Whether Marriage is a license to rape?

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Section 375 of Indian Penal Code defines Rape, “A man is said to commit “rape” if he—

  1. Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
  2. Inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
  3. Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any of body of such woman or makes her to do so with him or any other person; or
  4. Applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

Under the circumstances falling under any of the following seven descriptions:—

1. Against her will.

2.Without her consent.

3.With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

4.With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

5.With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.

6.With or without her consent, when she is under eighteen years of age.

7.When she is unable to communicate consent.

There are a few exception to the rules:

Exception 1—A medical procedure or intervention shall not constitute rape.

Exception 2—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”[1]

Under section 375 of IPC a husband will be guilty of rape only if his wife is below 15 years or 15 years. And if the married lady is a major person i.e. 18 years and above, then there is no law for her protection. Is this a kind of mockery? Then in that case, rape committed with a minor girl only should be considered as crime under section 375 of IPC and not with a major person.

So, Indian law hasn’t recognized Marital Rape as a crime but this “Exception 2” of 375 speaks and considers Marital Rape as offence under 375 of IPC but with a limitation.

 “All involuntary sexual intercourse in marriage is not rape but all rape is involuntary sexual intercourse”

Pyali Chatterjee

[1] Universal Criminal Manual, 547, Universal publishing house Pvt. Ltd, ISBN: 9788175349193.

[2] Id.

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