The National Webinar on International Women’s Day: “Debate on Marital Rape: A Constitutional Perspective” by the Faculty of Law, the University of Delhi on March 8, 2022.
About the Organiser
Campus Law Centre, Faculty of Law, University of Delhi: Campus Law Centre is the time-tested legal institution par excellence. It is the national hub of legal studies.
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About the Webinar
The issue of marital rape in the contemporary Indian society has been a topic of intense debate and controversy. The sexual offence against the spouse is widespread than many realise, but it is yet to recognize as separate offence under section 375 of Indian Penal Code 1860.
The law enforcement and judicial authorities are also reluctant to take cognizance of sexual assault against the spouse since accused is nobody but the life partner of the victim. It is also a challenging task to investigate, prosecute and launch judicial trial in spousal rape cases.
The penal proposition with regard to rape law significantly exempt the sexual offence between spouses. The debate regarding marital rape resurfaced when many women approached the courts to seek remedy against the brutal sexual treatment in their matrimonial home and family life.
The section 375 of the Indian Penal Code 1860 says that sexual acts by a man on a woman against her free will or consent would constitute rape. However, there are two exceptions to this. The first exception says that “a medical procedure or intervention shall not constitute rape”.
As per the second exception, “sexual intercourse or sexual acts by a man with his own wife” when the wife is above 18 years of age would not constitute rape.
It is this provision that is being constitutionally tested. While marital rape is not a criminal act in India, a woman could file a case under Protection of Women from Domestic Violence Act 2005 or provision of cruelty under Indian Penal Code, and could claim separation or divorce or seek punishment against her husband.
A particular section of Indian society especially women activists want exemption provided in section 375 should be struck down due to its unconstitutional nature. Further, the exemption of section 375 also violates right to equality, right to life, dignity and self-esteem of women as guaranteed under the Constitution of India.
Those who strongly advocates about the seriousness of marital rape and believe that it should be a punishable offence also highlights some anomalies in the law relating to cruelty where battering, physical and psychological torture against wife is a criminal offence but not raping her.
In numerous judicial pronouncements the forced sexual relation between the spouses is a factor of divorce and punishment but this area has been completely ignored by the protagonists.
Acknowledging the marital rape as a separate offence on the line of section 375 may also cause serious repercussions viz who will look after the children if husband imprisoned, what will be the status of women after conviction of her husband, whether she will go for divorce or maintenance.
Some legitimate concern of the ruining of Indian family values, culture and future of the children can’t be ruled out as happened in the past with heavy misuse of Sec 498A of Indian Penal Code.
The Ministry of Women and Child Development has indicated that marital rape is a serious issue and it should be addressed as per the Indian legal system. If marital rape declared as separate offence under the law, children will be the main victims of these laws.
Moreover, if a wife is subject to sexual cruelty, then a civil remedy of divorce is available with her and since cruelty is already a criminal offence, what’s the need to bring in an extra category of crime at the time when people are already running away from marriage.
Apart from that many unanswered questions are also lining up about the socio-economic protection of wife, children, parents and other dependents of the husband. The issue of bodily autonomy is also there when we discuss about Article 21 of the Constitution and right to personal liberty also applies on married woman.
Further, in 2018, while decriminalising adultery the court held that even marital relations are not exempted from constitutional scrutiny.
The primary objective of the webinar to discuss and explore some avenues as how to address the marital rape conundrum and what are the challenges ahead if the law enacted. Prime focus of this webinar will be to analyse the possible consequences of the Court’s suggestions and their impact on Indian families. Obviously, history, law and traditions will be our guiding forces.
Students, Law Students, Lawyers, Academicians, Scholars, Research Fellow and Anyone interested in knowing the topic.
How to Register?
Interested participants must register themselves through the Google Form available here.
- Akshay Kumar: +91 9452 6557 07
- Ananthu G S: +91 7736 3649 85
- Kanika Chhillar: +91 7838 9095 30
- Minthang Timothy: +91 9899 2272 41
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