No law against Marital rape in Indian Penal Code, Accused called to be non-guilty

On Monday, a doctor in Gujarat was found to be non-guilty against the charges of raping his wife. The Indian court said he cannot be held guilty as the doctor was married to her and in Indian Penal Code, there is no law against the charges of marital rape.

The judge who presided over the case, called for partial quashing of the FIR. The FIR was filed against the doctor at Idar in Sabarkantha district of Gujarat. The wife accused her husband, the doctor for torturing her mentally as well as physically. She also accused him of forcing her into oral sex.

Statement of the Judges

As per the reports of Hindustan Times, Justice JB Pardiwala stated, “The husband cannot be prosecuted for the offence of rape punishable under Section 376 of the IPC at the instance of his wife as the marital rape is not covered under Section 375 of IPC… which provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape.”

The Indian Law Journal states, “Marital Rape refers to unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent. Marital rape could be by the use of force only, a battering rape or a sadistic/obsessive rape.”

The amendment was made on the Indian Penal Code Section 375, which includes the definition of rape in 2013. After the amendment, apart from the definition of rape, several new information were added such as sodomy, oral sex and penetration with unusual or foreign objects. However, the amendment did not include any legal action for married women who were raped over their legal age of 18.

International laws regarding marital rape

The laws for marital rape are even strict worldwide, although it is considered illegal in a number of places around the globe. It is held illegal in states of America and Australia and its territories. Canada, Sweden, Israel, Soviet Union, Czechoslovakia, France, Norway, Denmark, Israel, New Zealand and other countries around the globe consider marital rape to be illegal.

The scenario may have changed now, but it wasn’t the same for them in the past. As per a statement of Sir Mathew Hale, Chief Justice of England in the 1600s, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.”

In 1970s, a group of women activists in America started revolting against the practise of marital rape and called for removing this clause by the government. It was during this time, that the government realised the problem and stated laws should be made against the marital rape.

Reaction of the judges on the verdict

Despite giving the verdict, the judges of the Gujarat Court still regretted the fact that marital rape in India is not considered to be a criminalized act.

In one of his orders, JB Pardiwala added, “No one is even willing to discuss to reform the criminalization of marital rape … A law that does not give married and unmarried women an equal protection creates conditions that lead to the marital rape.” In his order, he further added, “Making marital rape illegal or an offense will remove the destructive attitudes that promote the marital rape. The total statutory abolition of the marital rape is the first necessary step in teaching societies that dehumanized treatment of women will not be tolerated and that the marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalized.”

Though, he was not held guilty for marital rape, the judge found the accused doctor guilty under Section 354 (Sexual Harassment) and 498(A) (A husband and relative subjecting a woman to cruelty).