For the past week, the Delhi High Court is listening to a petition passed to do away with the marital rape exception in the Indian Penal Code (IPC)'s Section 375. The arguments were made back in 2015, challenging the notion that non-consensual sex in marriage is considered a crime.
India is one of the few countries that has not criminalized Marital Rape. Recent developments have shed light on the irregularity in conjugal rights, claiming that everything in a marriage is consensual.
Section 375 With Irregularities
In the Indian Penal Code, Section 375 defines rape as an act that a man commits when performing sexual intercourse with a woman without her consent and 'against her will.' However, the law has an exception where sexual intercourse between a husband and wife cannot be considered rape, except when the spouse is under 15 years of age.
According to the Indian Express, Section 375's history traces to the 1800s. Thomas Macaulay introduced western education in India, presided over the country's first law commission and introduced the exception to protect a man's conjugal rights. The concept of implied consent comes into play here, making this law problematic.
The Ongoing Argument
A senior advocate named Rebecca John is the amicus curiae in the case presented at the Delhi High Court. The point is being heard by a bench consisting of Justices Rajiv Shakdher and C Hari Shanker.
Throughout the hearing, John has come up with convincing arguments. The Quint quotes, "There can be a unilateral expectation as well, and that is not fulfilled, then the spouse has civil remedies. But when it becomes non-consensual, and there is coercion and causes harm and injury, then the sexual act must become an offence."
Further, she argued strongly for doing away with the problematic exception. The removal will ensure that a woman's bodily integrity and a married person's consent are essential and respected. Calling it unconstitutional, the exception denies a married woman autonomy and freedom in the marital relationship.
'Marriage Strike' Trends On Twitter
As the marital rape argument increases, the internet is at loggerheads again. For most people, marriage is considered a 'sacred' institution where 'consent' is a given. Therefore, a husband and wife indulging in sexual intercourse are justified at all costs. However, many forget that consent is essential, even in a marital relationship. An individual's autonomy should not be stripped away in this context.
While many wholeheartedly support the current argument, several are against it. 'Marriage Strike' has been trending on Twitter, where netizens vow not to marry ever if marital rape is criminalized.
Four men are seen holding placards that say 'Save Indian Men' and shared under the hashtag in a tweet. Many claim that Section 375 will be 'misused' by women to file false rape cases against them if the exception is removed.
Need Of The Hour
The discussion on Marital Rape is gaining momentum across the country for all the right reasons. While the exception's removal will not make this a separate offence, it will still help married women to seek such matters in court without any irregularities.
The Central Government's arguments on the same are awaited as of now. In a bid to overhaul the entire criminal law framework, marital rape can be a topic that will be widely discussed. However, in 2017, they held that removing the marital rape exception will destabilize the institution of marriage, and husbands will be the primary victims. The Delhi government seems sceptical as they feel striking down the exception will that lies outside the court's powers.
A marriage is considered a holy union of two individuals. Deeply entrenched in patriarchy, many communities expect a woman to give up her entire life to live a happy life with her better half. For this reason, many give up all their professional and personal freedom to make a new life for themselves with their better half.
It is this misconception that has given rise to issues like marital rape. Consent is an essential aspect that many still fail to understand. Even in a marriage, coercive sexual acts perpetrated by a husband with his wife is rape, no matter how the relationship is perceived.
With bated breath, the country's women wait for a positive outcome. A lot needs to be done to rework the legal framework to ensure autonomy, fundamental rights, and freedom for married and unmarried women.
Also Read: 'However Brutal Husband Is, Can Intercourse Be Termed Rape?' Asks CJI SA Bobde, Raises Eyebrows