Marital rape is rape, not another crime

Rape, as defined by Section 375 of IPC, is defined as sexual intercourse of any kind with a woman ‘against her will’, ‘without her consent’, ‘when consent has been obtained by putting her… in fear of death or of hurt’, and six other circumstances including inability ‘to communicate consent’. Two things in this law – carried over and expanded in the Bharatiya Nyaya Sanhita‘s (BNS) Section 63 – are noteworthy. One, it doesn’t apply to rape of a man or transgender (the scrapped IPC Section 377 treated any sexual act, consensual or not, between men or with a transgender as criminal). This is a serious lacuna. Two, it doesn’t qualify the woman – whether married or single, divorced or separated, tall or short, etc.

GoI’s attempt to keep marital rape – when a husband rapes his wife – outside the purview of BNS Section 63 (2013 amendments to IPC opted to retain the exemption from Section 375) retains an unjust qualifier for a woman who is a rape victim, and who isn’t. Rape is rape, as is a victim of rape a victim of rape, something that’s for a court of law to prove the veracity of. GoI is neither a marriage counsellor nor is it’s job to uphold the sanctity of matrimony across the land.

It’s, in fact, dangerous to corral marital rape into the fence of lesser crimes of IPC Sections 354 (assault to ‘outrage modesty’), 354A (sexual harassment), 354B (forced disrobing), 498A (cruelty to a woman by husband or her relatives), and Protection of Women from Domestic Violence Act 2005. Rape is none of these, the same way a murder is not assault, injury, etc. If the murder of a married woman is the same crime as the murder of an unmarried woman, the same logic must hold for rape. This isn’t about upholding marriage. It’s about criminalising rape.