Marital Rape is an unfortunate reality of Indian society and a social vice that the law is still catching up to. Prima Facie, it seems outrageous to think that a man, be it a spouse, can violate a woman and the woman does not have any recourse in law for it. But the complexity of the legal and social ramifications must be contended with so as to develop Jurisprudence to an extent where it can outlaw this social evil in a responsible and considerate manner.
The law on the issue, as of now is intensely convoluted. In a recent judgement, the Supreme Court held that sexual intercourse between spouses where the girl is between the age of 15 and 18 shall be considered as rape and criminalized it. This judgement is in line with Protection of Children from Sexual Offences Act, 2012 (POCSO), under which, a combined reading of Sections 3, 5 and 6(n) lends itself to the conclusion that if a man commits penetrative sexual assault on his child wife (below 18 years of age), he would be guilty of “aggravated” sexual assault and can be imprisoned upto 10 years.
The Domestic Violence Act 2005 provides another caveat by protecting the girl child from any act done by her husband which may endanger her health, safety, limb, life or well being, whether mental or physical, including protection from physical and sexual abuse by husband. Other statutes like the Juvenile Justice Act and the Protection of Child Marriage Act can also be read into this issue. The law, as a result of this judgement stands harmonized and definitively outlaws marital rape with regards to the girl child and women below the age of 18.
Under Section 375 IPC, sexual intercourse between a man and a woman where the woman is below the age of 18 years is statutory rape. However, Exception 2 of Section 375 provides that a husband can have sexual intercourse with his wife provided she is over 15 years of age.
But this outlawing is within the framework of a voidable or unlawful marriage. The problem arises when within a valid marriage, rape occurs between two adults, and it is here that law runs into a problem. The reservation that judges have in outlawing marital rape are the dangers it might pose to the institution of marriage. The law has always aimed at an approach of minimum interference with the institution of marriage and outlawing marital rape would, according to the Law Commission of India “interfere in the institution of marriage and increase scope of misuse”.
However, it cannot be ignored that the Commission is ignoring the archaic and bigoted nature of Exception 2, which arises from the orthodox notion that the woman gives up her body to the man when she marries him and thus the man cannot rape her. Thus, it is unquestionable that this heinous crime cannot continue to be accepted as lawful, however, the courts need to strike a balance between outlawing marital rape and also curbing the scope of misuse or exploitation of the law.