Can You File A Police Report For Marital Rape

Marital rape is as serious an offense as murder, culpable homicide, or rape itself. Medical data shows that marital rape has serious and long-term implications for women, reducing them to chattel to be used for man’s pleasure and comfort. Although there are few complaints about marital rape, it is crucial that the law recognises it as a criminal act. The politicians should recognize that in order to preserve the sanctity of the Constitution, the dignity of married women must be respected.

Legal provisions

The BNS section 63, has an exception clause that states that sexual intercourse or activities by a man with his own wife, who is not under the age of 18, are not considered rape. In India, rape within marital bonds is only considered a crime if the wife is under 15 years old, or if committed during judicial separation, with a milder punishment. Critics claim that this exemption reinforces the notion that a woman is required to meet her husband’s sexual desires, thereby violating her physical autonomy. They argue that the legal structure normalizes violence against women and undermines their agency.

The married women can claim civil remedies under the Domestic Violence Act of 2005. Any form of sexual abuse includes marital rape as well. It applies in cases of live-in relationships as well.

In India, married women beyond the age of 15 are not protected from sexual violence in the house. The IPC has randomly addressed marital rape. Sexuality-related rules support traditional moral beliefs and women’s lack of agency. Proponents of these laws argue that consent to marry includes an agreement to engage in sexual conduct. However, willingness to engage in sexual behavior does not necessarily imply agreement to sexual violence.

Estimates from the third (2005-06) and fourth (2015-16) rounds of the National Family Health Survey (NFHS) revealed that the prevalence of intimate partner violence (IPV) against women varies by state, ranging from 3% to 43%. The fifth round of the survey, performed in 2019-20 in over 637,000 sample households in 707 districts of 28 states and eight union territories, indicates that one in every three women in India aged 18-49 experiences domestic violence, with at least 5%-6% reporting sexual violence.

History of evolution of law relating to Marital Rape

In 2012, the Justice JS Verma Committee was charged with recommending amendments to India’s rape laws. They introduced legislation to add marital rape in the Criminal Law Amendment Act. Marriage should not be viewed as irrevocable consent to sexual actions. When determining if the complainant agreed to sexual activity, the victim’s relationship with the accused is irrelevant. This recommendation was not accepted.
The 2013 Criminal Law Amendment Act did not include marital rape in the IPC. The Act makes an exception for rape committed by a man on his wife over the age of 15. Only rape committed within a marriage while the spouses are living apart can be punished. The Act still considers the wife as the husband’s sexual property, rather than a person with the right to say ‘yes’ or ‘no’ to sex like any unmarried woman. This provision has to be reconsidered to protect women from sexual assault in marriage.

Case Laws

In the case of Sakshi v. UOI, 2014, the Supreme Court refused to entertain the petition, which was filed by the petitioner seeking interpretation of the term sexual intercourse. They requested to include all types of penetrative sexual assault within the rape. The court only directed to make the trial procedure in these cases more victim-friendly.
After this case, in 2017, one more case named Independent Thought v. UOI came. The petition was filed challenging the section 375 exception 2 of IPC. It was argued that the provision is violative of the rights of girls between the age of 15 – 18 years of age. The Court in this case held that Section 375 exception 2 is unconstitutional. If the husband has forcible sexual intercourse with the wife who is under 18 years of age then it would be considered a crime.
In the case of RIT Foundation v. Union of India, 2022, the judgment became a split verdict. Justice Rajiv Shakdher declared the previous law unconstitutional, arguing that the right to withdraw consent is vital to women’s right to life and liberty. Justice C. Harishanker dismissed the petition to criminalize marital rape, stating that the government must modify the legislation because the matter requires consideration of various aspects, including social, cultural, and legal.