Marital rape

 

Statue

1. 375 IPC, 1860 - Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15y of age is not rape. 
2. Common Law Origin - Sir Mathew Hale CJ in History of Please of the Crown
1. the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot rectract.

Important Points

1. 375(2) IPC sexual intercourse b/w man and wife being a girl b/w 15-18 of age is rape?
1. Exception carved out in IPC creates an unnecessary and artificial distinction b/w married girl child and unmarried girl child and has not rational nexus with any unclear objective sought to be achieved.
2. Independent Thought Vs Union of India WP 382 2013 - J Madan B Lokur
2. 172 Report on review of Rape laws - the Law commission 
1. Increase marriage age from 15 to 16y for girls
2. the idea of remove 375(2) IPC was not accepted
3. 2013 - Report of Committee on Amendment to Criminal Law by Justice J.S Verma
1. Recommended removal of 375(2) IPC
1. Marital or other relationship b/w the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation
2. relationship b/w accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity.
3. fact that the accused and victim are married or in another intimate relationship may not be regarded as mitigating factor justifying lower sentence for rape
4. Report pointed out that the exemption for marital rape stems from a long out dated notion of marriage which regarded wives as no more than the property of her husbands
4. 2018 - Nimeshbhai bharatbhai Desai Vs State of Gujarat
1. Marital rape is serious matter though, unfortunately it is not attracting serious discussion at the end
2. A women is no longer the chattel-antiquated pracices labeled her to be. A husband who has sexual intercourse with his wife is not merely using a property , he is fulfilling a marital consortium with a fellow human being with dignity equal to that he accords himself. He cannot be permitted to violate this dignity by coercing her to engage in a sexual act without her full and free consent
5. Decriminalizing adultery
1. Lord Keith in R vs R - marriage is in modern times regarded as a partnership of equals and no longer one in which the wife must be subservient chattel of the husband.
6. Privacy Judgment 
1. Privacy also connotes a right to be left alone, it safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his / her life
2. Privacy protects heterogeneity and recognizes the plurality and diversity of our culture. 
3. while legitimate expectation of privacy may vary from the intimate zone to the private zone and from private to public arenas, it is most important to underscore that privacy is not lost or surrendered merely because the individual is in a public place.
4. Privacy attaches to the person since it is an essential facet of dignity of the human being.
7. State of Maharashtra Vs Madhukar Narayan Mardikar AIR 1991 SC 207
1. Even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes
2. so also it is not open to any and every person to violate her person as and when he wishes
3. she is entitled to protect her person if there is an attempt to violate it against her wish. 
4. She is equally entitled to the protection of law.