Out of the fifty- countries that understand marital rape as a crime, India is not one. The Indian laws do no longer see a husband as having the capability to violate the sexual autonomy of his spouse.
The judgment of Joseph Shine v. UOI which upheld the sexual autonomy of married girls appears to don’t have any impact at the Indian legislatures as they still trust that the Indian society isn’t always prepared for the criminalization of marital rape and consider that even the allegations of it would damage the sanctity of marriage. Currently, the Indian Judiciary is handling the problem of marital rape as a floor for divorce; previously it had refused to interfere on the idea that the proper method to deliver such change lies via legislation. This quandary has encouraged the sustenance of exception 2 of Sec. 375 IPC which has therefore chastened the sexual autonomy and privateness of a married Indian woman.
It isn’t that trade treatments aren’t available, but their availability and effect, each, are moderate and additionally, they do now not impose the epithet of a ‘rapist’. Nonetheless, one opportunity treatment which imposes a penalty as intense as that for rape and under which husband can be charged to a positive volume is violation underneath Sec.377. However, the writer will argue in this text that one of the reasons given via SC in Navtej Johar v. UOI to declare sec. 377 unconstitutional, to the volume, that it implemented to sexual sports among consenting adults, also makes it inapplicable to the sexual activities that a husband enforces on his spouse without her consent.
The language of Sec. 377 of Indian Penal Code reeks of an archaic concept of sexual members of the family. It becomes introduced inside the Victorian era and has survived inside the Indian Penal Code due to the fact that then. To illustrate it further it’s far better to reiterate the phase: –
377. Unnatural offenses: Whoever voluntarily has carnal sex towards the order of nature with any guy, woman or animal shall be punished with imprisonment for life, or with imprisonment of both description for a term which can also extend to 10 years, and shall also be susceptible to first-rate.
Explanation: Penetration is sufficient to constitute the carnal sex necessary to the offense described in this segment
A easy studying of the section found out that carnal sex against the order of nature coupled with penetration turned into the gist of the offense and it can be divided into 3 neat cubicles- first off, it penalized sexual sports among the homosexuals, secondly, it penalized certain unique sexual sports among the heterosexuals and lastly, it penalized sexual activities with animals (Bestiality). The gift article will awareness on the second one form of offenses which had an effect on marital relationships as properly, as each married couple stayed susceptible to Sec. 377 if they were doing any sexual act besides penile-vaginal sex. The terms ‘carnal intercourse in opposition to the order of nature’ (hereinafter known as unnatural intercourse) and ‘penetration’ aren’t described below the Indian Penal Code, however, the judiciary had given them an extensive and non-uniform interpretation while examining collectively. It took into ambit : (i) any sexual act without an opportunity of procreation, (ii) a (non)consensual anal intercourse among a person and a female (which include that among a husband and spouse), (iii) inter-femoral (thigh) intercourse, (iv) Oral intercourse between contrary sex.
However, the silver lining of this wide interpretation changed into that it allowed married ladies to report a criminal complaint against their husbands if they indulged in non-consensual unnatural sexual sports.
Consequently, what became further demanded out of NavtejJohar was that the Supreme Court could make it explicitly clear in their ratio that in relation to heterosexual couples, Sec. 377 might handiest be used to penalize non-consensual activities.