Updated: Mar 31, 2022
Will the wife's accusation be enough to bring rape charges against the husband?
Rape is amongst the most heinous crimes! The question however is, What Is RAPE? According to Section 375 of the Indian Penal Code (IPC), sexual intercourse by a man with a woman against her will or without her consent is rape. It is clarified here that if the consent was taken by intimidation or fraud or if the mental condition of the victim is not normal, then such consent is not valid. An exception has been made that sex by the husband with the wife shall not be deemed to be rape, provided the wife is not less than 15 years of age. This specifies that there is no concept of rape within the matrimonial bond.
The feminist lobby in the country petitioned the Delhi High Court (RIT Foundation Vs The Union of India) by way of a writ petition to eliminate this exception. The central government urged the court not to hear the matter for now, as it will give an informed opinion after due deliberation and extensive consultation as the process to reform the criminal laws is already in process. Union Minister of Women and Child Development, Smriti Irani said in Parliament that not every man is a rapist and removing this exception would mean destroying the institution of marriage.
Historical Legal Background
The Child Marriage Restraint Act, 1929 fixed the minimum age of marriage as fourteen for girls and eighteen for boys. In 1949, the minimum age of the girl child was raised to 15. In 1978, this act was again amended to make the girl's age eighteen and the boy's minimum age 21, but no amendment was made in the IPC. Now The Prohibition of Child Marriage (Amendment) Bill, 2021 has been introduced in Parliament to increase the minimum age of marriage for girls to 21 years.
A few years back, the constitutionality of the exception made for the husband in Section 375 was challenged in the Supreme Court in Independent Thought Vs Union of India (2017), the Supreme Court held that sex with a wife below the age of 18 years would amount to rape, but did not say anything for above eighteen years, as the minimum age of marriage for girls is eighteen years.
Parliament has the right to fix the minimum age of marriage or to amend the IPC, but if the exception made for the husband is removed, then what other good proof will there be than the wife's allegation that there was consent or not? Hon’ble Apex Court also in Krishan Kumar Malik Vs State of Haryana, it is observed and held that to hold an accused guilty for commission of an offense of molestation or rape (under section 354 or 376 IPC respectively), the oral testimony, the solitary evidence of the prosecutrix, is sufficient. Wonder, will it be the same in the case of the husband as well? It will destroy the social fabric for sure.
The question is, if there is no difference between a husband and someone else, then what is the need for marriage. The question is, why do feminists want to send men to jail? Do men only need sex? If men are suspected of being accused of rape for having sex outside of marriage, and marital rape for having sex with the wife, then we'll end up with a huge problem. Society can learn to manage the sex drive, but it can't eliminate it, even for women.
If sex with a wife without consent is an offense, then it should be made a civil matter as grounds for divorce. The extent to which Section 498-A of IPC has been misused is well known and recorded. In the end, the Supreme Court had to issue directions that arrests in such cases should not be made mechanically. Referring to the misuse of legal provisions relating to dowry harassment to drag relatives of husbands, the Supreme Court said that courts have to be very careful in dealing with such complaints.
If the exemption is repealed, there will be consensual sexual intercourse between the husband and wife during the night and if the two have a dispute in the morning, the wife will go to the police station and file a rape case. What will the evidence of consent be?