Should Marital Rape be Criminalized ?

Section 375 of IPC defines rape and lists several notions of consent that if vitiated, would constitute the offence of rape by a man: However, the provision lays down two exceptions.

Exception 2 of the Section 375 of IPC decriminalizes marital rape, it says sexual intercourse between a man and his wife (not under 15) is not rape

Marital rape and its status in India

1.Marital rape or spousal rape is the act of sexual intercourse with one's spouse without their consent

• The act can be carried out by force are physical violence.

• Although, it is now widely seen as a form sexual violence, historically, sexual intercourse within manage was regarded as a spouse's right.

2. In India, there are no legal provisions that define "marital rape".

3. Status of marital rape in India

• According to National Family Health Survey (NFHS-5) 2019-2021, nearly 1 in 3 Indian wonton age 18-49 have suffered some form of spousal abuse.

Arguments in favor of criminalizing Marital Rape

1.Violate fundamental rights: Marital rape exception violated right to autonomy and privacy under Article 21, Article 14 which guarantees the equal protection of laws, right to non-discrimination under Article 1511

2.Physical and Psychological effects: Women goes through physical problems due to marital flange that includes miscarriages, infections infertility and the chances of diseases like HIV, injuries to private organs, braises, tom muscles etc..

• Also, the psychological effects are shock, fear, stress, sural tendencies etc.

3.Women Safety: A high percentage of sexual assaults are committees not by strangers, but by persons familiar to the survivor and especially by spouses and partners.

4.International commitments: India is one of the only 36 countries where marital rape is still not criminalized, h damages India's global standing, as India is signatory to UN Committee on Elimination of Discrimination Against Women (CEDAW).

5.Rape is rape: In 2022, Karnataka HC refused to quash rape charges filed by a wife against her husband and said that Rape is rape, irrespective of the identity of the perpetrator, and age of the survivor.

6.A woman who is raped by a stranger, lies with a memory of a horrible attack a woman who is raped by her husband lives with her rapist

Arguments against criminalizing Marital Rape

• Misuse of law: Criminalizing marital rape could be missed to file false cases.

• Burden of proof Lack of evidence, like CCTV footage etc. to prove aged marital rape wed therefore, the burden of proof would be a difficult concept to apply in these cases.

• Breakdown of marriage institution: One of the main arguments to not criminality marital rape is that it would lead to the breakdown of the institution of marriage with wives falsely accusing husbands.

• Gender neutrality Rape definition is women centric and even if the exception of c section 875 is removed or criminal provisions are added to the Domestic Violence act, husbands will not be able to use those.

Right to Privacy: The criminalization of marital rape would violate the privacy of marriage by allowing the State into the bedroom and by definition, sex within marriage can never amount to rape.

Way forward

Adequate law: Women will be sale from abusive spouses, able to get the help they need to recover from marital rape and protect themselves from domestic violence and sexual assault.

• Further, the Commission on Human Rights suggested that marital rape should be criminalized

Ensuring justice: A proper framework/law should be developed to provide speedy justice to victims of martial a along with psychological assistance.

Awareness: There is urgent need to create awareness in society and bright ring attitudinal change among prosecutor and police officer.