. One of the most horrifying and repressive issues with the Indian legal regime is that marital rape is perfectly legal. Marital rape, the act of forcing your spouse into having sex without proper consent, is an unjust yet not uncommon way to degrade and disempower women. Today, it has been impeached in more than 100 countries but, unfortunately, India is one of the only 36 countries where marital rape is still not criminalized.
Despite that, rape laws in our country continue with the patriarchal outlook of considering women to be the property of men post marriage, with no autonomy or agency over their bodies. They deny married women equal protection of the laws guaranteed by the Indian constitution. Lawmakers fail to understand that a marriage should not be viewed as a licence for a husband to forcibly rape his wife with impunity. A married woman has the same right to control her own body as does an unmarried woman.
The concept of marital rape in India is the epitome of what we call an “implied consent”. Marriage between a man and a woman here implies that both have consented to sexual intercourse and it cannot be otherwise. The Indian Penal Code, 1860, also communicates the same. Section 375 defines the offence of rape with the help of six descriptions. One of the exceptions to this offence is “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape”.
Essentially, Section 375 (Exception) creates a classification not only between consent given by a married and unmarried woman, but also between married females below 15 years of age and over 15 years old. Such a classification does not pass the test of “intelligible differentia” and is, therefore, prima facie in contravention to the Right to Equality enshrined under Article 14. In 2017, a PIL was filed by Independent Thought, an NGO, challenging this unintelligible classification and claiming that married women over 15 years of age should also be afforded this protection. The Supreme Court concurred with these averments to some extent and extended the age limit in Section 375 from 15 years to 18 years.
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