Need for Criminalizing Marital Rape in India

||Pragati Mishra||

The bruises and the marks on the body of some married Indian women often tell the story of their sufferings. The story which has no existence in the eyes of law. It is often said that how can a husband rape his wife? Why the hell she said yes to the marriage if she doesn’t want sex. She should have stayed at her parents home. This woman is showing so many tantrums. It is the right of her husband to have sexual intercourse. It is one of the marriage obligations and she has to fulfil it.

These are the few excuses or we can say that some defence often taken by Indian orthodox society, which believed that marriage gives you a license to do whatever you want to do with your wife. Marital Rape refers to any unwanted sexual act/acts committed by a husband upon his wife without her consent. Such sexual activity includes force, the threat of force. Marital rape is one of the most debated topics in today’s time. According to the exception (2) of section 375 of IPC sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age is not rape. In 1860, at the time when IPC was drafted, a married woman is considered to be the chattel of her husband and since the wife is considered to be the chattel, a man
cannot commit a crime against his own property so the question of marital rape doesn’t exist. It is presumed by Indian law that marriage in Indian society is sacrament and wife are considered to be in possession of the husband. Marriage refers to a wife giving consent to all the matrimonial obligations including sexual intercourse. Violation of article 14 and article 21 The exception 2 of section 375 of Indian Penal Code is clearly the violation of article 14. Article 14 of the Indian constitution ensures that state shall not deny to any person equality before the law or equal protection of law within the territory of India. But the Indian criminal law discriminates against the female victims who have been raped by their own husbands. The exception 2 of sec 375 of IPC creates two classes of women based on their marital status and give immunity to the actions done by the husbands.

The judicial interpretation has expanded the scope of Article 21 of the Constitution of
India and “right to live with human dignity” is within the ambit of this article. Marital rape clearly violates the right to live with the dignity of a woman and thus exception provided under Section 375 of the Indian Penal Code, 1860 is a violation of Article 21 of the Constitution. The object of section 375 of IPC is to protect women and punish those who engage in the inhumane activity of rape but exempting husbands from punishment is entirely contradictory to the objective. It should be kept in mind that the consequences of rape are the same whether the women are married or not.

The Indian government has submitted the report before Delhi High court that Criminalizing marital rape will destabilize the institution of marriage in Indian society. What may appear as marital rape to an individual wife, it may not appear so to others and it would result in harassment of husbands. The defence will hold no ground if one looks at the data of NFHS 4 ( National family health survey 2015-2016). 5 out of every 100 women in India reported that their husband had physically forced them to have sexual intercourse with him even when they didn’t want it. As we all know that every coin has two faces. So the centre taking the defence that criminalizing of marital rape would result in harassment of Indian Men will increase the fraudulent cases against men is totally unjustified. The fraudulent cases exist in almost every law but that doesn’t deny the existence of crime. For example, there are fraud cases relating to dowry as well. But still, there is dowry protection act for the protection of real victims.

Countries like the UK, USA and others have criminalized marital rape. Australia made rape in marriage a criminal offence as early as in 1976. It is high time for India to accept the fact that marital rape exists and to proceed towards criminalize marital rape. It should be accepted that A NO MEANS NO whether it is said by unmarried women or married women.

The author is LL.B student at Lucknow University.


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