New bills propose stricter laws on rape but marital rape still not an offence

The Centre, on Friday, introduced three new bills before Parliament to revamp the entire criminal justice system. The overhaul of the Indian Penal Code, the Criminal Procedure Code and the Indian Evidence Act come as the biggest change to criminal laws undertaken by a government in the past 70 years.

Significant changes have been proposed to laws regarding rape and sexual assault. A whole new chapter dedicated to offences against women and children has been added as part of the new bill.

MORE STRINGENT PUNISHMENT FOR RAPE

The minimum punishment for rape has been enhanced from seven years to ten years, while separate laws have been created against rape of minors.

Under this, rape of a girl under 16 years of age will be punishable with maximum life imprisonment, while rape of a minor under 12 years of age can be punished with death.

Importantly, the death penalty can also be awarded in cases of gang rape of a minor. Along with this, a new law has also been brought in for protection of the identity of victims of sexual assault.

In addition to this, the bill proposed to make it an offence to indulge in sexual relations with a woman by deceiving her.

DEBATE ON MARITAL RAPE

Despite such big changes being brought in for crimes against women, there is no change when it comes to the exception given to marital rape under the law.

Marital rape continues to be an exception even under the new law, where Exception 2 to Section 63 states - “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape”.

The issue of marital rape has been a contentious topic in the Indian judicial discourse for several years.

As things stand today, marital rape - when a husband sexually violates his wife without her consent - is not considered an offence under the Indian Penalitarian System.

This is as per the exception clause 2 of Section 375 of the Indian Penal Code (IPC), which exempts unwilling sexual intercourse between a legally wedded husband and wife from the definition of rape.

This exception has sparked significant debate in the Indian Supreme Court, legislature, and society due to its implications.

Proponents argue that the clause rightly protects the sacred institution of marriage. They view that introducing marital rape laws can harm this institution as it will give rise to false accusations and potentially destroy families.

However, activists argue that this cultural and legal carte blanche accelerates the alarming rate of violence against women.

Activists and legal scholars say that the non-recognition of marital rape is a blatant violation of women's rights, and contradicts the fundamental rights of liberty, equality, and dignity granted to citizens by the Constitution of India.

They argue that marital rape laws have brought positive changes in western societies and that India too needs reform to protect its women from domestic violence and sexual abuse.

Furthermore, they argue that the exception clause encourages male dominance and brutality, providing legal cover to patriarchal norms and prejudice.

In recent years, this has gained momentum with several petitions filed in the High Court, questioning the constitutional validity of the exemption clause given to marital rape.

The Supreme Court has begun to intervene, questioning why the state should intrude on such an intimate relationship, marking the first step towards potential law reform.