India and Indian law and its recognition towards the rights of a women have
evolved over a period of time and abundant has changed over decades and it has
been possible because of judicial activism, understanding the scope and
relevance of human rights and right interpretation of the term equality to a
certain extent. Although feminism is mis-interpreted by many and the whole
phenomena has created a social stigma it has failed in certain areas.
still subjected to cruelty, no doubt there are women that have mis-used the
provision against cruelty but the question is what about the women who are
denied justice against a legal crime called marital rape. What if marital rape
is amounting to cruelty? Many judgements say that a woman gives consent to
sexual intercourse at the time of marriage therefore making it a mutual and
Many women are unable to even realise the fact that they are
subjected to cruelty every time they are being forced in so many ways example if
an intoxicated man forces himself on his wife in way that she has suffered both
physical and mental pain and man takes the defense of marriage after such abuse.
Isn't this a clash to with the main purpose of article 21 of the constitution?
What Is Cruelty?
According To IPC
Any intentional, deliberate, wilful act against a woman by her husband or any of
the relatives of the husband which drives her to commit suicide or causes any
harm to her either mentally or physically. Harasses her mentally or physically
with an intention to coerce a woman into meet unlawful demands like property or
security etc or harassing a woman on account of failure of fulfilling a demand.
Now if a man uses force against his wife in lieu to any of the abovementioned
intentions and causes same or even worse impact on her and gets a way out as it
is a right of a man as per the law and continuously subjects her to the same and
takes the shelter of immunity under section 376 for marital rape then a woman
has no resort against such abuse and cruelty.
According To Judiciary
In case of as Jayachandra vs. Aneel Kaur (02.12.2004 - SC) : MANU/SC/1023/2004
cruelty was interpreted as a willful and unjustifiable act that has caused
danger to life limb or HEALTH or mentally or such act has given rise to a
reasonable apprehension of a it was further held that cruelty can be physical,
corporal or mental or any act of a spouse that has considerably and legitimately
caused harm to the mental welfare of the other spouse will amount to cruelty.
In a very broad sense it was also held that "cruelty may be mental or physical,
intentional or unintentional" the meaning and scope of cruelty and its
interpretation has increased enormously without the judiciary has been
considering every aspect that can amount to cruelty. A women no doubt has
consented to have sexual intercourse with the husband but she in now way owes
her body to the husband or anybody as an individual it is her right against her
body and dignity.
In another case of S. Hanumantha Rao vs. S. Ramani (31.03.1999 - SC) :
MANU/SC/0220/1999 it is held that cruelty is an act of a spouse resulting in
causing mental pain which results in making it impossible for the other party to
live with the spouse.
In another case of Shobha Rani vs. Madhukar Reddi
(12.11.1987 - SC) : MANU/SC/0419/1987 it was held that cruelty in matrimonial
proceedings need not necessarily require the element of malignity, it was
defined as an act of a spouse that adversely effects the other and such act can
either be intentional or unintentional.
The meaning of cruelty might differ from
case to case depending on the situation and circumstances it does not have a
rigid and a definite meaning. We have to bear in mind the purpose behind the
purpose behind the enactment of a provision of 'cruelty' to protect women.
What Is Rape?
According To IPC
If a man penetrates any penetrates any thing in the vagina, urethra, mouth or
anus of the body without her consent it will amount to rape. As per IPC. Consent
and force are the two key words that are to be pointed out to throw light to
this context from the elaborate explanation under section 375 of IPC.
According To Judiciary Madan Gopal Kakkad vs. Naval Dubey and Ors. (29.04.1992 - SC) :
MANU/SC/0509/1992 it was held that it was held that women woman in our country
unfortunately are un a disadvantaged position in the society due to several
social barriers and impediments therefore the become a victim of tyranny at the
hands of men though they enjoy equal status as men constitutionally.
have right to life and liberty. It was further held that rape is not a crime
only against a woman it is a crime against society it destroys the psychology of
a woman and pushes her into deep emotional crises. And rape is the most hated
crime in the society it was also held that rape is an act violating a basic
fundamental right given by article 21 of the constitution. As per the
psychiatrists' rape is less of a sexual offence than an act of aggression aimed
to degrade and humiliate a woman.
In a case of Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511 it was held that the
licentious and profligate conduct is not considered a part of normal conjugal
life. Therefore insatiable urge for wealth and sex of a spouse would amount to
As per a research conducted by WHO 27% women have suffered sexual
violence and succumbed and the average age of those women was 15-49 violence
against women globally and it being legal against a wife makes woman more
vulnerable to such crimes. Another study of 930 San Francisco found that there
were around 8% of survivors against marital rape while another study of 323 10
percent were married women cohabiting with each other were survivors of marital
Another study by UNODC United Nations Office on Drugs and Crimes concluded that
developing and implementing effective strategies to combat gender-based
violence and legislation to address, sexual violence and marital rapes can
provide tools to protect women undergoing such suffering and to insure there is
no impunity for such crimes. After Universal Declaration of Human Rights and
Convention on Elimination of all forms of Discrimination against Women (CEDAW)
17 countries have made marital rape a criminal offence.
Article 14 of the constitution provides: Equality before law, and equal
protection of law, but with an exception of reasonable classification. How is it
any different if a woman is raped by her husband suffering equal or more danger,
mentally and physically. Is it giving right message to the youth of the country
to legalise such a huge and terrible act?
Reasonable classification must be based of Intelligible differentia and the
differentia must have rational nexus. When a woman has suffered similar damage
and harm and her dignity is taken away as though a woman owes her body then is
it an intelligible difference to make 2 different classes of these woman.
No doubt the provision might be mis-used but it the duty of the court and the
investigators to determine if the provision is mis-used or there is actual crime
committed. The whole purpose of the justice system with respect to that woman is
vitiated if a crime against her body and her dignity is not considered.
Judiciary to a very first step in considering plight of these women suffering
marital rape in the case of X v. X, Mat. Appeal No. 151 of 2015, decided on
30-07-2021 it was held that marital rape is a valid ground for divorce therefore criminalising it.
It was held that:
Treating wife's body as owing to husband and
committing sexual act against her will is nothing but marital rape.
It was also
held that the present law of divorce in India has to stand the test of
constitutionality as it depicts a sordid tale of a woman losing a precious part
of her life In a battle. It further held that the struggle if a woman within
clutches of law to give primacy of choice not to suffer in the bondage of legal
Marital rape is not just a legal crime it does not even stand as a valid ground
of divorce. Which means a woman cannot even seek divorce if she is subjected to
marital rape. She is forced to continue the relation, cohabitation and marriage.
Marriage no longer remains a bond but becomes a burden on a wife. Is this
contract of marriage so absolute that the constitutional right of a women could
be violated? It is right of every single individual in the country to live life
with dignity and liberty and it should not be taken away merely because a woman
is bound by a marriage.