CONTINUITY WITHOUT CONSENT?

Abstract

Change is the only constant. Change in ideas, change in behaviour, change in outlook - this is what evolves humankind. What was perhaps admissible a few decades ago, may or may not be in the present time and situation. The practices in execution in the past happen to have materialised and emerged on account of the available information and the encompassing customs or traditions prevalent in that phase. But today, in the 21 century, there is hope and expectation of justice being granted with the same extent of progress, as time. While observance and convention as a manifestation of custom or tradition hold due esteem in various domains of life, the wrong, if any, must be undone. The author proceeds using the instance of marital rape in India - its occurrence, responsibility and outcomes, to examine and establish the need for the metamorphosis of such a laws and provisions. 

Section 375 of the Indian Penal Code defines and explains sexual assault, with a second exception clause stating that sexual activity or sexual intercourse by a man with his own wife (recently amended to wife not being under 18 years of age) does not amount to the crime of rape. 

Section 375, that earlier defined and explained ‘rape,' was sought inefficient in defining and reflecting the various forms of sexual assault that women are subjected to in reality. The Indian Penal Code, in light of the inadequacies of law relating to rape, suggested that the legislature must bring about the necessary changes. Such recommendations were recognised by the Supreme Court via the case of Sakhi vs Union of India and the new bill was drafted, based on the 172nd Law Commission report. The provision sought to exclude married girls of under 15 years of age previously, but with the recent landmark judgement of  Independent thoughts vs Union of India, the exclusion extends upto married girls of 18 years of age. While such a revision ,in all certainty, is a step towards a veritable scenario, the honourable courts must not uptake any more time in criminalising marital rape altogether.