– Mrudula Mohan, Amity Law School
India is the country which holds a lot of heritage and cultural values, and being a country that sticks on to its traditional values there are some customs are followed blindly for decades and there are those customs which have been modified and some abolished with tremendous efforts from the side of government as well as society. One of such customs or cultures followed by the entire world is marriage. India especially considers it as one of the most auspicious moments in one’s life. Marriage is an institution that admits men and women to family life. According to the words of Edward Westermarck, “marriage is more or less durable connection between male and female lasting beyond the mere act of propagation till after the birth of offspring” and according to Horton and Hunt “marriage is the approved social pattern whereby two or more persons set up a family”. But we Indians call it as an eternal bonding for 7 lives and so on. But what if the same so-called eternal joining turns out to be a nightmare. There are instances where some cruelties are not recognized by the law in the sense it has to be recognized. Rape after marriage is one of such circumstances.
Rape is one of the most heinous crimes in India. After 2013 there were several amendments related to such offences which includes fast track courts, identification reforms, and amendment to S.375 definition of rape etc., but none of the sections defines such circumstances when a husband forces sexual intercourse with his wife.
S.375 and S.376 of Indian Penal Code derives a narrow and strict definition of rape which limits its scope to the consent or will and penetration. Consent is an essential required to establish whether a rape has occurred or not even so there has been no conviction so far with respect to marital rapes. The most outrageous is the same is an exception under S.375 exception 2. In the year 2017 PILs have been filed to hold S.375 as unconstitutional with respects to the matters as mentioned above. The reluctance of the government to acknowledge rape after marriage as rape even after hearing repeated incidents of such injustices is due to the fact that such provisions can be easily taken advantage off and there would be minimal chances to prove the non-existence of a rape.
The mode for dissolution of Marriage under S.13 of Hindu Marriage Act, 1955 which talks about adulteration, dissertation, and inability to fulfil marital requirements and other cruelties as a means for seeking divorce has completely neglected the existence of marital rape to be tried as heinous crime. The centre has recognized such acts as a tool for harassment as in S.498A Anti-Dowry Harassment Laws. But the quantum of punishment varies in both aspects.
Delhi High Court headed by Justice Gita Mittal and Justice C Hari Shankar has recently taken up petitions filed by NGO both related to misuse of provisions related to molestation, rape and attempt to rape and marital rapes. S.122 of Indian Evidence Acts is useless as against such offences since the applicability has been limited due to the existence of exception 2 at present. The section provides such statements by one of the marital partner disclosing the communication after marriage to the court admissible only if one is being prosecuted against the other. The 172nd Law Commission report has proposed remarkable changes in the field of rape and laws pertaining to. According to which:
1. Rape was to be renamed a sexual assault
2. Rape of Male and Marital Rapes are to be considered equally serious in nature
3. S.375 is to be Redefined in the light of Sakshi Vs UOI
4. S.376E was recommended to be included as “unlawful sexual conduct” etc.
The reluctance by the government to enforce the same even after 17 years is not even being question by the society. It would be even more shocking to know the stereotype of the society to think such disgraceful acts to be normal merely because of the fact that the women is the wife of the man committing such an act.