Marital Rape as a Criminal Offence in India: Prospects and Challenges

By-  Hamza Khan


Etymologically speaking, Rape is forcible seizure or ravishment of a women without her consent, it is coercive and violent but this is not so in the case of married couples. Sexual relationship between husband and wife is the expression of affection they have for each other and by getting married, couples agree to share their life. The hypothesis of marital rape is seems to be the celluloid fantasy of a screenplay writer’s overheated imagination. Considering it as grievous as rape will disturb the concept of the institution of marriage, Rape is a serious and condemnable offence but incompatible conjugal relationships are on a different footing and to be addressed with a different rationality on empathetic foundation. Relying on the foreign jurisprudence without understanding the society’s status quo would be inappropriate under any circumstances while devising effective Marital Rape Laws for India. Even if the Law on Marital Rape is made, what then is the guarantee of its effectiveness? Despite having anti-rape laws made through (Amendment) Act, 2013, there is no reduction in rape crimes. There is already no dearth of false rape cases filed by unscrupulous women against innocent persons for revenge or extortion. This practice not only causes immense distress, irreparable damage and unfathomable trauma to the falsely implicated person. There is a plethora of laws in India for the safety of women; still the women are not safe. With the universal rise of women empowerment during the past few decades, women have largely been protected by law almost in every civilized country, India being no exception. With law on their side, the women obviously feel elated. In 2005, PWDV Act was passed, which did not consider marital rape as a crime but as a form of domestic violence. However, the cacophony on Marital Rape has surfaced at numerous platforms of the society, especially in the legal institutions. The new definition of rape in the Indian Penal Code (IPC) as inserted by the Amendment Act of 2013 has had an anti-climax: it did not change the previous clause which excluded forced sex within marriage in the definition of rape. In fact, it said explicitly that “sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape.”The evil of marital/spousal rape is hidden behind the sacrosanct of marriage. The husband is the perpetrator of the wife’s bodily integrity. Rape is rape irrespective of the relationship between the victim and the perpetrator; this is the view of those who want the exception clause of sec. 375 IPC to be removed and the marital rape to be criminalized. The sexual intercourse with the wife either with her consent or not should not be termed as rape as it is the direct interference in the very nature of marriage, but the terming of non-consensual intercourse with minor wife as rape may remain punishable as a conventional rape.

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