The recent judgement by Chhattisgarh High Court has poked one of the most unsettled matters in India – Marital Rape. Justice N.K. Chandravanshi read in his judgement, ‘forceful sex by a man against his wife is not rape’. The decision was ruled based on the exception clause of Section 375 of the Indian Penal Code.
Section 375 defines rape as an offence as:-
A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under six circumstances.
Apart from these six circumstances, this section of IPC has an exception rule which says that “Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape.“
This is not the first time that this rule of exception has instigated the women rights group. The judgement caught the attention of every related group and has stirred again the decades-long debated topic- The ‘marital rape’
Marital Rape is the act of sexual intercourse with the spouse without her consent. According to Indian laws, marital rape is not a rape or any to be called offence provided if, the spouse is above 15 years of age.
It was observed in the landmark case of R v R that for a husband to rape his wife is a crime. The case came as a strong and much-needed judgement that overruled the judgment of R v. Clarence which stated otherwise.
Marriage has been considered a contract between a husband and a wife. Although in India marriage has multiple definitions varying from religion to religion. This contractual treatment of marriage has manifested the idea that a woman has consented to sex with her better half. This could be better understood when contemplated in correlation to the term conjugal rights. Conjugal right means the rights established for husband and wife by the marriage.
Doctrine of Coverture
The world has observed the imbalanced status of men and women since its origin. The Doctrine of Coverture was the doctrine based on the same. It predicated that the rights of the woman are subsumed by her husband. This doctrine is clearly against the modern ideology and principles which endorses the idea of equality for men and women. However, the non-criminalization of marital rape was the consequence that society is still facing and struggling with.
It was in the case of The Chairman, Railway Board v. Chandrima Das when the court held that rape is not only an offence under IPC but a crime against society. Despite this, the aspect of rape is very far in the most sacred relation of society.
The patriarchial dominance has always put men at the advantage of leading and overpowering women. Fortunately, the world has observed changes for good. It is finally realized that equal status of men and women is what the principles and ideology of society seek.
Issues like dowry, domestic violence, sexual abuse and harassment have been detrimental to firmly establish rights and dignity for women. The laws have helped to curb them. The Protection of Women from Domestic Violence Act, 2005 labelled marital rape as a violent act. This gave chance to women to approach courts.
Kerala High Court observed marital rape as a powerful ground for claiming divorce. The issue of marital rape has taken women for granted. Article 21 provides for right to dignity. It also stands for the individual’s dignity where every individual has right to make decisions vital to them including sex.
Human rights are the pillars of democracy and the pride of the people. A crime as heinous as rape has been combated with laws that could not protect wives and subjected them to the same by their husbands.
Women have excelled in every field is now known to everyone. However, if their dignity and pride are not safeguarded, all the progress done of development will go to vain. The increase in the crime rate against women always makes new highs every year. More than 70% of women in India are pathetically exposed to domestic violence. In this developing phase, section 375 of the Indian Penal Code needs revision to fulfil the motive it was made for.