rape should be removed. Marriage should not be considered as
an irrevocable consent to sexual acts. Therefore, with regard to an inquiry about
whether the complainant consented to the sexual activity, the relationship between
the victim and the accused should not be relevant.
The court in Independent thought vs union of India directed to strike down
Exception 2 to Section 375 IPC in so far as it relates to a girl child below 18 years
on the grounds that It is arbitrary, tyrannical and not fair, just, and reasonable. It
violates the rights of the girl child by infringing Article 14, 15 and 21 of the
Constitution of India and reviewing the logic of the court it seems hard to
understand why women who have attained the age of 18 have lost the right to be
protected by law.
RIT Foundation vs UOI
This case had a split decision justice shakdher was not in the favor of striking
down the marital rape law he stated that there is no stipulated punishment for an
act of non-consensual sex, by a husband with his wife, as it is does not amount to
'rape' and, consequently, Section 376 would not apply to it. If the impugned
Exception was to be struck down the punishments envisaged by Section 376,would
be applicable to the husband, which is precisely what the legislature didn’t intend.
If the Court is not empowered to prescribe punishments, equally, the Court cannot,
by its order, convert an act which, prior thereto, was not an offence, into an
offence,
SLIDE 4
It can be argued that such issues related to married couples are covered in the
“Protection of Women from Domestic Violence Act 2005” and thus there is no
need for a special law to cover marital rapes or to delete that exception part in the
IPC section 375.
The Domestic Violence Act can be argued to cover the offense of marital rape
because “sexual abuse” is defined as one of the act or conducts that constitutes
“domestic violence”.
However, there are two problems with this act, due to which it is considered
inadequate to deal with cases of marital rapes:
1. While the term “sexual abuse” is mentioned, the act doesn’t explicitly define
“rape” as is defined in the section 375 of the IPC.
2. The Domestic Violence act and IPC have a major difference based on the
severity of punishments accorded.
Conclusion
Therefore to conclude - there exist a major evil in our society, and to counter it a
committee needs to be formed to produce a different burden of proof for such a
crime to make sure that while the aggrieved women are getting justice it doesn’t
open a barrier for misuse of law.
In "Bodhisattwa Gautam v. Subhra Chakroborty" , the Supreme Court held that "Rape is the most
barbaric act which can be committed against any person and violates the victim's fundamental right to
live with the human dignity which is protected under Article 21 of the Indian Constitution." This clearly
reflects that non-consensual sexual intercourse with a woman, whether married or unmarried, amounts
to rape. Thus, Exception 2 of Section 375 violates Articles 14 and 21 of the Constitution, respectively,
and Marital Rape should be criminalized under Section 375 of the Indian penal Code.