It is a well-known fact that a constitution of any country should be an ever-growing body. In an era of changing society, constitution and laws should also be transformative in according to growing needs. An eminent need of such transformation in India can be seen in respect to marital rape.
Section 375(2) of the Indian Penal Code provides an exception to Rape as:-
“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
A bare perusal of the Section provides that if a man having non-consensual sexual intercourse with his own wife will not amount to rape in accordance with I.P.C. This exception is, however, misused in several instances such as one below.
In a petition filed by an accused of Rape before the Supreme Court of India where he claims that the accused has been married to the victim in March, 2018. The Supreme court directed the accused to file a proof of registered marriage within three weeks along with a warning that no further adjournments would be granted.
In the Instant matter if the accused becomes successful in producing the marriage certificate then court under Section 375(2) of I.P.C might consider quashing the Criminal proceedings against him.
The question raised here is “Does under the shield of Section375(2) of IPC Indian laws in a way are legalising Rape ?”. The Gujarat HC also opined that “Marital Rape Is A Disgraceful Offence That Has Scarred The Trust & Confidence In The Institution Of Marriage”. The misuse of such exceptions by the offenders of Rape makes it clear that it is the time when the need of the hour is to remove such exemptions from the law and to criminalise marital rape in India. Justice JS verma committee has recommended removing of presumed consent for sexual intercourse in the event of an existing marital relationship but the recommendations were rejected by the Parliament.