MARITAL RAPE IN THE INDIAN PENAL CODE

• Recently, the Delhi High Court delivered a split verdict in a batch of petitions challenging the exception provided to marital rape in the Indian Penal Code (IPC).
• In case of a split verdict, the case is heard by a larger Bench.
• The larger Bench to which a split verdict goes can be a three-judge Bench of the High Court, or an appeal can be preferred before the Supreme Court.
• The court was hearing a clutch of four petitions challenging the constitutionality of the exception to Section 375.
• The petitioners want the exception to be struck down in totality, on the grounds that this exception violates the fundamental rights of married women.
• While delivering the verdict, one of the judges struck down Exception 2 of the Indian Penal Code’s Section 375 but another judge upheld its validity.
• Section 375 of the IPC defines the acts that constitute rape by a man.
• The provision, however, lays down two exceptions as well.
• Apart from decriminalising marital rape, it mentions that medical procedures or interventions shall not constitute rape.
• Exception 2 of Section 375 states that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”.
• It hints at marital rape by any form of sexual abuse in a live-in or marriage relationship.
• However, it only provides for civil remedies. There is no way for marital rape victims in India to initiate criminal proceedings against their perpetrator.
• The Delhi High Court has been hearing arguments in the case since 2017.
• However, this is not the first time that the issue of marital rape has been raised in the country.
• The need to remove this marital rape exception was rejected by the Law Commission of India in 2000, while considering several proposals to reform India’s laws on sexual violence.

Marital Rape find its way into the IPC

• The IPC was implemented in India during British colonial rule in 1860.
• Under the first version of the rules, the marital rape exception was applicable to women over 10 years of age which was raised to 15 in 1940.
• In January 2022, it was argued by amicus curiae (friend of the court) that the IPC is based on the 1847 draft of Lord Macaulay, the chairman of the First Law Commission established in colonial-era India.
• The exception in the draft decriminalised marital rape without any age limit.
• The provision is an age-old idea that implies consent by married women and protects the conjugal rights of the husband.
• The idea of implied consent comes from the Doctrine of Hale, given by Matthew Hale, the then British Chief Justice, in 1736.
• It states that a husband cannot be guilty of rape, since “by their mutual matrimonial consent and contract the wife has given up herself in this kind to the husband”.

Issues with Marital Rape Exception

• This exception clause violates the women’s fundamental right to equality, freedom of speech and expression, and most of all the right to life and personal liberty.
• It also denies the agency over their own bodies to women.
• Low reporting of crimes due to societal conditioning and low legal awareness.
• Inaccurate method of collection of National Crime Records Bureau (NCRB) data.
• Out of court settlements due to the lengthy process of justice/lack of admissible proof.

Way Forward

• Indian law now affords husbands and wives separate and independent legal identities, and much jurisprudence in the modern era is explicitly concerned with the protection of women.
• Therefore, it is high time that the legislature should take cognisance of this legal infirmity and bring marital rape within the purview of rape laws by eliminating Section 375 (Exception 2) of IPC.

SOURCE: THE HINDU,THE ECONOMIC TIMES,MINT