The women’s life from cradle to grave is full of challenges. They have been victims of offences like female foeticide, female infanticide, dowry death, trafficking, acid attack, sexual harassment and rape. Among this rape is heinous offence committed against women’s privacy, dignity and bodily integrity. Marital rape is its species. In marital rape, the husband commits sexual intercourse upon his wife either against her wish or without her consent. In India marital rape has been in existence since time immemorial. Indian society has never considered marital rape as a problem because the husband has been accorded with the status of a master who enjoys privileges over her body.
As taught in legal study in West Bengal, Exception 2 to Section 375 of the Indian Penal Code,1860 provides that the sexual intercourse by a man with his own wife does not amount to rape if the wife is above fifteen years. This provision was challenged in Independent Thought vs. Union of India wherein the honourable Supreme Court of India held that sexual intercourse with a woman whose age is below eighteen years amounted to rape, irrespective of her marital status. Presently, the law is silent over the issue of marital rape in case the wife is above eighteen years. The aggrieved wife can either approach the court of law under the Protection of Women from Domestic Violence Act,2005 or Section 498A of the Indian Penal Code,1860. But both the legislations impose lesser quantum of punishment as compared to the rape laws.
Non-criminalisation of marital rape is a gross violation of the fundamental rights of a married woman like Article 14, 15 and 21 of the Constitution of India. As taught in 3-year LL.B. Course in West Bengal, Honourable Supreme Court of India held that women have a right to privacy, bodily integrity and dignity. It’s high time that the Indian Parliament should think over criminalizing marital rape because the Parliament had already penetrated into the domestic affairs of the individual citizen by enactment of legislations like the Protection of Women from Domestic Violence Act,2005 as well as incorporation of Section 498A in the Indian Penal Code,1860. The Parliament had enacted legislations to curb out social evil of sati and child marriage which had a direct nexus with customs and usages.
To rule out the apprehension of false and frivolous cases, every complaint of marital rape should be recorded by a female police officer, not below the rank of an inspector. Within seven days of lodging of the complaint, preliminary inquiry should be conducted. If there are reasonable grounds the husband should be arrested and prosecuted under the rape laws. In the case of marital rape, there are lesser chances of direct evidence, the prosecution should rely on the circumstantial evidence. The prosecution can also take the help of psychologists to assess the mental state of aggrieved woman. The police officials should be sensitized regarding the procedure as well as handling of marital rape cases. The aggrieved women should not be subjected to undue harassment by the police officials. Lastly, the government should focus on female literacy and organizing legal awareness programmes for the women. Unless and until the women are aware of their rights, they cannot fight back.
