Marital Rape is a term which is used to describe a sexual act committed
by the husband without the wife's consent. Usually, some husbands sexually
exploit their wife to prove their dominance and strength. This forceful act
violates the basic fundamental rights of the women in our country. The
fundamental right to life
is violated by raping and threatening the
chances of the wife to live.
The fundamental right to privacy
when the husband isn't considerate of the wife's personal space and does not
take her no
into consideration. Lastly, the 'right to equality' is
violated when marital rape is not seen as a type of rape. In India, this
situation has reached its peak and should now be considered as an offence
with serious punishments. Thus, it is important to criminalize marital rape
Section 375 of the Indian Penal Code defines rape and considers it as an
offence. Whereas, the exception (2) of section 375 of the Indian Penal Code,
1860 states that sexual intercourse by a man with his own wife, the wife not
being under fifteen years of age, is not rape.
Section 198 (6) of the Code
of Criminal Procedure states that there should be no offence taken under the
section 376 of the Indian Penal Code,1860 where such offence consists of
sexual intercourse by a man with his own wife, the wife being under fifteen
years of age, if more than one year has elapsed from the date of the
commission of the offence.
These sections normalize the marital rape culture
which is supposedly 'not' normal and these sections should be struck down so
that the normalization of the marital rape culture stops. In the eyes of
law, marriage is considered as a shield and sanctum; thus these provisions
do not deal with marital rape. Hence, India needs specific provisions for
the victims of marital rape.
According to the statistics, 52 countries in the world have criminalized
marital rape and have considered it as a criminal offence. In the case
of R v L , the Australian courts stated in their judgment that a husband
could be found guilty of raping his wife. Whereas, in the case of R v J
A , the judgment stated that 'the relationship between the accused and
the complainant has nothing to do with consent for sexual intercourse. A
husband or wife may be charged with an offence under the Criminal Code
regardless of whether or not they were living together.
Later, in 2001,
a petition was filed by the Forum of Women, Law and Development (FWLD) in
the supreme court. The decision ruled by the supreme court stated that
marital sex without the consent of the wife is marital rape and is
punishable under law. Therefore, even Nepal declared that marital rape is
punishable under law. If these countries could criminalize it, then why
can't India do the same? A woman should always feel safe within the four
walls of marriage and it is about time that the judiciary of India acted
upon this issue and protected the marital rape victims of our country.
Marital rape should be considered the same as rape
consequences of both the crimes are the same, thus the provisions of
punishment should also be the same. Rape is considered as the most agonizing
amongst all the acts of crime committed against a woman. But what is more
shocking and horrifying for a woman is to have her self-esteem crushed by a
man who is supposed to love and nurture her, her husband.
A marriage should not be considered as a permit by a man to satisfy his
sexual desires. It greatly affects the self-respect and dignity of a woman.
Not considering marital rape as a punishable offence is the same as forcing
a rape victim to sleep with her rapist on the same bed every night. This is
not only a question for the law but, more importantly, an appeal for
humanity. Disturbing as it sounds, imagine how the victims of marital rape
deal with this torment every day. Adding to this, the sole reason why the
wives have to suffer in silence like this is because of the judiciary, which
still doesn't consider it as a rape.
The Indian society strongly believes that after a marriage, a man can use
his wife to fulfill all of his sexual desires while the consent of the wife
is always implied. Victim's relationship with the rapist should not even be
a question; rape can't be categorized on the basis of the relationship the
perpetrator and victim share. The idea that needs to be normalized in
today's world is the consent of both, the husband and wife. A man should
accept that NO MEANS NO
; if the woman does not want to get involved in a
sexual act, he must not consider it as a challenge to satisfy his pride by
A husband raping his wife should be punished as severely as any other rapist
is punished. Just because they have a marriage certificate, it doesn't give
him the license to commit such a heinous crime. In these circumstances, the
society could play a humanitarian role by supporting such women. Instead
they are too busy giving the wrong advice, asking her to save their marriage
by not filing a complaint against the husband. Darling, you've married him.
He can do whatever he wants to with you. He's earning for the family; this
is the least you can do. So, don't be naive and let him do what he likes.
this is what the women have been hearing from their elders or sometimes even
their mothers, because divorce and absolution of marriage is another topic
which the society shys away from.
According to the statistics, marital rape is more common in the rural areas
where marriage is considered as a free pass to commit this crime. Rape,
being one of the most outrageous crimes, puts a girl's life to threat,
because of which the rapists get either a life imprisonment or a death
sentence. But it is not the same in the case of marital rape. The only way
things can change is when we are successful in changing the mindset of the
people who normalize the culture of marital rape.
Article 14 and 21 of the Indian Constitution states the right to equality
and right to life respectively. Marital rape violates both these fundamental
rights and also the right to privacy to an extent. The Puttaswamy judgment
made it very clear that fundamental right to privacy of every individual is
guaranteed by the Constitution of India within the article 21 in particular
and part III as a whole. So, if right to privacy
is a fundamental
right then why is it acceptable for the husband to infringe it?
Isn't the wife entitled to her personal space at home? Why can't she raise
her voice against the violation of this fundamental right? Why is it so
difficult for us to realize that because of this patriarchal society, women
are suffering the most? In respect of the Puttaswamy judgment, the
judiciary should enlighten themselves with this issue and take steps to act
upon them. Marital rape is the betrayal of love and trust, leading to severe
mental and physical trauma which is merely impossible to overcome.
It is believed in the Hindu culture that in a marriage, all the issues and
fights between the husband and wife should stay within four walls whether
they are sorted or not. But, an injustice like this should not be kept
hidden within those four walls as it can be very traumatizing and can affect
the wife's mental health completely.
According to the society, breaking of a marriage has always been looked upon
as an unholy thing and a social taboo. Our society considers a marriage as a
fairy tale with a happy ending turning a blind eye to anything that proves
otherwise. But what the society needs to understand is that such issues
faced in a marriage are not normal and what the wives go through is not what
So, if a wife files a complaint against the husband on the charges of
marital rape or domestic violence which later leads to their divorce, the
victim should know that the divorce isn't her fault and a marriage where she
has been raped is no excuse to continue suffering.
The man should be blamed for this as, by marrying him, the wife did not sign
up to be treated like a piece of meat to fulfill her husband's desires. As
humans our priority should be on how to take care of the victim, telling her
about how she doesn't deserve to be treated that way instead of forcing her
to live with her perpetrator for her entire life. For the betterment of the
society and the health of these victims, such matters should not be kept
within those four walls and the rapist, regardless of being her husband,
should be subjected to the same punishments.
There have been cases where even our law thinks that the marriage is of the
utmost importance and it shouldn't be destroyed. One of the cases is of Harvinder
Kaur v Harmender Singh, where the court commented upon the applicability
of the constitutional rights, mainly that of Article 14 and Article 21
within a family. It stated that, introduction of Constitutional law in the
home is most inappropriate.
It is like introducing bull in China shop. It will be a ruthless destroyer
of the marriage institution and all that it stands for. In the privacy of
the home and married life, neither Article 21 nor Article 14 has any place.
In a sensitive sphere which is at once most intimate and delicate, the
introduction of cold principles of Constitutional Law will have effect on
weakening of marriage bond.
This case was later challenged in another case of Sareetha v T Venkata
, failing to improve the situation. The Apex Court then later
commented upon the same matter in the case of Saroj Rani v Sudarshan
by saying that:
The introduction of equality clause
within home will destroy the institution of marriage.
In India, according to the laws which are made for the citizens, the main
motto is that no innocent should be punished even if it means to let the
guilty walk away. Adding to that, it's important that the woman of the
country start pleading for punishment against marital rape as it is an
urgent need now.
The main issue to be raised by the women in the country should be that is
rape considered to be a violation of a fundamental right? If yes, then why
do the laws and the society differentiate between a husband and a stranger?
In this century, women are considered equal to men in all respects, such as
education and the opportunities. Then, why is a married woman not protected
against marital rape?
The problems stated by the society are that if the marital rape is
criminalized, it would break the marriages and also men could be wrongfully
tortured due to that law. But, just because of these misconceptions, it
becomes difficult for the women to raise their voices.
Our law keeps changing according to the society's needs and requirements. It
is not static and to get a change in our judiciary system, all the citizens
should understand the consequences of marital rape and only then could it be
criminalized. It is first the mindset which has to be changed in accordance
to expect the criminalization of marital rape. There should be laws to
protect the victims of marital rape as this issue is reaching its peak at an
It is unfair for a woman to suffer in a marriage where she feels trapped and
dies a little every morning when she wakes up next to her rapist. Hence,
India needs to give justice to all those wives who can't speak up because
the judiciary does not call marital rape an offence punishable under law.
- 52 countries criminalized marital rape, hc told
- (1991) 174 CLR 379
- (2011) 2 SCR 40
- AIR 1984 Delhi 66
- AIR 1983 AP 356
- 1984 AIR 1562
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