The Gujarat High Court, on Monday, observed that sex with the wife without her consent, who is not below 18 years of age, is not rape. At first, the statement is bound to raise eyebrows and ignite anger in many, but if you look closely what law says about it, this ruling is not wrong.
Justice JB Pardiwala¡¯s court observed that the husband can¡¯t be prosecuted for the offence of rape under section 376 of IPC. According to the court, the offence was also not covered under section 375 of IPC as sexual intercourse by a man with his own adult wife (above 18 years) wouldn¡¯t be termed as rape.?
He said: ¡°The husband cannot be prosecuted for the offence of rape at the instance of his wife in view of exception-II in section 375 of IPC, which provides that sexual intercourse or sexual acts by a man with his own wife, who is not being under 18 years of age, is not rape.¡±
So, technically a husband cannot be prosecuted for having coercive sex with his wife.
The court made the observations while delivering judgment on a petition filed by a man seeking that an FIR filed against him by his wife, on charges of rape (Indian Penal Code 376) and unnatural sex (IPC 377), among other charges, be quashed.??
The man was relieved of the complaints on the grounds that there was no law on marital rape.
While the data on marital rape exists in abundance, marital rape as a ¡°crime¡± does not exist./Reuters
The court, however, advocated that marital rape must be taken seriously and should be made an offence punishable under law.
¡°The total statutory abolition of the marital rape exemption is the first necessary step in teaching societies that dehumanised treatment of women will not be tolerated and that the marital rape is not a husband¡¯s privilege, but rather a violent act and an injustice that must be criminalised,¡± the court said.
Questioning the notion of ¡°implied consent¡± in a marriage, the high court said: ¡°The law must uphold the bodily autonomy of all women, irrespective of their marital status.¡±
?The court observed that ¡°destructive attitude¡± that promotes rape in a marriage can be removed only by making marital rape ¡°illegal¡±.
What happened, in this case, is an eye-opener how the Indian law provides a free hand to men who force sex on their non-consenting wives. The court¡¯s observation is an indication that marital rape should?be criminalised.??
¡°Physically forced her to have sexual intercourse with him even when she did not want to.¡±
This is a category for spousal violence which the Indian government records data for. And according to the latest data by National Health and Family Survey (NHFS) for 2015-2016, 5.4 per cent of married Indian women face marital rape, under this category.
While the data on marital rape exists in abundance, marital rape as a ¡°crime¡± does not exist.
¡°The form of sexual violence most commonly reported by women was that their husband used physical force to have sexual intercourse when they did not want to,¡± says the survey.
Women and Child Development minister Maneka Gandhi said in 2016 that the concept of marital rape cannot be applied in India./ Representational Image
Women and Child Development minister Maneka Gandhi said in 2016 that the concept of marital rape cannot be applied in India.?
It cannot be ¡°suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc,¡± she said in a written response to Rajya Sabha on a question if the government plans to criminalise marital rape.?
According to a United Nations Population Fund report (2013), 75 percent of married Indian women have suffered marital rape.?
Sixty per cent?men have admitted to acting violently against their wife/partner at some point in their lives.
The idea in the Indian society that marriage is sacrosanct is perhaps the biggest hindrance criminalise marital rape. Women are repeatedly told that marriage is a compromise and that they need to adjust. Tolerance, adjustment and compromise are some of the words that an average Indian housewife is quite familiar with.
There must be a law that protects the most vulnerable members of the society rather than shedding off the matter disguised as culture.