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Marital Rape: An Unaddressed Stigma

She is my wife, I am legally married to her, thus, I have complete and sole right over her body, her consent is not necessary for me.-- Indian Patriarchal Society

Women in Indian Culture have been exposed to universal and male centric considerations since days of yore. Spouse is considered as God by the general public and hence women undoubtedly submit to their husbands and satisfy their desires and requests. Post marriage they are considered as their better half's property. In 2013 corrosive assault and voyeurism were incorporated as wrongdoings and the period of assent was expanded, in any case, Conjugal Assault was not condemned.

According to Indian Culture condemning of Conjugal Assault would prompt the defeat of the establishment of marriage. Conjugal Assault which happens in a hallowed connection between two individuals leaves a deep-rooted scar on a women's spirit which cannot be ignored as a right of the spouse for the sake of establishment of marriage. The essential freedoms of ladies have been disregarded for the sake of marriage. In any means men must understand that NO means NO, and it should be perceived by men regardless of whether he is a spouse.

Women have been exposed to different types of brutality and maltreatment from society during each period of their life. Since days of yore women have been taught to adjust in a marital relationship. Marriage is an unadulterated obligation of two individuals as well as two societies, religion, and families. Nonetheless, even today in the 21st century men are lawfully furnished with a right over the spouse's body. Women are considered as their husband's property thereby giving them the sole right over her. The Indian male centric culture neither comprehends nor thinks about the assent of the spouse as a significant component.

Conjugal assault influences the lady's emotional well-being. It leaves imperceptible scars on a lady's body and psyche which are difficult to heal. In India there are different regulations to safeguard women from dowry, aggressive behavior at home, female foeticide and many more. More than 100 nations have condemned conjugal assault; nonetheless, even today Conjugal Assault is not considered as a wrongdoing in India.

Non-Criminalization of marital rape in India springs from Exception 2 to Section 375. The definition of rape codified in Section 375 of the Indian Penal Code (IPC) includes all forms of sexual assault involving non-consensual intercourse with a woman. Exception 2, however, exempts unwilling sexual intercourse between a husband and a wife over eighteen years of age from Section 375's definition of "rape" and thus immunizes such acts from prosecution.

Marital Rape in India
The word "rape" is derived from the Latin term rapio, means "to seize". Rape literally means a forcible seizure. It means the ravishment of women against her will or without her consent or with her consent obtained by force, fear or fraud or the carnal knowledge of a women by force against her will. [1]

Conjugal assault alludes to intercourse between a man and a lady, who are legitimately acknowledged as a couple, where the lady does not give assent for such intercourse. Marriage in India is considered as a hallowed obligation of two spirits. The Indian Culture presents upon man the option to perfect marriage regardless of the assent of ladies. 'Assent,' of a lady is not considered necessary in the bounds of marriage.

Nonetheless, marriage does not give men right over their spouse's body. The spouse ought to have the freedom to decline. Indeed, even today the legal framework in India does not perceive conjugal assault as a wrongdoing. It is a begging to be proven wrong issue on which up to this point, no end has been drawn. Conjugal Assault otherwise called Spousal Assault is an assault committed by one life partner against the other.

Post the Nirbhaya Assault case which shook the soul of the country, a committee was set up headed by Justice J.S. Verma, to investigate potential corrections to criminal regulation for guaranteeing faster preliminary of and more brutal disciplines to, individual blamed for perpetrating rape of outrageous nature on ladies.

The board in its Report proposed correction and replacement of segments 375, 376 and 376 A to 376 D to the Indian Penal Code for making the law connecting with rape on ladies and young ladies more viable and obstruction. Most of these proposals were given administrative impact. The council likewise suggested condemning conjugal assault. In any case, conjugal assault was not condemned.

Although S375 of IPC proposes discipline for laying out actual relations without the assent of ladies it slices for a special case for conjugal assault by excluding from its definition, 'reluctant sex among a couple, spouse being over 15 years.' Conjugal assault is considered as a wrongdoing in 18 American states, 3 Australian states, Canada, Israel, France, Czechoslovakia, Sweden, New Zealand, Poland, Denmark, Norway, and Soviet Union.

India has the most elevated crime percentage with particularly violations against ladies. Be that as it may, Conjugal Assault is not considered as a type of grave wrongdoing against ladies. Conjugal assault is a wrongdoing which influences the casualty as well as the general public overall as seen in Bodhisattwa Gautam v/s Subhra Chakraborty. [2]

Fundamental Rights Violative Upon Marital Rape
Certain basic privileges ensured to a wedded ladies against conjugal assault incorporate Article 14, Article 19 and Article 21 of the Indian Constitution.

Article 14 ensured Right to Fairness, be that as it may, with regards to the privileges of a wedded ladies, they are dealt with inconsistent concerning their male accomplice. Ladies in India are not viewed as equivalent to their accomplices.

In Joseph shine v. Union of India,[3] the Apex Court stated that the husband is not the master of his wife. In case of West Bengal v/s Anwar Ali Sarkar[4] the court stated that S375 of Indian Penal Code has been violative of the privileges of the wedded ladies and that the wedded ladies ought to be treated as equivalent to their significant other.

Article 19(1)(a) guarantees Right to Freedom of Speech and Expression. Be that as it may, the option to say No and the assent of ladies is not viewed as fundamental and in this way disregards a wedded women's right to freedom of speech and expression.

Article 21 guarantees every person Right to Life and personal Liberty, it includes Right to Privacy, Right to Bodily autonomy, right to enter into voluntary sexual intercourse, right to give and revoke consent and every facet of a dignified life. The Supreme Court in Suchita Srivastava v. Chandigarh Administration [5] stated that right to make choices in sexual activity is also included under the right to personal liberty.

In the case of K.S. Puttuswamy v. Union of India [6] the Supreme Court recognized the right to privacy as the fundamental right. Thus, any forced sexual intercourse does violate their privacy which is their fundamental right. In State of Haryana vs Janak Singh[7], the court stated that rape is one of the most heinous crimes committed against women. It insults her very existence and erodes her honour and harms her personality and lowers her confidence, thereby violating her right to life guaranteed under Article 21 of the Indian Constitution.

The Indian culture considers marriage as a ceremony or a consecrated agreement between a couple and consequently considers marriage as a suggested suspicion to assent for sexual living together. It will not acknowledge the word assent. As indicated by the general public on the off chance that regulations are established to condemn conjugal assault the ladies would, abuse the said regulations and irritate the people for not a great explanation.

The Apex court in Arnesh Kumar vs State of Bihar [8] stated that:
The criminalisation of marital rape will lead to downfall of existing social and family systems.

Laws In Indian Constitution To Seek Protection Against Marital Rape
Unfortunately, there are no immediate regulations in India to give alleviation to ladies from the psychological and actual injury and the outrages looked by them because of their spouses. Notwithstanding, ladies can look for security under Section 498A of Indian Penal Code. Section 498A of Indian Penal Code states that whoever, the spouse or the family members of the husband subjects ladies to brutality will be rebuffed with detainment for a term which might reach out to three years and will likewise be at risk to fine. The Protection of Women from Domestic Violence Act incorporates sexual maltreatment under its ambit home.

There have been decisions wherein the courts would not consider Conjugal Assault as a wrongdoing against ladies and that it ought to be condemned. In one case the young lady who got married in 2020 was proclaimed as deadened underneath midriff by virtue of constrained sexual relations in a month of marriage.

The Bombay Court while conceding expectant bail to the blamed spouse held that:
Husband having sex with his significant other against her desires cannot be said to have committed any unlawful thing.

In one more case Judge NK Chandravanshi of Chhattisgarh High Court excused a request recorded against a 37-year-elderly person by his better half and held that, 'Sex or any sexual demonstration by a husband is not assault regardless of whether it includes force.

Women's Sexual, Reproductive and Menstrual Rights Bill 2018 was presented in Lok Sabha by Shashi Tharoor. The bill stresses the organization of a lady in her sexual and regenerative privileges and ensures feminine value for all ladies, yet in addition proposes condemning Conjugal Assault. Be that as it may, the bill neglected to accumulate the consideration of the public authority.

The former Chief Justice of India SA Bobde had stated that:
However, brutal the husband is...when two people (are) living as husband and wife... can sexual intercourse between them be called rape? In UK Conjugal Assault was considered as wrongdoing in the well-known R versus R judgment.

The spouse for this situation contended that marriage gave and inferred and permanent assent, which was rejected by the court and accordingly he was punished. Despite that India has acquired its reformatory regulations from the English, the idea of conjugal assault is not considered as a wrongdoing in India.

Assault is a grievous and one of the gravest types of wrongdoing perpetrated against ladies. Wrongdoing in any structure leaves a scar on a womens spirit. It break down the actual wellbeing as well as influences the emotional wellness of her. Conjugal assault is an infringement of the key freedoms of ladies.

In Hrishikesh Sahoo vs State of Karnataka[9] the court held that:
A brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape.

Marriage cannot be named as a permit to have command over ladies' body; notwithstanding, the male centric culture of our nation has imbued the way that a spouse is a sole proprietor of his significant other and has total directly over body in the personalities of men.

A women can guarantee security just under Section 498A of IPC and under The Protection of Women from Domestic Violence Act from abusive behavior at home. Although it gives specific help to wedded ladies under the previously mentioned segments however it prohibits the term conjugal assault and does not think about it as a type of wrongdoing under S375 of IPC. The wrongdoing of aggressive behavior at home is not quite the same as that of Conjugal Assault and subsequently, there is a requirement for a devoted regulation to shield ladies from Conjugal Assault.

  1. Bhupinder Sharma V. State of Himachal Pradesh, (2003) 8 SCC 551
  2. (1996) 1 SCC 490
  3. (2018) 2 SCC 189
  4. 1952 SCR 284
  5. (2009) 9 SCC 1
  6. (2017) 10 SCC 1
  7. (2013) 9 SCC 431
  8. (2014) 8 SCC 273
  9. 2022 SCC OnLine Kar 731

Award Winning Article Is Written By: Ms.Falgu Mukati
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