File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Marital Rape: A Legal Crime

Marital rape is the act of sexual intercourse with spouse without the consent of that spouse forcefully. It is a form of domestic violence and sexual abuse which the strong women have to survive. This is not a myth, marital rape do exist so much that women have to suffer both physically and emotionally. 

That undesired sex in not more than Prostitution.

The law assumes that once a woman has married she has given up her right to say ‘No’ for sexual intercourse. Therefore, there are no provisions to protect a woman above 15 years of age from this sort of ‘legal rape’. India is one of the 36 countries that has yet to criminalize marital rape.

Background
Marriage is a sacred institution; it’s a collaboration of two soulsMarriage is a bond of trust, respect and love.

We have heard of such beautiful quotes and sayings many a times, which describe the meaning of this devout institution – called marriage. But is the sanctity of marriage alive?

Marriage is a holy institution but not a license to rape. The presence of consent of both spouses to have intercourse helps maintain the sacred nature of marriage with dignity and respect. Marital rape exists – Yes, consensual sex does exists between a husband and a wife, but the moment he or she says no for sex (intercourse) and is forced to do so it becomes rape. .
Enforcing something in the name of religious ritual or patriarchy isn’t justified by any standards.[1] In order to exclude marital rape from the ambit of rape law, three justifications have been provided. 

The first justification was provided by Justice Mathew Hail (1609-1676) the former chief justice of England. He said through the contract of marriage, she grants her sexual autonomy to her husband in return for his protection, so she cannot revoke sexual intercourse.

The second theory relied on was the property theory. The woman is before marriage the property of her father and after marriage becomes the property of her husband. So a man is entitled to use his property in the manner he deems fit. The question of husband raping his wife does not arise.

The third justification for marital rape exemption is the unification theory. The rationale behind this exemption was the doctrine of unity in marriage. A man and women are merged into a single legal being upon marriage; since he wife has no legal existence outside of her husband’s identity, it is not legally possible for a man to rape his wife.[2]
1 in 3 men admit to raping their wives and 1 Indian women is raped by her husband every 3 seconds.[3]

Why Women suffer?
Everyone wants to be happy in this world and do everything in order to fulfill this wish until their hands are tied. In the instant situation, women’s hands are tied because of poverty, illiteracy, financial dependence on the partner (husband in majority of cases), religious belief, and pressure from society, values and many others.

Legal Aspect
According to exception 2 of Section 375 of the Indian Penal Code, the sexual intercourse between a husband and wife, who is more than 15 years of age, will not be considered as a rape.
This exception frustrates the purpose of Section 375; to protect women and punish those rapists by discriminating between the unmarried and married. This exception is, in a way, giving the right to husband to engage in forceful sexual intercourse with their wives.

According to Section 376 of Indian Penal Code, 1860 the one who commits rape shall be punished with imprisonment of either description for a term from seven years to life imprisonment or it may extent to ten years along with fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or both.

This can be seen clearly seen that these provision have not been included with a single point to criminalize marital rape rather they have legalized it. This is where the law shall come into picture and amend these provisions to protect the suffering married women and allow people to exercise their Right to Equality mentioned in Article 14 of The Indian Constitution, 1950 which states that every citizen has right to equality and equal protection of laws and Right to Life guaranteed in Article 21 of The Indian Constitution, 1950.

In the State of Karnataka v. Krishnappa[4], the Supreme Court held that sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female. The Indian legal system has reached halfway and half of it is yet to be completed by striking down exception 2 of section 375.

A petition was filed by RIT Foundation, All India Democratic Women’s Association and a survivor of marital rape in 2015 to criminalize marital rape whose decision is being delayed till date.

Conclusion
Lord Krishna said in Bhagavad Gita,Where women are not protected and respected, civilization is sure to doom. India cannot bear to doom.

It is a crying shame that marital rape has not been criminalized by India yet.

Marital Rape is legal in India but it still is a rape and each rape leaves a scar that never heals. Countless women live in constant fear of this kind of rape then how can such marriage be sacred? The law is blurry but this matter should be raised and provisions to criminalize marital rape must be made in order to save those suffering women. This has to be realized that marital rape destroys the marriage. A unified voice must be raised so as to bring this kind of sexual abuse to an end. This is the time when Indian Legal System should bring change for upliftment of society.

End-Notes:
  1. https://sayfty.com/marital-rape-a-sordid-saga/
  2. http://www.legalservicesindia.com/law/article/1504/5/Marital-Rape-Trivialising-Consent
  3. https://www.equalitynow.org/marital_rape_is_not_a_crime_in_india_it_needs_to_be#:~:text=Section%20375%20of%20the%20Indian,before%20the%20Delhi%20High%20Court.
  4. The State of Karnataka v. Krishnappa, (2000) 4 SCC 75 (India)

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers



Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


LawArticles

Section 482 CrPc - Quashing Of FIR: Guid...

Titile

The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of th...

Whether Caveat Application is legally pe...

Titile

Whether in a criminal proceeding a Caveat Application is legally permissible to be filed as pro...

How To File For Mutual Divorce In Delhi

Titile

How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Copyright: An important element of Intel...

Titile

The Intellectual Property Rights (IPR) has its own economic value when it puts into any market ...

The Factories Act,1948

Titile

There has been rise of large scale factory/ industry in India in the later half of nineteenth ce...

Law of Writs In Indian Constitution

Titile

Origin of Writ In common law, Writ is a formal written order issued by a body with administrati...

Lawyers Registration
Lawyers Membership - Get Clients Online


File caveat In Supreme Court Instantly