The societal discourse currently now is around the issue of ‘Marital Rape’. Women’s rights activists complain that, as per the definition of rape under Section 375, there is an exception that, sexual intercourse by a husband with his own wife cannot be considered as rape. The exception states:

Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Does this mean that marital rape is legal in India? Well, feminists would want us to believe that and it is true that the exception doesn’t allow prosecution of the husband under Sec 375. But this is the half-truth that feminists are spreading.

India has a Domestic Violence Law to protect women from abuse of any kind in a domestic set-up. Abuses are categorized as physical abuse, mental abuse, economic abuse, emotional abuse or sexual abuse.

The Protection of Women against Domestic Violence Act was passed in 2005 and even the then Attorney General Soli Sorabjee had criticized it for being loosely drafted and being prone to misuse. It penalizes a husband for domestic violence even when the wife complains of ‘name calling’ by her husband. Wife can get among other reliefs, the following orders -
i) Restraining Order - the court can restrain the husband from going anywhere near his wife for a stipulated distance at all times,
ii) Residence Order - the wife gets a right to stay in a room within the residence of the man

iii) Maintenance Order – the wife is awarded a regular monthly maintenance amount, as stipulated by the court for her sustenance

When ‘restraining’ and ‘residence’ orders are coupled together, the implementation turns out that the wife gets to live in the house of her husband as per residence order and the husband cannot go anywhere near her within stipulated distance as per restraining order, which practically means the husband cant enter his own house as his wife is now residing in it. So much stringent are the laws in favour of women that, this can happen even when ‘name-calling’ is the basis of complaint. That brings us to the question then why a heinous crime like Marital Rape isn’t criminalized? This is the lie that feminists are trying to perpetrate.

As per Section 3 (ii) of Domestic Violence Act, a woman can file a case against her husband for sexual abuse. The Section 3(ii) of PWDVA states,

(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

The husband can be penalized upon a complaint of sexual violence to the extent of being thrown out of his own house, while paying maintenance to his wife every month. Violation of any order gets him into jail so it is binding upon him to follow the orders.

This clearly shows that Marital Rape is penalized and a husband cannot getaway by raping his wife. While this law may seem sufficient to punish, a man forcing himself on his wife, this isn’t the only law that provides relief to women from Marital Rape.

India had a unique problem of dowry related issues and had passed a law in1983 under Section 498a wherein, any harassment by husband or his family members would be criminalized. The Section 498a states,

498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine.

This law has been notorious as being the most misused law in India, Accused of all ages, from a two month old baby to ninety year old nonagenarians have been arrested in cases related to harassment on mere complaint, most of which later turn out into acquittals. A victim of ‘Marital Rape’ can very well seek relief from this law on basis of cruelty and the husband will be immediately put behind bars upon a complaint.

Why then are the feminists demanding so eagerly for removal of the exception and what are the challenges that lie ahead to do this?

The challenges lie in the procedure for investigating these cases. In order, to ascertain a domestic violence incident to have occurred, there is procedure followed by a Protection Officer under PWDVA which determines satisfactorily that the violence has taken place. Under 498a, since most cases of 498a were being found to be false and innocent men were being harassed for extortion, SC had to issue guidelines for the police to take Magistrates permission before making arrests. Now criminalizing Marital Rape under Section 375, takes away the protection from innocents accused falsely by their wives.

When a rape complaint is filed under Sec 375, an innocent falsely accused has the defense in the form of medical tests of the woman to ascertain intercourse with him, or proximity of the man with the woman. In a situation, where an Investigation Officer comes across a case of Marital Rape under Sec 375, both the proximity and medical tests leave no scope of defense for the husband as both would be living together and the investigation has to rely completely upon the words of the wife. This will result in a travesty of justice against false complaints filed by women against their husbands. The only option left for husbands would be, to video record every moment of their life with their wives, in order to avoid a false Marital Rape case, which is impossible and illegal.

As per a study conducted on rape cases filed in Delhi for a year by The Hindu, about 40% of the rape cases were - when the couple had eloped and the parents of the girl had filed a false rape case against the young man. About 30% more cases, were of consensual sex gone awry, where the girl friend had filed a rape case upon breakdown of a relationship – citing intercourse by the boyfriend under false pretext of marriage.

Considering this situation, marital rape law if allowed under Section 375 would certainly become a tool of extortion like Section 498a is currently, where even the Supreme Court was forced to call it Legal Terrorism.

Recently Supreme Court has asked police to take the sanction of a Magistrate before arresting an accused for crime inviting a punishment below seven years. This has resulted in a drop in arbitrary arrests and extortion of husbands at police station by women. Feminists seem to be pursuing criminalization of Marital Rape under Sec 375, which doesn’t fall under this protection net for innocents, as conviction is of seven years under this law.

Currently every broken marriage has a potential to become a dowry harassment case. If complaint of Marital Rape is allowed under Section 375 as well, every broken marriage will have the potential to become a rape case, wrecking havoc on the hapless men who would have the option of bowing to extortions of heavy settlements or be caught in the quagmire of courts for years together.

The below video nails the lie about Marital Rape currently not being criminalized.