We are now considerably more advanced and live in a society that has undergone
significant transformation. Historically, in our male-dominated society, men
received greater rights and were viewed as superior to women. They were only
seen as being useful for Chulha-Chauka
and rearing children. However, things
have been improved since then. They now have equal status does men have and walk
shoulder to shoulder. Government has passed numerous laws to support their
empowerment and has introduced various upliftment programmes, which is truly
However, married women are victims of hostile treatment they receive by their
husbands. Through reports and media, we are exposed to numerous instances of
marital rape. Marital rape means an offence of rape committed by a spouse on the
other within the jurisdiction of the institution of marriage without her wish,
will or consent.
Married women have been facing marital rape since long, though it hasn't been
criminalised but amounts to domestic violence, sexual harassment. Thus we can
argue that it is being used as license for sex, abuse, domestic violence, having
life time validity.
The term 'Marital Rape' is new. However, the aggressive treatment that woman
experiences from her spouse is not unusual; it happens frequently. Just wonder
how difficult it would be for a woman. Because one side she has to satisfy his
husband's sexual desire irrespective of her consent just to save her married
life and on the other hand it's her self-dignity and respect that's least being
It's acceptable and legal to have right of sexual pleasure after
marriage, but it can't be done without consent of partner, as anything without
consent in eyes of law is illegal, against the rule of law and also against
one's dignity and respect.
Marriage, Which We Treat As A Holy Institution Is Getting Exploited. Isn't
Marriage is an institution that ties two individuals in a sacred bond of love.
It is a legal union between two consenting adults. Marriage builds the purpose
for smooth running of this creation. Our society is a varied mixture of numerous
religions and castes. In some religions like Christianity and Islam, marriage is
a contract wherein two consenting individuals vow to stay for each other in
every walk of life. While in other religions like Hinduism, marriage is a
sacramental bond between two consenting individuals.
The term rape originated from the Latin rapere (supine stem rapture), "to
snatch, to grab, to carry off". In Roman law, the carrying off of a woman by
force, with or without intercourse, constituted "raptus".[i] Rape is forcefully
harassing a person to make sexual relations. According to Oxford Learner's
Dictionary "Rape is the crime of forcing somebody to have sex when they do not
want it or are not able to agree to it."[ii]
In 1900BC, laws for rape were first introduced in Babylon, in the Code of
Hammurapi. Both raping a virgin woman at her father's home and raping someone
else's wife were regarded as crimes. It was said that the male who commits this
heinous crime should be killed. The crime of rape was considered equivalent to
the offence of theft.[iii]
Women were considered the property of the men who
married them or the property of the father in whose house she resided since
childhood. Sexual relations beyond the scope of marriage were, hence, labelled
as the crime of adultery. Society could not accept women who were raped. She was
the property of her husband and he could use her according to his will. She was
considered 'impure' if she was sexually harassed beyond the institution of
Scenario With Respect To India
With the passage of time a number of social evils or practises such as child
marriage, Sati Paratha etc have vanished or criminalised. Having said that some
of those social evils are still in existence and continue to distress India. One
such social evil is 'Marital Rape'.
Comparing the two concepts of marriage and rape, we can say that marriage cannot
give a license to force someone to have sexual relations. Marriage should, in
itself mean 'consent'. Marital rape can be defined as forcefully exploiting
one's spouse to have sexual relations beyond her consent. The early lawmakers,
however, faced difficulties in making a stringent law against 'Marital Rape'.
The ideologies of the early ages suggested that marriage was a contract that
gave husbands the 'right to sex'. The women were expected to serve every sexual
desire of her husband after marriage. Also, they were supposed to become a
commodity that belonged exclusively to their husband.
When we talk about rape it automatically makes us think that something wrong has
happened to a girl, mainly without her agreement. Marital rape is no different
from it but with a minute change, as the term suggest it is an act where a
spouse without the consent of other spouse perform sexual intercourse with his
or her partner. If we are calling it rape then how is it different? Why it's not
criminalised? Isn't it wrong on the part of married woman and in violation of
During ancient period, marital rape had the legal backing on the ground that a
spouse is entitled to have sexual intercourse with his or her spouse, moreover
in India marital rape has been considered as a domestic violence. Though
everyone along with the Supreme Court supports the rape victim, but remain
impasse when it's marital in nature. Only by considering the fact that a woman
is married to a man will not give him the right over her body, that too without
Consent refers to a woman's clear-cut expression of her desire to engage in a
particular sexual act through gestures, words, or any other kind of verbal or
non-verbal communication. With the caveat that a woman who does not physically
object to the penetration act shall not be taken to have consented to the sexual
activity only on the basis of that fact.
Laws Regarding Rape In India
In accordance with section 375 of the Indian Penal Code, rape is defined as
"sexual intercourse with a woman against her will, without her consent, by
coercion, misrepresentation, or fraud, or at a time when she is intoxicated or
duped, or is of unsound mental health, and in any case, if she is under 18 years
Characteristic Which Is Under Section 375:
- Against her will
- Without her consent.
- With her permission, when her permission has been secured by instilling
fear of harm or death in her or any person she is interested in.
- Having her consent and knowing that she is not legally married to him,
even if she thinks she is, and that she is giving him her consent because
she thinks she is.
- With her consent, when, at the time of providing such consent, she is
unable to grasp the nature and consequences of that to which she provides
consent due to mental incapacity, intoxication, or the administration by him
directly or via another of any stupefying or unwholesome substance.
- While she is under sixteen years old, with or without her consent.
Considering the last characteristics, in women centric legislations, the minor
age is till to the age of 18. And it's not settled because if the victim is
above the age of 16 it won't be considered as rape whether done consensual or
non consensual intercourse. In independent thought case it was argued that the
age limit of girl to be recognised as victim of rape is arbitrary and it must be
amended and make it to the age of 18. Its our legislature's lethargy that
neither any amendments have been made nor any laws regarding it has been
Any sexual act performed by a male on a woman against her will or consent is
considered rape, according to section 375 of the Indian Penal Code of 1860.
According to the first exception, a medical operation or intervention is not
considered rape. The second exception stipulates that, as long as the wife is
older than 18, raping her would not be considered rape.[iv]
Marital rape is not criminalised but if a woman wants to file a complain against her husband, she
can file a case under other provisions of IPC such as domestic violence,
mistreatment, as well as file divorce. This exception in itself is against the
fundamental rights of a married women as it is in contrary to her right to
dignity, right to privacy and equality.
Article 21- Right To Life And Live In Human Dignity
Every citizen is guaranteed right to a healthy life under Article 21 and if it
gets violated, they can seek for constitutional remedies under article 32 of the
Indian constitution.[v] Additionally, there is a well-known landmark case
involving rape called "The chairman, Railway Board vs. Mrs. Chandrima Das & Ors
on 28 January 2000. In this case, Supreme court ruled that rape constitutes a
crime against both the victim and society at large. Rape is a heinous act which
disturbs the victim as well as the entire society.[vi]
Right to Privacy
Recently right to privacy was in the air where even the Supreme Court agrees to
the encroachment of personal space and privacy. The Supreme Court unanimously
declared right to privacy to be a part of Article 21. A woman is entitled to
right to privacy where no one is allowed to encroach or invade in her privacy.
With the increase in number of crimes against women, a loophole can be atrocious
to them in a man driven society which is inclined to patriarchy.
If talking about rights in India, there is no right above fundamental rights, so
if the contention is between a men's patriarchal right of control over his wife
and a woman with her fundamental rights of living with dignity, privacy and
pre-dominantly equality, the precedence should be given to the woman's Right.
The Hon. Supreme Court in Independent Thought vs Union of India also assessed
the relevant legal circumstances and found that exemption 2 under Section 375 of
the IPC is arbitrary and in contravention of the values expressed in Articles
14, 15, and 21 of the Indian Constitution. The exemption was accordingly altered
to read as follows: "It is not rape when a man engages in sexual activity with
his own wife, provided that she is not under the age of 18."[vii]
False Cases Regarding Abuse, Cruelty, Domestic Violence And Sexual Harassment
Every coin has two sides, and the same principle stands true here. In 2017 the
Centre had contested the arguments, claiming that making marital rape a crime
may cause instability in the institution of marriage and make it simple for
wives to harass their husbands.
Data from the NCRB shows that out of 1,67,067
cases, 5,520 were found to be untrue in terms of spouse abuse.[viii] Even though
there have only been a few false instances reported, nobody knows if such
incidents will become more frequent. As many instances of false rape and
domestic violence cases have already been heard and reported recently to us
through various means and sources.
To substantiate the claim, in case of Veena vs Naveen
in which she had
repeatedly filed complaints, each of which turned out to be untrue. Also,
several complaints were made in an effort to link her husband and in-laws'
family's male members to sexual harassment charges, but in both instances, her
account was disbelieved after going through the facts and investigation,
allegations made were found to be false and defamatory.[ix]
Also the judgement by Hon'ble Supreme court in the case of Raj Talreja vs.
Kavita Talreja, civil appeal no. 10719 of 2013, decided on 24.04.2017, wherein
it was determined that the wife had filed false complaint against the husband
after she had injured her own person.[x]
To deal with false cases of domestic violence, sexual harassment etc in which
husband get falsely accused by their wives after making false allegations. Of
course there is need of criminalisation of marital rape but still to not make it
biased we should have proper laws so that none of the married partner get over
ruled by the law.
Proper investigation team dealing with rape cases whether
general or marital in nature can be formed to make it efficient working agency.
As going through the above false cases it is very clear that to have a gender
neutral society there is need to look into the matter not just on the basis of
feminism or on ideology that women would be right but on the basis of facts and
matters of the case. As every problem comes with a solution, same can be done
with proper planning, strategy and enforcement.
As the transient period of male dominated society inching towards termination,
both male and women are provided with equal rights in accordance with law.
Although men continue to oppress women through social evils like cruelty, dowry
deaths, and a new issue called marital rape. But above mentioned cases that
turned out false also strikes our mind not just to be biased on a side that men
only are liable and guilty in every case and same can't be presumed without
going through matter and facts of the case.
Rape is defined under Section 375 of the Indian Penal Code 1860 as any
penetration of a man's penis into a woman's mouth, urethra, or vagina without
the woman's consent, will, or knowledge. Though the same offence is not
considered as rape when committed within the institution of marriage, as
mentioned in exception 2 of section 375 IPC. Thus, the exemption 2 to the Indian
Constitution's article 14, 15, and 21 has been held to be violative by the
Hon'ble Supreme Court in the case of "The Independent Thought Vs Union Of
". Cases of marital rape are being treated as the matter of domestic
violence in the eyes of law.
As women are forced to compromise with their privacy and dignity for the sake of
satisfying their husband's sexual desire in order to save her marriage. As right
to live with dignity and right to privacy comes within the purview of Article 21
so it's violation of the same Article and also domination of one gender on other
violates both Article 14 and 15 as well.
As contended from the side of the victim that raping a woman (whether married or
not) is not only rape with her body but also means to rape her fundamental
rights. On the contrary it was also contended that criminalizing marital rape
would be a great step to encourage women for misusing their rights and will be a
threat to religious sacrament. Considering the contention of both the side it is
necessary to widen the scope of exception 2 of section 375 of IPC.
- Wikipedia, available at: https://en.wikipedia.org/wiki/Rape (last visited
on Aug 3, 2022).
- Oxford learner's dictionaries, available at: https://www.oxfordlearnersdictionaries.com/definition/american_english/rape_1
(last visited on Aug 3, 2022)
- A Brief History Of Rape Law sites.williams.org, available at: https://sites.williams.edu/engl113-f18/flagler/a-brief-history-of-rape-law/
(last visited on Aug 3, 2022)
- Business Standard, available at: https://sites.williams.edu/engl113-f18/flagler/a-brief-history-of-rape-law/
(last visited Aug 3, 2022)
- Lawyered, available at: https://www.lawyered.in/legal-disrupt/articles/right-privacy-fundamental-right-india/
- Railway Board vs. Mrs. Chandrima Das & Ors, AIR 2000 SC 98.
- Independent thought vs union of India, AIR (2017) 10 SCC 800
- The News Minute, available at: https://www.thenewsminute.com/article/what-data-false-rape-cases-doesn't-t-tell-us-163631
- Veena vs Naveen, AIR 2017 CM-5871
- Raj Talreja vs Kavita Talreja, AIR 2013 (2) LRC 349 (SC)
Award Winning Article Is Written By:
- Mr.Rishabh Raj, 1st Year Student At B.A.M.U, Manikchand Pahade Law College
- Mr.Ritik Sinha, 1st Year Student At B.H.U, Faculty Of Law
Authentication No: AU222448289184-12-0822