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Marital Rape: Irrecognizable Offence

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Rape by an outsider is a penal offence under section 375-376 of IPC. Shockingly, sex by the spouse with his better half without her consent is marital rape and it is not an offence. 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. However, Exception 2 of section 375 exempts unwilling sexual intercourse between a husband and wife over fifteen years of age from section 375 definition of “rape” and thus immunizes such acts from prosecution. While in almost every country the unwilling sexual contract between husband and wife is considered as an offence, but India is one of the thirty-six countries that till have not criminalized marital rape. The Supreme court of India and various High Courts are currently dealing with writ petitions challenging the constitutionality of this exception and in a recent landmark judgement Independent Thought vs. Union of India, the Supreme Court criminalized unwilling sexual contact with a wife between fifteen and eighteen years of age.

The Indian culture and families have constantly observed women as insignificant property of their family and have never given such importance to them. We all say there is equality in our system but only in words, speeches of politicians and obviously in books. We cant see that equality in this practical world. Everyone is getting modernized by the time but when we talk about women & their status which is the same and nothing has changed. This belief system has impacted our legislatures in disregarding offence of spouse rape by giving it shield of wedding right of the spouse and by this women are continuously and calmly tolerating that ladies have to satisfy their spouse satisfaction with no will of her own over her sexuality.

This discernment has laid down ladies entitlement to uniformity and equity. Marital Rape is nowhere explained in Indian laws. Rape has been defined under section 375 of IPC but the exception 2 of this section speaks that intercourse with his wife if she is under the age of 15 years then it amounts to rape. Hence marital rape is viewed as rape if the spouse is under the age of 15 years. There is no lawful provisions made for spouse elder to 15 years which is against human rights and provision of rape of spouse shields from sexual mishandle just up to the age of 15 years.  

In 2005, the Protection of Women from Domestic Violence Act, 2005 was passed in which it considered marital rape as local violence. According to this act, a woman can file a petition before the Hon’ble Court and plea for separation from her husband for marital rape. The marital rape is the same as rape only the difference is that in marital rape a woman is raped by her spouse, and in rape, the woman is raped by any outsider person. The Domestic Violence Act has also disappointed in regard to women right as they provide civil remedies where there is already criminal remedies available to a person. 

It condones sexual abuse in a domestic relationship of marriage or a live-in, only if it is life-threatening or grievously hurtful. It is not about the freedom of a woman’s wants. It is all about the fundamental design of the marital institution that despite being married, she retains an individual status, where she doesn’t need to concede to every physical overture though it is only by her husband. Honour and dignity remain with an individual, irrespective of marital status. 

In the case of State of Maharashtra vs. Madhukar Narayan, the Supreme Court held that every woman is entitled to her sexual privacy and it is not open for any and every person to violate her privacy as and whenever he wished. When the Indian Constitution and Laws speaks about the right to privacy available to every person whether male or female and when it comes to rape such heinous and serious punishments are available against accused, then why in the case of this marital relationships man are always protected under the excuse of marriage. Women and Men are both equal in this society and they both have their choices in every aspect but when it comes for intercourse after marriage why the male has to be dominant, and no consent is required from the woman and asked whether she wants to have it or not. Our Indian culture has always taught us that man are superior and women are under their man but now the definition is changing and has to be changed to a greater extent to stop this offence from continuing under the shield of marriage or proper law and remedies should be availed to the victims.

Marital rape is not completely criminalized in India. It is certainly a genuine type of wrongdoing against ladies and really needs government consideration on this. Women who are raped by their spouses are more harmful and endures more physical and mental torture regularly. Marital rape is more horrendous for a lady since she has to remain with her aggressor ordinary. As a result of marital rape is truly high, there is obviously a dire requirement for the criminalization of the offence of marital rape. Positive legitimate change for ladies, by and large, is going on India, additionally, further steps are being taken so that both lawful and social changes happen on large scale, which would finish in criminalizing marital rape and changing the attitude about ladies in marriage. There needs an amendment in Domestic Violence Act, as the act does not directly speak about the marital rape and its punishment which makes both women and law weak and does not help the society to get proper justice against such heinous criminal undeclared offence. The government should either make proper amendments in the acts or new law should be made against this offence.

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Utkarsh Bafna

Student, Jai Narayan Vyas University, Jodhpur

Utkarsh is criminal law enthusiast and adroit writer. You will find a confident character in him and he is not afraid to accept new challenges and make the most out of it. He is preparing for judicial services and his dream is to become honest Magistrate to serve justice. For any suggestion, clarification and query you can reach him at bafnautkarsh@gmail.com

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