Section 375 of the Indian Penal Code (IPC), commonly known as ‘The Marital Rape Exception’, defines the offence of rape (sexual intercourse by a man, against a woman’s will or consent). The circumstances that determine the that consent has been debauched (e.g. blackmail, intoxication, and so on) are listed here. The exception to this section, however, states “sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape.”
This section plainly depicts that even if the offense committed by the man matches all the categories that pronounce it as rape, it would not be considered so if the victim in question is his wife and above the age of 15.
The Marital Rape exception is a well-catalogued version of the 19th century mentality that created it, i.e. the act of marriage brings with itself, a number of obligations along with sexual obligations which apparently exist independent of the woman’s will or consent. That view is highly repulsive and totally contradictory to our ideals that define a healthy relationship.
The marital rape exception as a loophole
The Supreme Court has often pointed out the fact that equality requires us to reject norms and laws that are founded on gender stereotypes. This Marital Rape exception is not only derogatory and discriminatory towards women, but also totally irrational. Professionals point out the loophole in this law as, “If a sexual offense has been committed exactly ten minutes before marriage, it would be considered as rape, but if it is committed ten minutes after marriage, it would be not.”
A sexual assault will be officially considered rape if it is committed in a live-in or any kind of intimate relationship, but marriage somehow provides it a legal licence.
Arguments and counter arguments against making Marital Rape a criminal offence
The main duty of our constitutional courts is to strike down arbitrary and discriminatory laws, so one would assume that the solution to this case in discussion would be an uncomplicated task but unsurprisingly, several arguments have been added against it.
First, people argue that “making marital Rape a criminal offence will result in the creation of a new criminal offence, which is a job entrusted to the parliament, not the courts”. It would not, actually. In fact, it would eradicate an unconstitutional loophole that a section of sexual offenders were unlawfully using as a shield so far.
Second, people have presented a plethora of possibilities that this judgement could trigger. For example- possible future constitutional challenges will eventually turn on the judiciary to rewrite a whole set of criminal laws beginning from questions raised about making rape a gender-neutral offense. That is, however, a discussion centred on legal policy and our understanding of gender, consent and power and they do not involve the direct discriminatory nature of the marital law exception. The Marital Law exception can, therefore, be struck down without any legal inconsistencies while the question of gender-neutral rape laws can be transferred to the parliament.
Finally, there’s the question of proof and evidence. Unlike any other kind of intimate relationship where the court can actually shift through various evidences in the intimate settings, the generation of proof and evidences in marriage is naturally an almost unsolvable problem.
In the end, The Marital Law exception send out an inherent message to the world that Marriage provides a legal immunity to sexual offenders and that for women, marriage takes away the right of saying ‘NO’.
For that reason alone, the court should strike the discriminatory, irrational law down from the pages of our constitution.
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