ARGUMENTS AGAINST LAWS CRIMINALIZING MARITAL RAPE
Marital rape is rape within a marriage, where consent to sexual intercourse is not given. According to Wikipedia, which defines it rather succinctly, “Marital rape, also known as spousal rape, is non-consensual sex in which the perpetrator is the victim’s spouse. As such, it is a form of partner rape, of domestic violence, and of sexual abuse. Once widely condoned or ignored by law, spousal rape is now repudiated by international conventions and increasingly criminalised. Still, in many countries, spousal rape either remains legal, or is illegal but widely tolerated and accepted as a spouse’s prerogative.”
The root of the generic term “rape” can be traced from the latin term “Raptus”, which literally means “to seize” and in Roman law, it was used to imply violent theft, in relation to both property and person. Since, historically, a woman was also considered a property, rape was synonymous with abduction and a woman’s abduction or sexual molestation, was merely the theft of a woman against the consent of her guardian or those who had lawful custody of her person. The injury, ironically, was treated as a wrong against her father or husband, women being wholly owned subsidiaries. Such was the appalling status of women.
Not surprisingly, thus, married women were never the subject of rape laws. A legal immunitywas bestowed upon husband in respect of his wife, sprouting solely and wholly by virtue of the marital cord.
Section 375 of the Indian Penal Code, 1860, (post 2013-Criminal Law Amendment), in dealing with sexual assault, in a very narrow purview lays down that, an offence of rape within marital bonds is said to be committed only if the wife is less than 12 years of age, but if she is between 12 to 16 years, an offence is committed, however, less serious, attracting milder punishment. Once, the age crosses 16,