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In a legal sense, marital rape was oxymoron unless the situation was changed by the women movements in the late 20th century. Earlier, marital rape was legalised around the globe. Now, more than 50 countries have criminalised the marital rape and still, India is one of those 36 countries which have not criminalised the marital rape. (1) In India, non-criminalisation of the marital rape comes from the Exception 2 of Section 375 of the Indian Penal Code, 1860 (hereinafter, IPC, 1860). Exception 2 of Section 375 of the IPC, 1860 (hereinafter, exception 2) states that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” However, the Supreme Court extended the age limit, mentioned in the exception 2, to eighteen years in the case Independent Thought v. Union of India. (2) The Court held the exception 2 to be arbitrary, capricious, whimsical and violative of Article 14, 15 and 21 of the Constitution of India.
RAPE AND MARITAL RAPE
What is rape? The definition of rape is not universal or which is applicable in all the countries. Some definitions make the ejaculation as a condition for rape where some define rape as any sexual intimacy forced on one person by another. Here, in this article, rape is used in the same sense mentioned in Section 375 of the IPC, 1860.
“Marital rape”, exemption from the crime of rape, the first time, legally documented by Sir Matthew Hale in the History of the pleas of the Crown in 1736. Marital rape is seen or defined as the forceful carnal knowledge by a husband on his wife. Earlier, the crime of rape was the crime against the property because a wife was considered as the chattel of a husband and how a man can commit a crime against his property? This meaning started to change when women rights were getting recognised and well established. Now, the crime is seen as a violation of the rights of woman. Union of India, in Independent Thought v. Union of India, (3) contended against the criminalisation of the marital rape as it can dismantle the institution of marriage in the country. One more view favouring the non-criminalisation of marital rape, although ridiculous, is that wife has consented to the sexual intercourse in the marriage and the same cannot be revoked.
WHAT SHOULD BE THE STATUS OF MARITAL RAPE?
Criminalised or Non-Criminalised. A view can be formed at the end of this article. Firstly, when a human suffers or feels victimised then something is wrong either with that being or with the law but when a particular group of being feel victimised then there is more probability of the law to be wrong or have some shortcomings. But now many questions can be raised on this view like whether laws should be changed according to