Marital Rape - More than just a Myth
I say nothing, not one word, from beginning to end, and neither does he. If
it were lawful for a woman to hate her husband, I would hate him as a
rapist. -Philippa Gregory (The Red Queen)
Marriage is considered to be a holy bond between a husband and wife. However,
marriage in India automatically implies that both man and woman have consented
to sexual intercourse. It becomes an implied consent. However, marriage is not
an authorization to rape. The express consent of both the spouses (husband and
wife) to have sexual intercourse helps maintain the dignity and respect among
spouses. It is the manís duty to give respect to his wife and maintain her
Marital Rape has not been recognised in Indian Laws since the main object
marriage is to procreate and take the family forward and it is considered the
duty of the wife to fulfil the needs of the husband as and when he desires.
Though the Indian laws consider domestic violence against women as an offence
but it is mainly restricted to physical harm and torture or mental torture as
cruelty and not the sexual abuse or sexual harassment of wife.
The word Rape defined in Indian Penal Code, 1860 excludes Marital Rape because
in the era when the Indian Penal Code was drafted, the women were not considered
as a separate legal entity but as property of her husband.
The Second Exception to Section 375 of Indian Penal Code, 1860 states that
sexual intercourse or sexual acts by a man with his own wife, the wife not being
under 15 years of age, is not rape. This exception to Section 375 of Indian
Penal Code, 1860 is clearly violative of Article 14 of the Constitution of India
which guarantees fundamental right of equality before law and equal protection
of laws to every citizen of India since the Second Exception to Section 375
creates classification among married and unmarried women and denies equal
protection to married women against her husband.
Further the Second Exception
contradicts Article 21 of the Constitution of India i.e. Right to life with
human dignity. The Exception contradicts with right to privacy, right to bodily
self-determination and the right to good health, all of which have been
recognized as a fundamental part of the right to life and personal liberty by
the Constitutional Courts in various judgments.
Many countries like the United States, the United Kingdom, Australia, Belgium,
Canada, Sri Lanka, etc. have recognised Marital Rape as a crime which indicates
that the marital rape is considered as violation of human rights. However, India
has yet to recognise the same. There is still an ongoing debate to criminalise
However, National Commission of Women has endorsed a new bill that seeks to make
substantial changes to Indian Penal Code, 1860, The Evidence Act, 1872 and the
Code of Criminal Procedure, 1973 with respect to sexual harassment against women
and children. In this bill, there is a reference to marital rape suggesting that
it should be recognised as a crime under the provisions of law.
Law and Society are dynamic and change is an integral part of the law and
society. From time immemorial, we have seen various practices being abolished
from India like the practice of Sati, abolition of child marriage, abolition of
Triple Talaq and made them punishable under the provisions of law and the same
way, its high time that marital rape is also criminalized. The biggest battle in
our society is to fight patriarchy and the institution of marriage.
members' consent to marriage on a girlís behalf where marriage automatically
means consent to sexual relations with her husband without express consent of
the woman. When a woman gets married she does not relinquish her rights as an
individual, nor does she become a property of her husband.
The basic difference
between rape and consensual sex is whether the woman has consented to the act
itself or not. When a man initiates sexual relations with a woman, regardless of
the relationship they share, the absence of consent from the woman should be
given due weightage and the act must be perceived as an offence since it is no
different being raped by a stranger.
The views of the author are personal.
Written By: Mansi Batra, Advocate - Partner at Magnum Lex, Advocates &
Law Article in India
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