The patriarchal ideology that regulates Indian families has always pictured women as the possession of their husbands or guardians. As a consequence, rape was regarded as a robbery of women’s property as well as a crime against a spouse or guardian. This dogma has influenced our legislators to overlook the crime of spouse rape by authorising it the shield of the spouse’s wedding right, thereby mutely enduring that women are nothing more than a protest of her better half’s sexual satisfaction, with no consent of her own over her sexuality.

Lately, a variety of countries have implemented marital rape legislation, annulled marital rape special circumstances, or have regulations that do not distinguish between marital and ordinary rape. This illustrates that marital rape is now regarded as a violation of human rights. In 2006, it was estimated that marital rape is a criminal offence in more than a hundred countries, but India is not one of them. Notwithstanding the reality that there have been numerous laws and institutions passed in India about cruelty against women in their own homes, such as legislation against female infant murder and domestic violence, marital rape has yet to be recognised as a crime, according to strategy creators.

Marital Rape And Laws In India

In India, rape in the bedroom is not a crime. In India, laws against marital rape are either non-existent or esoteric, relying on the interpretation of the courts. “Sexual intercourse with a man with his wife, the wife not being under 15 years of age, is not rape,” says Section 375 of the Indian Penal Code (IPC) as an exception clause. According to section 376 of the Indian Penal Code, the rapist should be punished with the detention of either portrayal for a term that may not be less than 7 years but may extend to life or a term of up to 10 years, and should also face a fine, unless the woman raped by her spouse and is not under the age of 12, in which case he may be punished with the detention of either portrayal for a term that may extend to life or a term of up to 2 years.

As a result, marital rape is only considered rape if the spouse is under the age of 15, and the severity of the penalty is reduced. After the age of 15, the spouse has no legal security, which is against human rights guidelines. A similar rule, which makes the legal age of consent for marriage 18 years old, protects only individuals under the age of 15 from sexual mistreatment. The following are examples of situations in which a spouse can be charged with marital rape under the Indian Penal Code:

When the wife is between the ages of 12 and 15, the offence is punishable by up to 2 years in prison, a fine, or both;

When the spouse is under the age of 12, the offence is punishable by the detention of either portrayal for a term that may not be less than 7 years but may extend to life or a term of up to 10 years, as well as a fine.

Rape of a judicially separated spouse is punishable by up to two years in prison and a fine; rape of a wife over the age of 15 is not punishable.

The Protection of Women from Domestic Violence Act of 2005, which deems marital rape to be a sort of local violence, was passed in 2005. A woman can go to court and seek a legal split from her spouse for marital rape under this Act. Marital rape is irrational: a lady’s body is raped, and her affection and trust are harmed as a result, driving her into a state of instability and terror. At the holy place of marriage, she relinquishes her human rights. However, there are no laws in place to protect the rights of victims of marital rape, and the measures adopted are ineffective.

The basic premise of these “laws” is that agreeing to marry entails agreeing to engage in sexual activity. Is it true, however, that consenting to sexual activity entails agreeing to be subjected to sexual violence? Brutality creates a sense of dread and insecurity in the lady, causing her to succumb to sex. It’s not the same as agreeing to have sex. In criminal law, the distinction between assent and non-assent in contradistinction is crucial.

Surprisingly, a woman may protect her right to life and liberty, but not her body, within her marriage. The definition of rape (section 375 of the IPC) should be altered entirely. So far, the only recourse for women has been section 498-A of the IPC, which deals with remorselessness, to protect themselves from “unreasonable sexual direct by the spouse.” In any case, the courts have no standard of measurement or translation for ‘perversion’ or ‘unnatural’ within the context of spousal relations. Is it possible to have an unreasonable interest in sex? Isn’t assent a pre-requisite? Is getting married a licence to rape? There is no response because the judiciary and legislatures are both silents.

RECENT DEVELOPMENTS

The Delhi High Court has postponed the hearing of a case seeking to criminalise marital rape until February 21, giving the Centre two weeks to make a final decision on the issue before it and telling the government that it does not agree with it as a court to leave the case waiting. Since 2015, the court has remained undecided on the legal matter.

Last Monday, the administration asked the court to postpone the case’s proceedings pending the outcome of a consultation with numerous stakeholders. On Monday, Solicitor General Tushar Mehta restated the government’s request, saying the legal issue should not be considered solely as one of constitutional validity. The petitions challenging Exception 2, which shields husbands who have forced non-consensual intercourse with their spouses from criminal prosecution under Section 376 IPC, were heard on 22 occasions between January 7 and February 7 by a division bench of Justices Rajiv Shakdher and C Hari Shankar. The court further stated that it had no part in obtaining the case listed before it and that the master of roster, the Chief Justice, did so. It also stated that a case is decided in court or when the legislature steps in.

The Centre said last week that the matter has been pending since 2015 and that if it waits for such a “fruitful exercise” for some time, no prejudice will be caused and that the government will be able to effectively help the court.

While the case has been ongoing since 2015, and the government presented its position in 2017, the Centre told the court last month that it wanted to engage in a consultative process with stakeholders before presenting a new and comprehensive position to the court. The case’s other parties have already been heard.

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