{"id":185588,"date":"2022-05-20T20:32:10","date_gmt":"2022-05-20T15:02:10","guid":{"rendered":"https:\/\/blog.forumias.com\/?p=185588"},"modified":"2022-05-20T20:32:50","modified_gmt":"2022-05-20T15:02:50","slug":"on-marital-rape-regressive-notions-undermine-autonomy-of-women","status":"publish","type":"post","link":"https:\/\/forumias.com\/blog\/on-marital-rape-regressive-notions-undermine-autonomy-of-women\/","title":{"rendered":"On marital rape, regressive notions undermine autonomy of women\u00a0"},"content":{"rendered":"\n

News<\/span><\/b>: Recently, two judges of the Delhi High Court handed down separate judgments on the constitutional validity of the \u201c<\/span>Marital Rape Exception<\/span><\/b>\u201d under<\/span> Section 375 of the IPC in <\/span>RIT Foundation v Union of India Case<\/span><\/b>.\u00a0<\/span>\u00a0<\/span><\/p>\n

What is the law?<\/span><\/b>\u00a0<\/span><\/h5>\n

Section 375<\/span><\/b> defines \u201crape\u201d as when a man has sex with a woman without her consent. However, a husband having sex with his wife, regardless of consent, is not construed as marital rape. The husband can\u2019t be prosecuted for the rape of his adult wife.<\/span>\u00a0<\/span><\/p>\n

Argument in favour of the marital rape exception by one judge<\/span><\/b>\u00a0<\/span><\/p>\n

First, Sex within marriage has been carved out (by exception) from the definition of rape. Only in the absence of that exception, non-consensual sex within marriage would be seen as a rape.<\/span>\u00a0<\/span><\/p>\n

Second, the marital rape exception is constitutionally valid. This is because the marital rape exception was \u201caimed at preservation of the <\/span>marital institutio<\/span><\/b>n, on which the entire <\/span>bedrock <\/span><\/b>of society rests\u201d.\u00a0<\/span>\u00a0<\/span><\/p>\n

Third, the martial rape exception should prevail because the <\/span>impact<\/span><\/b> on a woman who is raped by her husband <\/span>cannot<\/span><\/b> \u201c<\/span>be equate<\/span><\/b>d with the impact of a woman who is raped by a stranger\u201d.\u00a0 The \u201c<\/span>disagreements\u201d<\/span><\/b> in marriage are \u201cbut <\/span>natural<\/span><\/b>\u201d and \u201cmay even <\/span>lend<\/span><\/b> strength<\/span><\/b> to the <\/span>marital bond<\/span><\/b>\u201d.<\/span>\u00a0<\/span>\u00a0<\/span>\u00a0<\/span><\/p>\n

Fourth, at present, \u201c<\/span>majority of Indian women\u201d<\/span><\/b> are reluctant to file a complaint of rape against their husbands. There will be tens of thousands of rape complaints after the marital rape exception is declared unconstitutional.<\/span>\u00a0<\/span><\/p>\n

Fifth, the court is <\/span>not empowered<\/span><\/b> to create a <\/span>new offence<\/span><\/b>. It means the court is not competent to <\/span>strike down<\/span><\/b> the marital rape exception that has already been carved out of an existing offence in the law. It would be unfair to punish someone for rape for conduct that was excluded from the definition of rape when it was undertaken.\u00a0<\/span>\u00a0<\/span><\/p>\n

Argument against marital rape exception
\n<\/span><\/b><\/h5>\n

The marital rape exception is in violation of the <\/span>rights to life<\/span><\/b>, <\/span>equality<\/span><\/b>, <\/span>non-discrimination<\/span><\/b>, and <\/span>freedom of speech and expression<\/span><\/b> which are guaranteed under the Constitution of India.\u00a0<\/span>\u00a0<\/span><\/p>\n

There is no reasonable basis to distinguish between <\/span>married<\/span><\/b> and <\/span>unmarried women<\/span><\/b>. Marriage is a relationship of equals. The marriage does not lead to giving up of agency and <\/span>sexual autonomy<\/span><\/b>.<\/span>\u00a0<\/span><\/p>\n

The institution of marriage cannot be preserved at all <\/span>costs<\/span><\/b>. For example, when a man has non-consensual sex with his wife.<\/span>\u00a0<\/span><\/p>\n

If a woman is raped by someone in whom you have <\/span>reposed<\/span><\/b> trust<\/span><\/b> is likely to have an <\/span>indelible<\/span><\/b> emotional impact<\/span><\/b>. It is difficult to understand how non-consensual sex can ever strengthen a marriage.<\/span>\u00a0<\/span><\/p>\n

Even if a woman is reluctant to file a case, it does not mean that the woman should be <\/span>disempowered<\/span><\/b> to do so by the operation of the law.\u00a0<\/span>\u00a0<\/span><\/p>\n

Way Forward<\/span><\/b>\u00a0<\/span><\/h5>\n

The court should declare that its judgment will apply only to conduct <\/span>after<\/span><\/b> the <\/span>date of the judgment.<\/span><\/b>\u00a0<\/span><\/p>\n

The <\/span>Parliament<\/span><\/b> should revisit the marital rape exception. This would be the path of least resistance.\u00a0<\/span>\u00a0<\/span><\/p>\n

It is incumbent on courts to take decisions concerning <\/span>complex social issues<\/span><\/b>. As the marital rape exception violates <\/span>fundamental rights<\/span><\/b> under the Constitution of India. Therefore, it falls within the <\/span>Court\u2019s core competency<\/span><\/b>.<\/span>\u00a0<\/span><\/p>\n

Source<\/span><\/b>: The post is based on an article \u201cOn marital rape, regressive notions undermine autonomy of women<\/strong>\u201d published in the Indian Express<\/strong> on 20<\/strong><\/span>th<\/strong> May 2022<\/strong>.<\/span>\u00a0<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

News: Recently, two judges of the Delhi High Court handed down separate judgments on the constitutional validity of the \u201cMarital Rape Exception\u201d under Section 375 of the IPC in RIT Foundation v Union of India Case.\u00a0\u00a0 What is the law?\u00a0 Section 375 defines \u201crape\u201d as when a man has sex with a woman without her… Continue reading On marital rape, regressive notions undermine autonomy of women\u00a0<\/span><\/a><\/p>\n","protected":false},"author":10328,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"footnotes":""},"categories":[1230,9],"tags":[263,10500],"class_list":["post-185588","post","type-post","status-publish","format-standard","hentry","category-9-pm-daily-articles","category-public","tag-gs-paper-1","tag-indian-express","entry"],"jetpack_featured_media_url":"","views":{"total":0,"cached_at":1700811031,"cached_date":1704714509},"jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/posts\/185588","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/users\/10328"}],"replies":[{"embeddable":true,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/comments?post=185588"}],"version-history":[{"count":0,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/posts\/185588\/revisions"}],"wp:attachment":[{"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/media?parent=185588"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/categories?post=185588"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/tags?post=185588"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}