Before beginning the topic lets have an glance over situation of marital
Marital rape is an aspect of marriage that is surely not taken care of by
the present existing laws. It is an attempt to throw light on the aspect and the
existing laws that can be used as a defence by a partner in case of marital
rape. There are many opinions on the idea of marital law, few are in the favour
that criminalisation of marital rape should be done few are against it as the
institution of marriage and courts arenít supposed to interfere within what goes
around with a husband and wife.
Marital rape is not only the chief concern in the field of womenís rights at the
moment, but it also violates several constitutional provisions at the same time.
The idea of marital rape has always been under a limelight when it came to
the situations of India. The laws in India have extensively worked on rape,
sexual assault and sexual abuse but have turned a dead eye to the concept of
marital rape. As if marital rape doesnít exist in India, or its existence is
close to negligible, but the central government apparently claims that it would
break the values of family system and act like a strong hit against the
institution of marriage.
They also made a claim that the husbands will be
harassed if given a statutory position to women. Marital rape is generally
regarded as the act of initiating sexual intercourse with oneís spouse without
the other spouse giving consent to do so. In many forward countries, marital
rape has been criminalised and thus, it holds the same legal consequences and
statutory position as rape to any other individual.
India is currently the seventh largest country in the world, and the pace at
which the crime rates are going up is highly alarming and embarrassing for a
thriving, multi-cultural, large and secular country like India. Marital rape is
not only the chief concern in the field of womenís rights at the moment, but it
also violates several constitutional provisions at the same time.
Everyone in the world has their own perspective on whether marital rape
should attract punitive actions or it should just be treated as a part and
parcel of marriage as a broad institution. The question surrounding this matter
is whether marital rape is evidently guarded by the provisions of the Indian
Constitution and the Indian Penal Code or the said provisions deny its
The idea of marital rape generated international attention and momentum in the
mid 20th century. International bodies started working towards the idea of
marital rape and thus, to clear off the dark, hidden violence against married
women. International laws came into existence, thus, proving marital rape null
and void, but some countries still follow it as a part and parcel of the
institution of marriage.
In ancient India, marital rape had legal and social backing which backed
it up on the ground that its entitled that its right of having sexual
intercourse with his spouse, sometimes interpretative verses in the Indian
Constitution or the Indian Penal Code and the varying understanding of Courts.
However, the central government alone cannot be blamed, as it is the male
dominated set up of the Indian society that we live in. The very society gives
its men the power to commit such crimes and get away with it at the end of the
day. Marital rape, in itself, is a part of domestic violence. It is a means of
forceful control of another individualís thoughts, ideas, body and mind. It
invades an individualís Right to Privacy and Right to live a dignified life.
Laws guarding Marital Rape in India:
The Indian Constitution:Not only is the Indian Constitution a safeguard against all the wrongs
for the Indian citizens, but it also clearly demarcates whatís right from
whatís wrong. Along with rights, it also crowns its citizens the responsibility
that go hand in hand with it. Each citizen has a responsibility towards the
State and its fellow citizens.
Article 21: Right to Life and Right to Live with Human Dignity
The Article 21 guarantees each and every citizen a Right to a healthy and a
decent life without any kind of encroachment from the State or any other party.
Ones this right is violated, the victim can approach the Court to seek
Constitutional remedies against the violation under Article 32 of the Indian
In the celebrated case Francis Coralie Mullin v The Administrator, the
Union Territory of Delhi, the Honourable Supreme Court of India stated that one
cannot arrive at a perfect definition of the Right to Life. Until that, the
Courts can give varied interpretations as well.
In another landmark case i.e, Chairman, Railway Board & Others v Chandrima Das & Others, a foreign woman, Hanuffa Khatoon was raped in the Yatri
Nivas by four men belonging to the Railway Departement and thus later raped
again by a member of the Railway department where she was gagged and abused.
Hearing her hue and cry, the people from the rented flat had rescued her and she
was given Rs10 Lacs as compensation from the Court. The Supreme Court in this
regard pointed out that rape is not only a crime against the victim individual
but it is also a crime against the society at large. Rape disturbs the entire
society as well as the victim equally.
Right to Privacy: The Right to Privacy is a recent judicial development where the Court
realised that no individual should be subjected to encroachment to their
personal space and privacy. More than 150 national Constitutions give the Right
to Privacy a legal standing in their respective countries. In the celebrated
case of Justice K S Puttaswamy (Retd) vs Union of India, the Honourable
Supreme Court of India unanimously upheld the Right to privacy as an important
and intrinsic part of the Article 21- Right to Life and Personal Liberty.
This could also be interpreted in favour of marital rape. A woman is
entitled to the Right to Privacy. No one can invade her Right to privacy. More
so, she is entitled to the Right to her sexual privacy. No man or woman can
invade into another man or womanís sexual privacy.
In the landmark case of Vishaka vs State of Rajasthan, the same was observed. It
is a womanís personal right. No one can infringe her Article 21 against her
wishes. In the case of State of Maharashtra vs Madhakar Narayan, the Supreme
Court held that a womanís sexual privacy is not open to all according to their
wishes. Its her own personal right and decision and it should be respected
Indian Penal Code, 1860: The Indian Penal Code, 1860 is the main criminal code in India. It is
a comprehensive act which is divided into 23 chapters and 511 sections. The
following are the relevant sections of the IPC, 1860 in this regard:
Section 319: Hurt Whoever causes bodily pain, disease or infirmity to any person is said
to cause hurt
Section 320: Grievous Hurt The following kinds of hurt only are designated as grievous:
- Permanent privation of the sight of either eye.
- Permanent privation of the hearing of either ear,
- Privation of any member or joint.
- Destruction or permanent impairing of the powers of any member or joint.
- Permanent disfiguration of the head or face.
- Fracture or dislocation of a bone or tooth.
- Any hurt which endangers life or which causes the sufferer to be during
the space of twenty days in severe bodily pain, or unable to follow his
Section 321: Voluntarily causing hurt Whoever does any act with the intention of
thereby causing hurt to any person, or with the knowledge that he is likely
thereby to cause hurt to any person, and does thereby cause hurt to any person,
is said voluntarily to cause hurt.
Section 322: Voluntarily causing grievous hurt Whoever voluntarily causes hurt,
if the hurt which he intends to cause or knows himself to be likely to cause is
grievous hurt, and if the hurt which he causes grievous hurt, is said
voluntarily to cause grievous hurt.
Section 351: Assault who makes that gesture or preparation is about to use
criminal force to that person, is said to commit an assault.
Section 375: Rape A man is said to commit rape who, except in the case hereinafter
excepted, has sexual intercourse with a woman under circumstances falling
under any of the six following descriptions:
- Against her will
- Without her consent.
- With her consent, when her consent has been obtained by putting her or
any person in whom she is interested in fear of death or of hurt.
- With her consent, when the man knows that he is not her husband, and
that her consent is given because she believes that he is another man to
whom she is or believes herself to be lawfully married.
- With her consent, when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally
or through another of any stupefying or unwholesome substance, she is unable
to understand the nature and consequences of that to which she gives
- With or without her consent, when she is under sixteen years of age.
Now Lets have an glance over Status of marital rape in other countries:
There are many a nations who came up with laws safeguarding the rights of
womens and also they extended there laws to the rape,marital rape as well lets
know about a few familiar nations who came up with it.
- United Nations of America:
Marital rape is criminalised in all the fifty states in the Unites States
of America. However, not all the states in the United States of America treat
marital rape as a rape. But Some states like Ohio, Nevada treat them differently.
But anyhow, marital rape is a crime under some section.
For instance, in Maryland, two individuals who have separated divorce are
totally strangers to one another. Any sexual act between the two will be
considered as rapedone against will. This part of the US law is quite similar to
that of India. The same law applies to the Indian legal scenario.
twist takes place when two spouses are residing together, if one of them
coerces, threatens or uses force on the other, without the consent of the other
spouse, then a valid prosecution can take place.
Laws in the USA vary according to the state. In some places marital rape is
considered null and void by law in all its forms.
- United Kingdom:
lets know about the country who ruled us for about 200 years,In the United
Kingdom, all kinds of sexual offences are dealt with under the Sexual Offences
Act, 2003. In the UK too, marital rape is expressly considered a crime.
Section 1 of the same talks about rape. A person is said to have committed the
crime of rape.It doesnít matter whether the victim resides with the accused or
not, knows the accused or not, or is or was married to the accused or not. What
matters is the element of consent. If the victim hasnít consented to the
penetration, then it will be considered as rape.
In A landmark case in this regard is R v R. In this case, the House of
Lords held that it is possible under the English Criminal Law claimed that he
can commit rape on his wife since the wife gave him irrevocable consent by the
contract of marriage. Thus, as a reaction to this, both the House of Lords and
the Court of Appeal held that there is no exception of marital rape under the
Now lets know why marital rape is not at criminalised in India:
There are far and against arguments to this topic lets know why its not been
criminalised at in India,
- Criminalising marital rape would be an attack to the holy sacrament of
- Women can misuse the marital rape as an defence on and with every
disagreement they face with their husband.
- Criminalising marital rape for women is too woman centric.
- Marital rape is okay as long as its between the husband and wife.
- Courts cannot interfere in a personal matter like marriage...
As there are several sections in the Indian Penal Code which could be used
to safeguard a woman from marital rape. There are several sections from the IPC
which are violated when ideas like Marital Rape arenít taken seriously in a
marriage. However, countering the counter arguments, the idea of marital rape is
one that destroyes the idea of marriage because it is a womanís own husband that
forces her for sexual encounter, whom she trusts and has faith to protect her.
As one can see that the country of England has made much progress in accepting
marital rape as a flaw and making laws towards it. Not far behind is the United
States of America, which has banned marital rape in few states now.
Taking into account the laws of other countries in comparison to the Indian
nation, India is far behind from taking a step to create an exclusive law for
MARITAL RAPE at the moment. Till a new law comes into being, the provisions
from IPC and the Indian Constitution could be used as a defence. However, in
the changing times every law needs to go through a change as one is discovering
new things everyday and human mind is constantly evolving, and laws to be also
changed according to time and the situation and socital needs. Thus, till a new
law is in place, one can use the existing laws for defence but not to defeat the
social evils like this.
Marital rape, without a doubt, is a violation of a womanís right to dignity and
wellbeing and thus, for a progressive country like India to thrive, a law
should be brought into place.maybe laws like Uniform Civil Code.
A nation cannot be developed and considered superior until and unless the both
men and women are bought together and treated equally majourly the womens in all
To call an nation to be developed we both have to walk hand in hand to lead the
nation from the darkness to light and death to life it must migrate the fears of
social evils in the society then the light sparkles for the tourch of our nation
and spread throughout the universe.
I want to compare the situation of womens and girls in India to an bird say
pigeon in a cage and men as eagles flying in the sky is fredom only ment for
eagles? I say release the pegions from the cages[remove restrictions] then we
all will witness that they to can fly high above the sky and I am sure that fly
more swiftly then Eagles out there.