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Current Affairs

Debate over marital rape

Date: 21 January 2022 Tags: Bills & Laws

Issue

The immunity provided to marital rape in Indian Penal Code is being challenged in Delhi High Court on grounds of constitutional validity.

 

Background

Marital rape is currently exempted under Section 375 of the Indian Penal Code that deals with rape. 

 

Details

The case will be analyzing issues related to consent, control of state over female sexuality and also historical injustice.

 

Section 375

  • The Section 375 gives a list of seven conditions for consent. Violation of any of the conditions constitutes rape.

  • This section has a exemption saying “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”

  • This exemption basically gives right to a husband to perform consensual or non-consensual sexual intercourse with the wife with legal sanction called marriage.

 

Reasons for the exception in law

  • The colonial era notion that a woman is a property of a man and he has the right to exercise his rights over her body, including non-consensual sexual intercourse.

  • Since institution of marriage is associated with procreation, the husband has a reasonable expectation of sex in a marriage, which the wife cannot deny.

 

Arguments for removal of immunity

  • Marital rape violates fundamental rights of right to equality, the right to life with dignity, personhood, sexual, and personal autonomy.

  • The classification between a married and unmarried woman takes away the right of a married woman to give consent to a sexual activity.

  • Petitioners say that provisions for legal immunity were inserted before the Constitution came into force and thus can be presumed as unconstitutional.

 

Challenges and concerns

  • There will be a need to protect men from possible misuse of law by wives. There is also a challenge of protecting the institution of marriage.

  • The government also says that there are other provisions in the law to protect women from non-consensual sex such as filing for divorce or a case of domestic violence.

The JS Verma committee

The Verma committee was formed in 2013 after the heinous Delhi Gangrape incident. The committee recommended removal of blanket immunity to marital rape.