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In India, a man can “sexually assault” his wife, for that’s what the Constitution of India states. India is one of the 36 countries in the world where marital rape is a crime yet to be criminalized. It is an exception that is carved upon in bold letters in the Constitution. According to Section 375 of the Indian Penal Code, a man commits rape only if he has intercourse with the woman without her consent or if she is a minor. However, Exception 2 to Section 375 states that “if sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” The concept of marital rape in India is the epitome of what is called in legal terms as “implied consent”. Marriage according to Indian culture means that a man and woman are married and both have given their consent for sexual intercourse. Despite the Supreme Court of India and various High Courts are filled with petitions challenging the concept of “implied consent”. So far, there has been no actual result to it. The only success against this age-old discourse of “consent” came when the Supreme Court, recently, criminalized “forced sexual intercourse with wife between the ages of 15-18.” However, this sentencing has its own flaws as it gives rise to the question about the legal age of a girl to get married.

Looking deep into this seemingly tangled state of affairs, one gets to know that the Indian Penal Code(IPC) formed in the 1860s, didn’t accept a married woman as an independent legal entity. She was, rather, considered as a “chattel” of her husband, or in other words, she was a living, breathing piece of an object belonging to her husband.  As a result, she did not possess any of the rights now guaranteed to her as an independent legal entity, including the right to file a complaint against another under her own identity. The Exception 2 of Section 375, which essentially exempts the actions perpetrated by a husband against his wife from being considered as “rape”, is largely influenced and derived from this pre-existing doctrine which merges a married woman’s identity with her husband and doesn’t allow her to have an independent identity. The roots of this doctrine can be traced back to the times when the law was made, i.e. 1860s, when the British ruled the Indians. The laws that the colonial overlords formed during the 19th century were a direct reflection of the British laws and the Victorian patriarchal society which didn’t recognize men and women as equals, didn’t allow women to own property, and merged the identity of husband and wife, under the “Doctrine of Coverture”. India became independent and since then, more than 7decades have passed. The laws and regulations have changed, allowing women to have an independent identity and much jurisprudence in India is explicitly concerned with the rights and safety of women in the country. The plethora of laws passed since the start of the century protects the women of this country from the violence and harassment from their male counterparts, including “The Protection of Women from Domestic Violence Act”, and the “Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act.” However, the Exception 2 of IPC Code 375 violates the “Right to Equality” enshrined in the Article 14, as it discriminates against married women by denying them equal protection from sexual harassment and rape in the name of “implied consent”. This exception thus creates a division among the women on the basis of their marital status, where a married woman has no protection against the sexual harassment and violence perpetrated by her husband, while an unmarried woman gets protection against the sexual harassment and violence committed against her by a man.

In the infamous case of “Phulmoni Dasi”, an 8-year old girl died of excessive bleeding from the sexual intercourse she received from her husband who was in his mid-thirties by the time. The monster of a “husband” was convicted on the grounds of “causing grievous hurt by doing a rash and negligent act dangerous to life”, rather than on the charges of raping a minor and was punished with only a year of imprisonment. It was stated by the honourable court of justice that “The law, it is true, is exceedingly jealous any interference in matters marital, and very unwilling to trespass inside the chamber where husband and wife live together, and never does so except in cases of absolute necessity.” and “The branch of the law which has no connection with this case is the law of rape.” The two statements describe the most common perspective of judiciary and legislation. The Protection of Women from Domestic Violence Act, 2005 states that domestic violence includes among other things, sexual abuse, which includes any any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman’. However, the fallacy lies in the fact that this statement does not include the acts that are considered sexual abuse in nature. On the other hand, Section 375, Exception 2 states that a husband cannot be criminalized for sexual harassment of his wife, receiving immunity on the grounds of “implied consent”. Both the laws seem to be contradicting each other as both the laws are ambiguous and do not specify the acts that are to be considered as sexual abuse.

It took the legislators 127 years to rectify the mistakes committed by the imperialists during the hearing of the Phulmoni Dasi. A Public Interest Litigation(PIL) was filed in 2017 by Independent Thoughts, an organization working on child rights, questioning the constitutionality of Section 375 Exception 2. The litigation argued that the married girl was discriminated against the unmarried girl as the concept of “rape” is valid only for the unmarried girl but seemingly vanishes into thin air for the married girl if the crime is committed by her “husband”. The problem lies in the fact that “the concept to marriage” and “the concept to sexual intercourse” are two completely different concepts and not synonyms and cannot be, under any circumstances be used interchangeably. Any woman above 18years of age, with a sound mind, can easily understand the act of someone sexually assaulting her and thus the need to reform the old laws to protect the married woman above 18years of age from sexual harassment of any kind.

The need to change the laws lies with the change in society. The need to change the age-old patriarchal, conservative mindset of people, the freedom to choose partners instead of “arranged” marriages, and the family structure are some of the major factors to this. Section 9 of The Hindu Marriage Act, 1955, has been a hot topic of debate for years now. The idea that a spouse can, legally, demand sexual access to the other spouse has been more than often used against married women. This is one of the concrete pieces of evidence about how little a woman’s consent matters in the institution of marriage. In case one such unfortunate incident occurs, the families intervene and the spouses are asked to reconcile and dissolve their “misunderstandings” as Indian families are more concerned with “what society will say” rather than the re-victimization of their ward by the perpetrator.

The time has come now, to reform the age-old laws prevailing since colonial times. In the case of marital rapes, where the victim is mostly the “wife” faces a double-edged sword where she has to question the one she has loved and respected for years and respect the family structure while also not letting the “image” of her family not getting degraded in the eyes of a society which though claims to be equal is grossly “patriarchal”. The need to understand that “rape” is “rape”, irrespective of the marital status of the woman, is very essential. The need to make society understand that “consent” matters, is important. The need to make people understand that sex is a need, and not a taboo, and definitely not a topic to be ashamed of, is important. The introduction of “Sex Education” in the school curriculum as well as teaching the kids from a very young age that “consent” is very important is of utmost importance. The idea that men and women deserve equal rights and should be presented as equal in the eyes of law needs to be understood. Moreover, rules to prevent the misuse of such acts should be made so that people don’t take advantage of such laws and use it for their own wicked ways. The Indian legislation and justice system need to list out the acts that can be included under the term “sexual harassment” and make the necessary changes in the Indian judicial system so that a victim gets the deserved justice. Lastly, people need to fit it in their brains that just because two people are married, that doesn’t give one of them a right to coerce the other into an act of sexual intercourse and seek asylum on the grounds of “implied consent” based on “the institution of marriage”.

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