Marital Rape can be understood quite simply as the unwanted or unconsented sexual intercourse between a man and a woman that is obtained by virtue of physical harm, force or threat of mental or physical harm.
The only persisting legislation in the Indian Penal scenario is that of the archaic provisions of Section 375, which talks about rape. According to this provision, section any sexual intercourse that is done by a man with his wife does not amount to rape. The proviso to this section being that the wife is not below the age of 15 years. The punishment to rape is ordinarily imprisonment of not less than 7 years and shall extend to 10 years or life imprisonment. The rapist may also be fined but the only exception being that the intercourse is out of a marital alliance.
And hence, due to inability to change the preexisting position of the archaic penal code of the country, marital rape continues to remain unrecognized as an offense in India. However, it is illegal in New Zealand, Canada, and nineteen States of America, Czechoslovakia, Sweden, France and a few states of Australia as well.
Presently the only vague recourse that women have is Section 498-A of the Indian Penal Code, which deals with cruelty relating to the perverse sexual conduct of the husband. However, this provision continues to remain exceptionally vague and subjective, the penalty for the same not being as rigid as usual rape or perhaps its more grave form, marital rape.
Certain recommendations were made by the 172nd Law Commission regarding the few changes that can be made to the penal provision relating to rape –
- The term ‘Rape’ should be made wider and replaced with ‘Sexual Assault’
- Sexual intercourse as specified under section 375 of the IPC should be made a wider term, it should include all forms of penetration.
- Under 376E a new sexual offence should be added titled ‘unlawful sexual conduct’
- Explanation (2) of section 375 of IPC should be deleted and sexual intercourse forced upon the wife by the husband should be given equal weightage when considering it as an aspect of rape. Under similar rationale section 376 A should be deleted