There is a plethora of legislation protecting women’s rights in our country. The National Commission for women reports five women specific acts and forty three women related acts. However, the number of laws in any legal system correlating with the amount of justice that people receive is quite unlikely. To the contrary, more legislation may indicate a lack of justice in the area for which the legislation is designed to compensate. Moreover, more legislation could also translate to more loopholes, more confusion, and mere lip service.

Nirbhaya’s case shook the nation. She was a girl that almost every family could relate to. She was a young, ambitious student in a city, striving to achieve independence. Hers’ was a textbook case of forcible gang rape, albeit accompanied with grotesque violence and inhumanity of the lowest kind. However, since rape stories have become prevalent in the news, we must revisit and perhaps revise the legal meaning of rape.

The Indian Penal Code offers a comprehensive yet outdated definition of rape. S. 375 of the IPC defines rape as follows:

“Rape —A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de-scriptions:—

First — Against her will

Secondly — Without her consent

Thirdly — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly — With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law¬fully married. Fifthly — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe¬fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly — With or without her consent, when she is under sixteen years of age

A close reading of the section shows that a rapist can use his marriage as a defense for raping his wife. The exception to this section allows a man to escape being labeled a rapist in the eyes of the law if he rapes his wife as long as she is fifteen years old and above. This exception implicitly sanctions marital rape of women over the age of fifteen by discounting the possibility that a woman older than fifteen years who is residing with her husband could be raped by her husband, despite prima facie evidence.

Section 376A, an amendment to the main section defining rape, attempts to remedy the crucial discrepancy by covering intercourse by a man with his wife during separation. However, what about all the women who do not have the means or the resources to separate themselves from their husband? Why must they not be offered any protection even if, upon a medical examination they clearly have been raped?

The other amendments to this section describe different scenarios for rape, namely intercourse by public servant with woman is his custody; intercourse by superintendent of jail, remand home, etc; and intercourse by any member of the management or staff of a hospital with any woman in that hospital. But nowhere is a married woman who has been raped by her husband but not separated from him recognized as being raped.

While there are provisions for cruelty and domestic violence under the IPC and various other Acts, the classic definition of rape as stated in the IPC must be amended to reflect the possibility that a woman can be raped by her husband in a house that they both share. Marriage must not under any circumstances be seen as a safety shield for a man who violates his wife. Our laws change attitudes and attitudes are conversely reflected in our laws. After all, even a cosmetic section holds value by setting a code of conduct for citizens.

A government commission in the aftermath of Nirbhaya’s rape recommended recognizing marital rape. However, the government has refused to do so, stating such recognition would “weaken traditional family values in India, and that marriage presumes consent” (Source – NDTV)

The reason stated by our government for not recognizing marital rape as a criminal offense is filled with contradictions and factual inconsistencies. Our cultural values must not permit marital rape. We must not uphold traditions wherein a man who marries a woman is allowed to sexually assault her without being labeled a criminal and a rapist. If DNA evidence, medical examinations, etc prove that a man has sexually assaulted a woman, why must he be let off the hook just because he happens to be married to her? The argument about preserving our cultural values and ideals is especially paradoxical because we have inherited the Indian Penal Code from the British. The First Law Commission, chaired by Thomas MacCauly drafted the Indian Penal Code. While the IPC has been amended many times, it must again be amended to recognize marital rape as a heinous crime, much as rape between a man and a woman who are not married to each other is.

While marriage may be presumed consent for lovemaking, it cannot be presumed consent for rape. Rape is the opposite of lovemaking. Rape is a violent act wherein a man attempts to assert control over a woman and humiliate her in the worst possible way. It is a gross misinterpretation of our values and principles as a nation that we would allow a husband to do such a heinous act to his wife without imposing a criminal penalty. Furthermore, by refusing to recognize such an act as criminal, we are implicitly declaring it to be acceptable. If we do not change our mindset about the women of our nation, our mothers and sisters will become an ‘endangered species’ as anthropologist Barbara D. Miller predicts.