Introduction
Our country is considered to be an ancient civilization where rights and duties are considered as basic fundamental features of the life of its citizens. In 1860, Lord Macauley drafted the greatest penal provision extending to the whole of the country. Several offences were penalized and adequate punishment was given to offenders.
In 1950, we got our pious constitution where the Right to Life was considered a fundamental right and through its varied and thought-provoking interpretations, we amended ourselves and the lives of citizens became more achieving and we again are on the pedestal of being one of the great civilizations. In our country, matrimony is regarded as a sacrament rather than a contract. Although Muslim marriages are in the form of contracts, still it is considered very pious and much like a sacrament if not exactly. From our ancient text, we get a fair idea of how two persons are considered as one but there is no penal provision either in ancient or modern provisions that penalizes the crimes that happens in marriages.
Advancement in intellect as well as in crimes
As laws and technology and then globalisation reserved a special place in the lives of citizens, several offences against women and children also started aggravating. They took its brutal shape in the form and rape, gang rape and other bodily offences. We got an amendment to IPC in the year 2013 after the brutal gang rape case in our capital city where the punishment for rape was also made stringent we still are modifying our IPC and now we are in the era where we will get our own penal provision under the name of Bharatiya Nyaya Sanhita.
A greater void left
While dealing with rape and other offences and trying our best to remove this heinous crime from our society, our legislature as well as judiciary has completely forgotten the domain of rape that is happening inside our homes that is underreported. Marital Rape is one of the worst forms of rape where no remedy lies in the hand of victims and nobody is ready to help them even if the person has the right to life under Article 21. It is a huge violation of the equality code where just because of one's marital status, the married person is treated discriminated while applying the penal provision. If the rape is committed by any random person, then that person will be tried under section 375 of IPC, but if the rape is being committed by one spouse over the other, then no penal provision is there. The only area where IPC is accepting rape inside the marriage is when both the spouses are in the decree of judicial separation and then one spouse has committed rape on another, then only they are getting penalized under section Section 376B which states that:
Section 376B. Sexual intercourse by husband upon his wife during separation.-
Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine?
The only question that comes to my mind is why marriage is regarded as giving implied consent to one spouse to have forceful sexual intercourse with another even without consent and there is no remedy just because they are married?
It is also contended that, if spousal rape is penalized then it will open floodgates of cases where false allegations will be at their peak.
While enacting the Domestic Violence Act for women, the same contention was placed, but if we see the condition today, so many perpetrators were held liable for domestic violence.
The main problem which I believe exists today is that the word 'consent', is widely not accepted due to the patriarchal nature of our society. We are still living under the realm of false masculinity and patriarchy, where we are not ready to accept the crimes against women. For ex: when there was a movement to remove the Sati Pratha and purdah system, then also due to cultural, religious and other grounds, it was criticized and opposed heavily.
What can be the remedy?
I believe that the basic reason for not penalizing such an act is lack of evidence as it happens inside closed doors so it is the testimony of the spouse only, that is the evidence. However, I believe that forensic science in the form of DNA, odontology and other forms can be of great help to aid the testimony of victims.
Another contention is regarding the false accusation of the spouse against another. I believe that instead of using malicious prosecution to curb it, there should be stringent provisions if it is proved beyond reasonable doubt that the spouse was implication false charges against the other.
Lastly, I believe that our society needs to be more welcoming and understanding which will come through proper education that is just not limited to education but extends to intellectual development and more acceptance.
Conclusion
In our country, there is a need to do research as well as debate about marital rape as it is very normal to rape one's spouse in lieu of marriage. Marital alignment is a very sacred institution that needs to be protected and respected. exemption clause under section 375 and provision under 376B are arbitrary and are against constitutional morality and article 14 as well as article 21. There is a need to reform these provisions and improve the grey area of the penal provision.
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