Marital Rape: Why is it still legal?

Section 375 of Indian Penal Code 1860 defines rape as non- consensual sexual intercourse with a woman. One of the exceptions to this Section is if the man has sexual intercourse with a woman who is his wife above the age of 18 then it does not come under sexual assault. This clearly means that as per current law, if the woman is having sexual intercourse with her husband then it is presumed that the woman is doing it with her consent. India is one of the 36 countries in the world to not have criminalized marital rape. Even after 70 years of independence Indian law is still unwilling to accept marital rape as a crime under Section 375. Its very unusual that on the one side we have a judgment stating Triple Talaq as unconstitutional and the right to privacy judgment but on the other side we have a mindset wherein a husband raping his wife is not considered a crime but in fact it is presumed to be consensual. 

In The Chairman, Railway Board v. Chandrima Das (2000), the Supreme Court held that rape does not merely violate standard right of a person but gravely violates fundamental rights entrusted to a person. Rape is a crime against the entire human race. It violates the most important right of a person which the right to live with dignity within the ambit of Article 21.

In Bodhisattwa Gautam v. Subhra Chakraborty (1995), the Supreme Court held that offence of rape violates Article 21 and provided certain guidelines for compensation to be awarded to the victim.

The above landmark judgments have held that marital rape as violative of the right to live with dignity under Article 21 of Indian Constitution. It seems that the Indian judiciary cannot accept the fact rape can occur in marriages and that the dignity of the woman can be restored if she gets married to her rapist. Even though this is highly preposterous but still the judiciary have a turned blind eye to this fact.

Article 14 of the Indian Constitution grants right to equality before the law and bars any discrimination. Marital rape distinguishes the wife from getting protection from rape therefore it violates Article 14 which provides for non-discrimination. The IPC was drafted at a time when a married woman was said to have no legal rights of her own. Her legal rights were subsumed by those of her husband under the Doctrine of Coverture. The genesis of this doctrine can be traced back to the British rule where such patriarchal rules existed. Men and women were not recognized as equals. Most Indian laws are heavily influenced by the British and Victorian laws. The definition of rape was also drafted on the basis of Victorian patriarchal rules and combined the identities of both the husband and wife. 

But with changing times women have carved their own identity separate from their husbands. They no longer depend on them for basic needs. Women have become emotionally and financially dependent and therefore do not need any man to lead their lives with. Many laws are being drafted explicitly regarding protection of women in this country. 

It is appropriate to state that in the absence of law there is no numerical data in the cases of marital rape being reported. This is the era where many legal reforms regarding equal rights to women are being made and therefore it is high time that marital rape be also considered a crime as it violates the chastity of marriage wherein a woman leaves her parents' home and adapts herself to a whole new household. New reforms regarding marital rape is far from real as the lawmakers are not ready the bridge the gap between rape and marital rape even though they both are really evil crimes as they scar the woman's soul for life.