Marital Rape

Durga Roy


India is a country with diverse culture and values it in its dimension. Marriage is one important ingredient that shows how our culture is structured. Marriage is a bond between two individuals which eventually gives them legitimacy for sexual intercourse. But, marriage has now become a license to rape. As the meaning itself says marriage legalizes sexual intercourse it is meant that any sexual act in the course of the marriage is not wrong and is legal. This forms the reason for the people to engage in the act of committing marital rape. Marital rape is nothing but sexual intercourse between married couples without the wife’s consent. The lack of consent is essential element and need not involve physical violence. It is considered a form of domestic violence and sexual abuse. Married women have the same rights to full control over her body as a unmarried women. Marital rape is an offence under Section 375 of the Indian Penal Code.   

Keywords:  Marital Rape, Sexual Right, Consent, Section 375, Indian Penal Code.      

Section 375 of Indian Penal Code defines rape as sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud. Rape is an offence against women, violating her dignity and self – respect and when it occurs within four walls of a matrimonial home, it reduce the women to the status of an object used mainly for sexual gratification. The most unique aspect of the relationship between husband and wife are the legal sanction attached to their sexual relationship. But, marriage has now become a license of rape. Married women have the same rights of full control over her body as an unmarried woman. Article 14 of the Indian constitution talks about equality but in the case of marital rape, it does not give equal rights for her sexual desire. When a man has sexual intercourse with a women without her consent it is it is considered to be a rape and it is termed as criminal offence. The word consent is one of the important key to decide whether it is rape or sexual intercourse. In this way, there stand a question mark of how can rape by husband after marriage but without the consent cannot be a crime. Ironically, india gives more important to rape whether  frequently law are made and updated with regard to it and many measure are also take by the government to stop raped but on the other hand, the act of marital rape still did not receive the criminal attention that is, it ought to receive and it remains unnoticed.

Marital rape is not completely criminalized in India. It certainly is genuine type of wrongdoing against ladies and deserving of government consideration. India is one countries which consider marital rape as an exception to the offence of rape. Under Section 375 of the Indian Penal Code, Exception 2 provides for exclusion of sexual intercourse or sexual acts by a man with his wife as a rape. However, since rape is based on the absence of will and consent of the victim. Indian scenario tends to put only married women at risk of having their sexual rights violated by their husband and more so due to the exclusion of marital rape as an offence under the Indian law.                                                                                                     

 In case of  People v. John Z, The Supreme Court of California arrested that a women has absolute right to say No to sexual intercourse and also to stop it after commencement; if compelled thereafter the act amount to rape. So, even if her commitment to marriage is mistake as consent to sexual intercourse, a “No” communicated whether before commencement or during the supposedly consented sexual act should be respected and should otherwise amount to rape. The article intends to point a logical analysis as to why India requires to include marital rape under Section 375 of the IPC.                                                                                                                                     

In 2005, The Protection of Women from Domestic Violence Act, 2005 was passed which considers marital rape as a type of local violence. Under this Act, a lady can go to the court and get legal partition from her husband for marital rape. Marital rape is unreasonable: is a lady’s body raped, as well as her affection and trust is damaged in this way throwing her it might be said of instability and dread. Her human rights are relinquished at the holy place of marriage. However the laws to secure the interests of the causalities of marital rape are lacking and deficient, and the means taken are unacceptable.                                                                                                               

Right to live with human dignity – The concept of right to life under Article 21 of the constitution include the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse form, freely moving about and mixing and mingling with fellow human being. The right to live with dignity is one of the most inherent qualities of the right to life which recognize the autonomy of an individual.                                                                                                                                  

The Supreme Court has held in a catena of case that the offence of rape violates the right to life and the right to live with human dignity of the victim of the crime of rape. The supreme court has held that rape is not merely an offence under the IPC, but is a crime against the entire society.

Right To Sexual Privacy Right to privacy is not mentioned in Indian constitution. Nevertheless, in a series of cases, the Supreme Court has recognized that of privacy is constitutionally, protected under Article 21. The right of privacy under Article 21 includes a right to be left alone. Any form of forceful sexual; intercourse violates the right of privacy. It is submitted that the doctrine of marital exemptions to rape violates a marriage woman’s right to privacy by forcing her to enter into  a sexual relationship against her wishes.                                                                                                                                                                                           

In the case of State of Maharashtra v. Madhkar Narayan the Supreme Court has held that every woman is entitled to her sexual privacy and it is not open to for any and every person to violate her privacy as and whenever he wished. In the landmark case of Vishakha v. State of Rajasthan the Supreme Court extend this right of privacy in working environments also. Further, along a similar line we can translate that there exists a right of privacy to go into a sexual relationship even inside a marriage. Subsequently by decriminalizing rape inside a marriage exception teaching damages this right of privacy of a wedded lady and is consequently is illegal.                                                                                                              

Thought the constitution does not expressly recognize the Right of Bodily- Determination, such a right exists in the larger framework of the life and personal liberty under Article 21. The Right of Self Determination is based on belief that the individual is unlimited decision maker in matters closely associated with her/his body or well- being and the more intimate the choice the more robust is the right of the individual to be the authors of their own fate. Consent to sex is one of the most intimate and personal choice that a women reserve for herself. It is form of self- determination and a law that takes away the right of expressing and revoking such consent definitely deprives a person the constitution right of bodily self- determination. It is submitted that the marital exemption doctrine effectively deprived a married women her right to bodily to self- determination in respect of one of the most intimate and personal choice i.e.., consent to sexual intercourse, and is hence, unconstitutional.                                                                                                                                                                         


Marital rape is not completely criminalized in India. It certainly is a genuine type of wrongdoing against ladies and deserving of government’s consideration. Marital rape is significantly more horrendous for a lady since she needs to remain with her aggressor ordinary. As results of a marital rape are truly high, there is obviously a dire requirement for criminalization of the offence of marital rape. Positive legitimate changes for ladies by and large is going on in India, yet additionally steps are fundamental so that both lawful and social changes happens, which would finish in criminalizing marital rape and changing the attitude about ladies in marriage. In 2005, the protection of women from domestic violence act passed which considered marital rape is a type of violence. Under this act a lady can go to the court and get legal partition from her husband for marital rape. The woman has right to equality, right to sexual privacy, right to life with human dignity. The woman has and still continues to be victimized by man and society. There is need to acknowledge her as a human being, away from the ancient notion of her being a mere chattel and give her respect and the dignity she deserve. The patriarchal power structures have deemed marriage to be a license unwilling sex. There is total negation of the self worth of a woman.

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