“Unlawful sexual activity and usually sexual intercourse carried out forcibly or under threat of injury against a person’s will or with a person who is beneath a certain age or incapable of valid consent because of mental illness, mental deficiency, intoxication, unconsciousness, or deception” This para mentioned above is a definition given in Merriam-Webster dictionary of Rape, with no gender biases, no vagueness and extremely crystal clear. However in Bharat, the definition of Rape in Bhartiya Nyay Sanhita (from now on referred to as BNS) earlier Indian Penal Code (from now on referred to as IPC) begins with the line “A man is said to commit “rape” if he….”, from the very beginning of this definition the notion has been established that only men can commit rape, and only women can be a victim in such scenarios.
So now the question arises about the protection given to men against rape, what legal rights are granted to them, and which tools can be used by men to save their dignity and life, and the painful irony is after the decriminalization of Sec 377 (in Navtez Singh Johar vs. Union of India) and its removal from BNS 2023, now men have no such right in India, neither against women nor even against men to protect their life and dignity concerning Rape.
A country which is of such nature where one gender is completely boycotted from giving an extremely rudimentary right against such a serious heinous crime is thinking of declaring marital Rape under the ambit of the definition of Rape given in section 63 of BNS. (In short Criminalisation of Marital rape) .
Marital rape is given under exception 2 of Sec 63 of BNS2023 which says “sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape” Earlier in IPC the age of women is given 15 years which was changed in the landmark case of “Independent thought vs Union of India 2017”, the issue was firstly discussed after the Justice Verma committee which was made after the Nirbhaya rape case 2012 had suggested criminalization of marital rape. prior to this in various other judgments such as “Harvinder Kaur vs Harmander Singh,” the court declared it a reason to destroy the institution of Marriage. Later in the PIL case of Anuja Kapur vs Union of India through Secretary 2019, the bench headed by Justice SA Bobde and Justice Gavai that the formulation of law is the power enshrined in the parliament i.e legislature and not with the judiciary and interfering in other power would amount to the violation article 50 in Indian constitution i.e Separation of Power.
There is no doubt that rape is one of the most heinous crimes, violating both the human body and dignity. It is universally accepted that rape can occur regardless of whether the victim is married or unmarried. However, criminalizing marital rape could potentially lead to greater societal unrest, as it differs significantly from other forms of rape. In such cases, the accused not only faces legal proceedings in court but also bears the weight of societal judgment.
But in India where National Crime Records Bureau in its data released in 2022 declared 74% of Rape cases as false is the biggest issue, also no reverse mechanism is present in the current legal framework to punish those who filed fake rape cases against men except some of the pecuniary fines and some to jail for few months which are not at all satisfactory at the level of the heinousness of accusation.
The primary reason why the most of the cases found to be false is because of the concept of burden of proof, there has a established norm that a prosecutrix need to proof the crime and therefore it can only be established if there is actual intercourse between the accused and prosecutrix. However, in cases of marital Rape it becomes easier for a woman to establish the offense because of very thin line between consensual sex and rape. This opens up the possibility, in some cases, for consensual acts to be presented as rape if not by all at least by few and because of this the very idea of Ambedkar’s fundamental principle of justice and also the constitution of India that “A hundred guilty may be acquitted, but not a single innocent shall be punished”, there is very high chance that this law can be misused as tool against men and will impact harshly to the institution of marriage, this law will also decrease the degree of seriousness of the Rape as crime because the term will get very generalised blurring the distinction between actual rapists and regular marital relations, decriminlizing or declaring the exception 2 of section 63 of BNS as unconstitutional will result into the formation of new law which infringes very idea of sepration of power that is given in our constitution.
As we have already discussed that how the rape laws are not uniform in nature for both genders , however this issue not limits itself only towards gender but also to religions, culture etc. In a country like Bharat which have more that hundreds of different cultural and lots of religion the primary concern of both the government and judicial institution is to create uniformity among them, creating uniformity among the unmarried girls firstly and then think of to criminalising marital rape, such as Muslim law allows a girl to get married at the age she attains her puberty which is clear violation of uniform penal law but in eclipse of personal laws this very heinous act is allowed in India. One more such very prominent example presented in India is Nikah-Halala, In Quran if a husband divorces his wife for the third time, the patronage outlaws him to remarry her, until succeeding she has married another husband and he has divorced her this second marriage with same wife is called halala, the issue in this concept is that the wife has to consummate a sexual intercourse with another person before remarrying her own husband. And these issues are still not completely solved by judiciary and government . The plea of criminalising Nikah-halala is still pending before the apex court of India. (Sameen Begum vs Union of India)
Therefore in our conclusive argument, I only have to say India is a different country with different cultures , different identity and more over different societal thought process, in majority of India marriage is not a contract but a sacrament, it not deals with individual but work as institution at large and it has its certain boundaries in which no one other institution should interfere.
The author is legal scholar and researcher. He is also the author of the book “Constitutional Journey An overview form 2014-2024
