Get Inspired, Be Empowered Forums Rights & Laws Marital rape isn’t legal, and that’s okay? Reply To: Marital rape isn’t legal, and that’s okay?

Manpreet Singh
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The definition of rape codified in Section 375 of the Indian Penal Code IPC. However, Exception 2 to Section 375 still exempts any unwilling sexual intercourse between a husband and a wife. The only exception is the age of fewer than fifteen years of age. Section 375 definition of rape thus immunizes such acts from criminal reach. As per law, a wife is presumed to have given a perpetual consent of sort to have sex with her husband after entering into marital relations. Despite unwilling sexual contact, between a husband and a wife, which is recognized as a criminal offense in almost every country of the world. India still has not not criminalized marital rape. The Supreme Court of India is flooded with writ petitions challenging the constitutionality of this exception. In a recent landmark judgment, the Supreme Court criminalized unwilling sexual contact with a wife between fifteen and eighteen years of age. This judgment proved to be a green signal to other writs challenging the constitutionality of Exception 2 as a whole.
At the time the IPC was drafted in the 1860s, a married woman was not considered a legal entity. She was considered to be the chattel of her husband. She did not possess any of the rights which are now guaranteed to her as an independent legal entity, including the right to file a complaint against another under her own identity. Exception 2, is largely influenced by and derived from this already existing doctrine of merging the woman’s identity with that of her husband. But times have changed. Indian law now affords husbands and wives independent legal identities. Much of the jurisprudence in the modern era is explicitly concerned with the protection of women. This is evident in the plethora of statutes intended to protect women from violence and harassment such as The Protection of Women from Domestic Violence Act and the Sexual Harassment of Women at Workplace Act.
Exception 2 violates the right to equality enshrined in Article 14. It creates two classes of women based on their marital status and immunizes actions perpetrated by men against their wives. The Exception has made possible the victimization of married women for no reason other than their marital status while protecting unmarried women from those same acts. Other than that, it violates article 21 too.
The above conclusions clearly reflect that Exception 2 is a infringement of Articles 14 and 21 of the Constitution. It is time that Indian law makers understands the inhumane nature of this provision of law and strikes it down. Also, women are no longer chattel and this old archaic mentality has to be rooted out.