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Some eventualities of ‘marital rape’ provisionAt the very onset, we have to acknowledge that without consent, a sexual act with one’s wife is not only traumatic but also violative of some of the most cherished privacy concepts of an individual/wife. Having said so, let us try to visualise the practical and some probable unwarranted outcomes in case the court declares Exception-2 to the section 375 of the IPC as ultra vires and violative of Article 14 & 21 of the Constitution of India (i.e. Equality before law & Protection of life and personal liberty) and strikes down the same.Immediately, the legal standing of husbands who otherwise have been exercising certain privileges and social sanction, shall be relegated to the status of a complete stranger and here lies the plenary debatable questions which need to be addressed before such striking down of Exception-2 to section 375 IPC by any court of law.Some of the issues, which are not at all moral, behavioral and societal and which on the contrary are purely legal, which need to be addressed before such a position is held, inter alia, are:1. Would the single act of ‘rape’ of his legally wedded wife by a husband be sufficient to attract the offence of ‘rape’ or more than one instance of such willful violation of the bodily integrity of the wife by a husband will constitute rape? And if it is more than one instance, then a question arises: what is the necessity to strike down Exception 2 to the section 375 of the IPC? Why can’t it be dealt with in another manner, without invoking the provisions of the very heinous offence of ‘rape’?2. Would it not be a heavy handed and draconian approach to deal with an issue which at the core and fundamentally a societal and perceptual issue? Is it not the issue more of lack of gender sensitization in a society like India, which is deeply patriarchal and where boys are never made to understand the sensitivities of girls particularly when it comes to respect and recognition of bodily autonomy and significance of clear “no” of a girl and the seriousness of “no” even by his wife post marriage to anything, including withholding her consent/ “no” for any sexual activity by her husband?If it is so, then what is the pressing requirement to immediately and suddenly strike down Exception 2 to the section 375 of the IPC that too without any debate by the society which ultimately has to face the consequences i.e. to say, weakening of the institution of marriage and enhanced real or unreal instances of litigation?3. Would a complaint by a wife against her husband alleging “rape” would attract the same rigor of law as it is in case of “rape” by a stranger? And if the answer is no, it will be a little less harsh, then the question arises as to why first declare the action by a husband and bracket it in the category of “rape” and then not treating and punishing the accused as a rapist strictly in terms of section 376 of the IPC, which maintains the punishment for rape.4. In pure and simple cases of rape, other co-accused can be tried and punished for abetment of rape. What if a wife alleges that the mother-in-law, father-in-law, sister-in-law, brother-in-law and other relatives of the husband instigated rape upon her? Will they be jointly tried and punished for abetment?
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Equating non-consensual marital sex with rape in penal code may lead to unravelling of institution of marriage
