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Author: Ayush Tripathi, II year of B.A. LL.B. (Hons in Adjudication and Justicing) from Maharashtra National Law University Nagpur

Co-author: Smriti Sharma, II year of B.A. LL.B. (Hons in Adjudication and Justicing) from Maharashtra National Law University Nagpur

Introduction to the problem

The topic that we are going to unravel today is often viewed in its simplistic form in which any sane human being would agree to the proposition that rape is an inhumane activity that needs to be abhorred and punished. We all would also agree to the proposition that an act of sexual assault or forced sexual intercourse between husband and wife is subject to condemnation and even legal sanction. The distinction between the viewpoints held by individuals holding differential stances on the topic of the infamous "marital rape" arises when the call comes for its criminalization, or in the legal sense, to remove Exception 2 under Section 375 of the Indian Penal Code. The major argument given by the plaintiffs in the case of RIT Foundation v. Union of India stems from the judgments of the supreme court itself in which it has been held that consent cannot be in perpetuity and that it can even be revoked in between of intercourse (which itself is problematic in nature but we shall be dealing with that in a different article) and by extension, it can be said that the consent cannot be in perpetuity in a marriage and the same laws should be applied to a husband as a stranger. Another argument presented is that the act of marital rape has been criminalized in other democracies around the world and hence India should follow suit. The flaws in the petitioner's argument are manifold. In the present article, we shall be dealing with such flaws and attempt to find a middle ground by proposing practical solutions to the problems ensuing with the removal of the exception of protection to marital rape.

Why the exception to Section 375 should not be removed?

Without much ado we ought to address the elephant in the room. If I am favouring the non-removal of the exception against marital rape what are the reasons for it? The reasons are mentioned herein.

To begin with, we need to understand that it goes against the very thread of society. What we need to have into perspective when we think from the angle of public policy is that law is essentially a social construct. We cannot enforce a law which goes against the public as a whole because a law which cannot be enforced is as good as no law in place. As Professor Shruti Rajagopalan of New York Universoty said that we need to take into account the cost of under enforcement of laws. She goes on to critique that in opposition ot the majority belief that a stricter law may cause more deterrence, in reality it may cause less deterrence because of the lower enforcement rates. Under enfrocement also leads to arbitrary enforcement and malicious prosecution. We need to keep these two terms into persepctive when we deal with the rest of the article. We shall get back to them at a later stage. Rajagopalan also states that the legislators eed to be practical in their framing of laws and instead of laws which look good on paper, we need to look towards making laws which genuinely make a difference on the ground realities. In a country like India where illiteracy is an epidemic, where people are not aware of their rights and obligations, bringing a law from the westernized socieities and applying it to the Indian familial set-up would result in a greater harm than ever envisaged.

After that, we need to understand that the criminalisation of marital rape shall result in adverse outcomes of marriages and will lead to a breakdown of marital institutions. The centre and the state government of Delhi aslo stated that the criminalisation will lead to the destabilisation of the marriage institution which rests on the very bedrock of trust and companionship. The institution of marital rape as a crime will only act as an instrument of duress against the men and will add to the tally of the fake cases burdening the courts with dismally low conviction rates. We live in a country where the protection of the institution of marriage is of utmost importance, right now the act of sexual abuse against women can be penalised under the Protection of Women from Domestic Violence Act (“PWDVA”) Section 3(a) which encapsulates sexual abuse into the category of violence for the purpose of PWDVA. Attention has to be drawn that when we classify marital rape as an offence under Section 375 of the IPC we make it a non-compundable offence thereby removing any chance of compromise between the partners and thereby defeating the very basis of laws regulating marital affairs in the country.

In addition to the above, we also need to consider the question of influx of fake cases and the havoc which will be created by them. The above statement has not been made arbitrarily. We have data at hand which shows the conviction rates in the cases related to Section 498A and The Dowery Prohibition Act are dismally low being 12.1 % and 15% respectively. We also need to note that the punishment under Section 498 is 3 years and for dowry it is 2 years at the maximum. The arrests in offences having punishment below the limit of 7 years are governed by the Arnesh Kumar Guidelines given by thhe apex court which lays down that the arrests have to be an exception and due inquiry should be done when the punishment is less than 7 years. It does not take much to connect the dots that if marital rape is criminalised all the false cases which arefiled under numerous sections will boil down to a single section which will be Section 375 as the punishment in the particular section is over 7 years hence it will lead to immediat arrest and will become the perfect instrument of torture. Another thing to steel man the argument is taking into perspective the Phool Singh v. State of Madhya Pradesh case in which the apex court laid down that only victi testiimony is enough for conviction is cases related to rape. When you take a step back and see the whole picture it only points towards the blatant misue of the protection given to women for material gain.

The problem of probable misuse of the protection brings me to my next contention which is the belittling of actual rape victims. Consider the situation when the courts are flooded with Section 375 cases, what will the reaction of the society be? It will be a loss of sentiment towards the actual victims because as soon as the rare becomes the routines the view of people towards it changes and hence this activism for laws against marital rape could be self-sabotaging. The influx of false cases will dis-credit the real cases. We can even see it happening with 498A cases. People now have a default view that there might be some foul-play involved. If we criminalised marital rape, this is what will the situation of Rape in general. This is how the human society works.

Finally, when we look at the call for criminalisation of marital rape, we find that what they are focussing on is not the benefit of the common women of the country but that on the change in the system which causes more harm than good. In a developed country like Canada 70% of the cases relating to sexual offences go unreported, contrasting to this the plaintiffs in the RIT Foundation cases feel that in a country like India, where we have so much iportnace places on the family as a whole, the marital rape cases will get reported which is like them not addressing the situation that the said act of coriminalising it is not in consonance with the mental aptitude of thenation currently and its benefits will go missing among the very loopholes which we cannot fill at the moment which will result in a catastrophe.

Probable solutions to the problem at hand

The problem we deal wiith is an intricate one. On one hand where it is correct that forceful sexual intercourse desrves to be a crime regardless of the status of the women involved we cannot be deaf to the ground realities in our nation. However there are some solutions we can seek to implement before the act of marital rape can be criminlaised to prevent the blatant misuse.

To start with, we need to explore the arguments of the plaintiffs in the RIT foundation case. We see that the argument that other countries have criminlaised marital rap while India has not is an argument which is often thrown at botht the judiciary as well as the legislature. When the petitioners quote such laws, they forget or take for granted the strong protections these developed counties have against perjury, false accusations and malicious prosecution. In India, neither of this is strictly present. When was the laws time any of us heard a man getting any compensation for being falsely accused of rape? On the other hand all of us remeber the case of Manav Singh a seventeen year old teen who committed suicide after he was falsely accused and bullied for rape. If we want this gross miscarriage of justice to stop we need to have a strong system which protects the accused till they are convicted and offers them a chanel for relief if they are acquitted because a reputation lost never comes back while the false accusers get to live their lives normally. We cannot ignore the ground realities and the patterns so vividly in front of us while deciding laws for the nation. We need to have strong perjury laws and laws to punish people who are guilty of falsely accusing other individuals.

Furthermore, When the petitioners in the RIT Foundation case quoted the laws in other nations being neutral on the marital status of the victim when considering rape, they failed to mention that each of those countries also has a gender neutral treatment of rape which gives equal opportunities to men and women to voice those opinions if they are victims of sexual abuse. A research sruvey conducted by Insia Dariwala found that out of the 1500 surveyed men 71% of the men agreed to have been sexually abused . India, despite having such rates of male abuses, does not considers the propostition that males can be raped by females as the Section 375 only lays down the rape of a woman by a man. When we talk about the gender neutrality of the laws historically they have been criticzed by the feminist movement leaders like Catherine Mckinnon, Patricia Novotny and Nagire Naffaire. The gender neutral laws have been criticzed because the above mentioned leaders though they could dilute the attention to the rights of women. Another idea that somehow gender neutral laws would lead to the ill-effects to the idea of female victim hood were given by the leaders like Christine Boyle. The detailed discussion between feminist movement and the gender neutral laws is beyond the scope of this article.


As mentioned earlier, the issue at hand is nuanced and should not be dealt as a simplistic one because if it is done so then the society at large will see the detrimental effects it will have. We need to elaborate fill in the loopholes before we bring about a law which removes the second exception to the offence of Rape under the Indian Penal Code. It is not the question of for or against nut the question to raise against the injustice and the probable miscarriage of justice. This is in no way to say the victims of sexual abuse should not be given the remedies under the eyes of law but to say that until appropriate checks and balances are established it is in the benefit of the general populace to postpone any such law. We also should divert the attention of the activists towards the appropriate documentary Martyrs of Marriage in which Deepika Bharadwaj has covered various case studies which highlight how the loopholes regarding sexual offences are miused on a daily basis. The fundamental question that we ought to answer is that whether a mere creation of a law will facilitate the need of justice or whether wee need to create the mechanism which stops its misuse first? Ends dont justify the means. We need to understand that the petitioners and the respondents need to walk in each others shoes on this issues and understand the dilemma we are in. The petitioners need to understand that the environment and the legal frame work is not cohesive to make reforms at the moment and the respondents need to understand that the correct legal frmaekwork and suitable checks and balances are needed in order to bring about legal reforms long overdue.

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