File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Marital Rape: Violation Of Married Women's Right

In India, the concept of marriage is viewed as one of the unions of two souls, and according to them, both partners have implied consent to have sexual intercourse whenever they wish after the celebration of marriage. It is, regardless of one's desires and will. According to the concept of marriage in India, which was done as a shield to cover up the ugly truth of marriage, some of the crimes committed in marriage are heinous crimes such as domestic violence, spousal rape, cruelty, or marriage.

It is a crime committed against a woman inside. The concept of rape and the legal history of the crime of rape in a civilized society or culture is a review and definition of what constitutes rape, spousal rape or spousal rape, and the act of having sexual intercourse with a woman without consent. is. Lack of consent is the primary definition of various factors and need not include physical evidence in the storyline. About 10-14% of married women in the United States have been raped by their husbands. About a third of women report having "unwanted sex" with their partners.

Historically, many rape laws stated that rape compelled a man to have sex with a woman rather than his wife, giving the husband the right to rape. As of July 5, 1993, spousal rape was the norm in all her 50 states, with at least one of her gender codes. Twenty states, the District of Columbia, and local territories have no immunity from prosecution for a husband's rape. However, 30 states still allow husband rape as an exception.

In most of these 30 states, there is no need to use force because the wife is in danger (mentally or physically disabled, unconscious, sleeping, etc.) and cannot confess. In that case, the man will be fired. Women who are raped by their husbands are more likely to be raped, often more than 20 times. They are not only raped vaginally but also raped with oral and anal sex. Researchers generally classify marital rape into three categories: Forced rape, assault, and attacks.

The term marital rape means that a man has sexual intercourse with his wife without her consent and will, and that consent and will is obtained through all forms of violence, intimidation, undue influence, and psychological torture. If so, it happens to be spousal rape, which we call spousal rape. Marriage, as we know it, is the pure union of two souls. In India, mutual weddings are held to facilitate sexual intercourse, making it a major source of criminalized heinous acts.

Current Marital Rape Debate

As an advocate, put it before the high court five min before the marriage, it was a rape, and five min after the marriage it is not a rape. Therefore, this kind of differentiation is something the court will have to consider to determine whether it is arbitrary or permitted by the Constitution. The Delhi High Court is also debating a challenge to the constitutionality of the Indian Penal Code's immunity for marital rape.

As this is essentially an exception to section 375 of the IPC's definition of rape, which specifies the conditions under which a non-consensual sexual encounter qualifies as rape, numerous media outlets have also expressed their explanations of the situation. The rule does have a crucial exception, which states that non-consensual sexual activity between a married man and his wife who is older than 18 would not count as rape. Therefore, the primary IPC clause that is being contested before the Delhi High Court is this one.

According to a clause, several common law nations that got their start with the English legal system have marital rape immunity. Therefore, whether the IPC was passed, the colonial legislation is now being challenged. Since this is the first time it has been contested in court, it has persisted in our records all these years. Therefore, the challenge is even being made possible because we have witnessed a few Supreme Court of India judgments in recent years that have been short if titled the balance in favor of women.

The House of Lords in the United Kingdom knocked down the exception for marital rape in 1991. In contrast, Canada introduced a law in 1983. If we look at South Africa, they introduced one in 1993. Australia introduced one in 1981. Additionally, the identical clause has been changed in all these nations.

So, in India, this has been the first time when the concept of marital rape immunity is being challenged in court. The main issue that arises is whether the court can maintain this immunity indefinitely given the numerous arguments that were presented to it. There are other valid grounds for maintaining this immunity.

What is the future of the marriage as an institution if a wife can sue her husband for rape? These are some of the questions that are being addressed in the hearing before the high court. Of course, removing the immunity to marital rape will destroy the institution of the family as we currently know it.

Therefore, the complainant argued at this hearing that this classification of marriage as a criterion is arbitrary and violates the right to equality referred to in Article 14 of the Indian Constitution itself. One of the most important concepts here is that when a wife marries, she gives her permanent and irrevocable consent.

Thus, this concept is based on the idea that when a woman marries, she is obliged to fulfill certain obligations: to give birth, and to fulfill her husband's wishes. It assumes that a wife has no right to say no to her husband. So, it is possible that there was a concept prevalent in society when the IPC was shortened to 2021. They seem to be very outdated concepts and the question is whether the law should allow it or should the law allow it.

The government's role in this context is because, from the government's perspective, the Delhi government and the central government have defended the law and wish to continue immunity from spousal rape. As for the central government, we believe the criminal review process is ongoing with a commission set up by the Ministry of Interior.

So while the central government thinks that marital rape should be more publicized as a sensitive issue and should be discussed more before the courts decide any way, when we look at the Delhi government, her main argument is that if the court downgrades the issue to the rape immunity clause, there will be new crimes. The Delhi High Court should not lift immunity for her spousal rape because courts cannot create new crimes, which is what the Delhi government argues.

As this clause has been the subject of much debate, the Supreme Court has also appointed her two barristers, neutral parties, to adjudicate the court in a case of this magnitude., states can say that protecting the family institution is one of the reasons why the marriage immunity should be maintained and that protecting the institutional family is the reason women's rights continue to be violated.

So, this is something that the court will have to necessarily investigate, and this is important because this is the test that the court will apply to this situation to balance these rights. Therefore, if the state has a legitimate interest in a certain issue, such as national security, public order, or public health, and it wishes to implement legislation that might infringe on those who hold an individual's fundamental rights. Therefore, the court must determine whether the state has a compelling reason to uphold an individual's right or to permit an infringement on that right. In this case, the court must determine whether safeguarding the institution of marriage may be considered a compelling reason for the state.

Data On Sexual Offenses Executed Against Married Women

Domestic abuse cases have occurred, as they have in India and other nations, and they rise during times of lockdown. Although domestic violence is a pervasive issue, it is exceedingly difficult to quantify and collect any data about it unless it is registered. According to numerous studies that used data from accessible statistics around the world, 33% of women-or possibly more-have suffered violence at some point in their lives.

Numerous domestic violence cases involve the idea of marital rape, which effectively refers to when a husband coerces his wife into having sex with him-or, more accurately, against her will-without her consent. Between the years of COVID-19 and more than 3582 instances of domestic violence were documented. Most domestic violence cases are reported based on mental or physical abuse, dowry, engaging in sexual activity without the wife's knowledge or consent (sexual abuse), matrimonial abuse in violation of Section 498A of the IPC, and adultery.

The Domestic Violence Act of 2005 addresses sexual assault as a subset of domestic violence. According to the Act, this is also referred to as family violence, domestic violence, or violence against a legally married couple. In the event of marital rape, only sexual violence-not rape-will be taken into consideration, and the spouse will be able to carry out a marital rape once more. Due to the domestic violence act's restriction to solely domestic violence, the crime of marital rape will not be recognized as rape or as an offense, which is why we need different laws.

Comparative Analysis Of Various Nations

The concept of marital rape in the United States was that any non-consensual sex between non-spouses has been perceived as an illegal act, but in 1975 the martial exception that allowed a man to rape his wife without her consent and without any fear of legal consequences was established. As a result, we will also compare marital rape in the United States and India. In 1993, every state in the U.N. established legislation against marital rape, partly as a result of the women's rights and equality movement.

According to the United Nations and its states, rape is considered rape whenever it is committed against a woman's will, whether by her husband or another man. All states also state that spousal rape is a crime, and many prosecute offenders as well as rape of unmarried women. We have a slightly different view that Southern California may not attempt to recharge a spouse's battery unless the spouse's behaviour is reported to law enforcement within 30 days of the incident. Some spousal rape cases offer martial arts or personal counselling rather than court hearings.

The women's movement in the United Nations, led by feminists, pushed for changes to the legal system in 1970. Laura X was a very powerful woman who consistently participated as an advisor in the case of John Rideout in 1978, which was the first instance in which a man was brought before a court of the United Nations to be tried for raping his then-wife. As even John Rideout's case failed to make martial rape illegal, Laura X was able to successfully lead a campaign in Oregon to make it a crime that will result in martial rape becoming banned the following year, in 1999.

The commonwealth vs. James K. Chretien was the case that, on December 2, 1979, led to the first-ever martial rape conviction in the United States. In 2003, 26 states still maintain some sort of marital rape immunity while 24 states and the District of Columbia eliminated it for sexual offences.

Similar laws existed in Tennessee until 2005, when they were abolished. In South Carolina, husbands must use violence against their wives at a higher degree. According to the law, if a husband has seriously injured his wife while they are cohabitating, he may be convicted of raping either his wife or spouse. The ban was finally overturned in 2005, allowing for the treatment of marital rape as a different kind of rape.

In India:

India is a patriarchal and male-dominated country. Email plays the most important role in family and work events. They viewed men as a superior male-dominated country. In India, tacit consent during marriage is considered. Based on mutual contract material or mutual agreement during marriage. It expects an exception for spousal or spousal rape.

It can be traced from the ancient Sanskrit text of Manu Smriti, which expected women's consent. The structure of marriage is the permission of sexual intercourse between spouses. I would not talk about female approval. And if the wife denies this status with her husband and there was no concept of consent and consent to marital rape while mobile phones were legal and endangered the situation of women in society., think that the wife is not ideal.

Women like slaves and sex slaves, and they were gifted in Book 3. Their own wives were openly sold in exchange for wealth and kingdom. Post-independence, patriarchal ideas and notions of privacy persist, especially in matters of marriage.

Since we will assume that the wife always gives her agreement while having any type of sexual contact, it is assumed that the situation did not improve when the husband and wife cohabited. However, the only justification for judicial separation is that a husband cannot be penalised for raping his own wife. Or, to put it another way, they refuse to pass any legislation on the subject.

Marital rape is not criminalised and has not even been thought of as a crime or an illegal behaviour in India up until now. According to the current legal provision, which is included in IPC section 375 clause 2, a man's sexual activity with his own wife-if she's beyond the age of 15-is not regarded as rape. It is the only time a married lady has been granted an exception.

Judicial decision
In the landmark order the Karnataka high court has allowed the framing of charge against a husband in a case of marital rape, and marital rape is not yet remembered criminal offence.

Judicial Decision Or Judicial Stand On Marital Rape:

In India, despite a year-long campaign against the institution of marriage, today the Karnataka High Court ruled that the institution of marriage grants special male dominance, special privileges, and licensees to unleash a brutal beast. They further clarified that "the brutal act of sexually assaulting a wife against her husband's consent can only be described as rape."

The Karnataka High Court, after investigating the facts of the case, filed a FIR against the husband alleging rape, and filed charges against the Karnataka police, suggesting that the wife had filed a complaint with the police. Based on this, she pleaded guilty to rape against her husband. However, her husband applied to the Karnataka High Court to seek indictment under Section 376. Based on Section 376 of the IPC. The Supreme Court made that statement while allowing this husband to be tried under the rape law.

Karnataka high court also says that "woman and man being equal cannot be made unequal by exception under rape law. It is for law makers to ponder over existence such inequalities in law"

Therefore, the high court made it very clear that the husband in this case cannot seek exemption and protection under section 375 IPC, whereas he must be tried for rape. This is a very significant judgement from the Karnataka high court, and they also state that we are not going to discuss the exemption granted to the husband generally because that is something that the legislatures should consider, but based on this fact of the case, we are allowing the trial court to proceed.
  1. Independent Thought Vs Union Of India

    In this case the SC's, two-judge read Exception 2 to Section 375 as it relates to girls under the age of 18. The case took an important step to protect a girl by making it a crime to have sex with a wife under the age of 18, but the Supreme Court did not address cases where the interests of the other party were violated. There were no special provisions for doing so. Children were also present in the game. In this case, the Supreme Court Local Bank had a unanimous opinion on the matter when it ruled in favour of the petitioners. It read Exception 2 of Section 375 of the IPC and said that the whole judgment should be ignored on the issue of marital rape.

    As per the current hearing going on in our Delhi high court:
    In view of this, Rao contended that the state must show compelling state purpose for providing Exception 2 to Section 375. Rao added that, in his opinion, there exists none.

    Rao significantly cited the Supreme Court's ruling in Independent Though Vs. Union Of India in his arguments. In this case, the Supreme Court's two-judge panel read down Section 375's Exception 2 insofar as it relates to a girl child under the age of 18.

    Since the general issue of marital rape was not before the Court, Rao argued that the Independent Thought case does analyse Section 375, albeit in the context of a girl child under the age of 18.

    Rao argued that the consequence of the exception is that the permission becomes useless for the purposes of the act of rape rather than the statute's explicit statement that the consent is meaningless.

    He read out the passage from the Independent Thought that dealt with the effect of the Exception as follows-

    "As a result of the above three circumstances, the husband of a girl between the ages of 15 and 18 has full freedom to engage in non-consensual sexual intercourse with his wife, and non-consensual intercourse is criminalized for rape under the IPC. No liability, sex is not rape," in the sense of Article 375 of the IPC. Curiously, as Sakshi pointed out before the International Association, under the IPC, a girl's husband does not "sexually abuse" his wife, such as when the girl's child's husband assaults her.

    'Do not have the freedom and the liberty to do acts that are not. Any intention to undermine her humility may be punished under the provisions of Article 354 of the IPC. In other words, the IPC allows a man to have non-consensual sex with her wife if she is between the ages of 15 and 18, but does not sexually abuse her. Adding is not allowed. This view is surprisingly supported by the LCI in the 172nd report mentioned above.

    "The Domestic Violence Act will also apply in such cases and the husband does not get immunity. There are many other offences where the husband is either specifically liable or may be one of the accused. The husband is not given the immunity in any other penal provision except in Exception 2 to Section 375 IPC.

    It does not stand to reason that only for the offence of rape the husband should be granted such an immunity especially where the "victim wife" is aged below 18 years i.e., below the legal age of marriage and is also not legally capable of giving consent to have sexual intercourse. Exception 2 to Section 375 IPC is, therefore, discriminatory, and violative of Article 14 of the Constitution of India, on this count also".

    Rao thus contended that though the Independent Thought judgment clarified that it did not deal with the issue of marital rape in general, its observations in the said decision hold the field and that they are his arguments to criminalize the marital rape.
  2. State Of Maharastra v/s Madhukar Narayan Mandikar, 1990, Sc 207

    In this case, the Supreme Court ruled that because Banubi is an unfaithful woman, it would be unacceptable to allow the property and career of a government official to be jeopardized by an uncorroborated version of such a woman who does not keep her fornication a secret. I decided that it was very dangerous. intimacy with others. Therefore, the defendant was acquitted.

    The Supreme Court has held that even a woman of easy virtue is entitled to privacy, and no one can invade her privacy whenever she pleases. It is not like you can hurt people. She has the right to protect her person when an attempt is made against her will to harm her. She is entitled to legal protection as well. The court reversed the High Court order and reinstated the Court of Appeals order removing the defendant from office.
  3. Sree Kumar v/s Pearly Karun, 1998

    In this case, it was proved that if the wife did not live separately from her husband and had sexual intercourse ignoring the husband's will, or that such act did not constitute rape. Therefore, in this case, it was said that her husband was never guilty of raping his own wife. Kerala High Court ruled under IPC Section 376A that a spouse does not live independently of her husband according to a declaration of division or custom or use, irrespective of the likelihood that the spouse is responsible for better sex. Decided that the offense does not apply. Half unwilling and without her consent.

    Following the Penal Code amendments filed after the NIRBHYA case, one of Delhi's most brutal crimes, an amendment was submitted to make the punishment for rape more severe, but the general parameters and the nature of the crime did not change. Wartime crimes and IPC-mandated marital rape remained, and there were no laws against them.
  4. Bodhishta Gautum v/s Subhra Chakraborty

    In this case, the court held that the term rape was not a right to life or some ordinary human rights issue, but a crime against fundamental human rights and a violation of the right to life as provided for in section 21 of the Rape Act. ruling. Act Indian Constitution of India and specific guidelines for giving compensation to rape victims.
  5. The Chairman, Railway Board Vs Chandrima Das

    In this case, the court ruled that the term rape was a violation of a woman's fundamental rights rather than the normal rights we all have. Rape is therefore not only a crime against the individual woman, but a crime against society. It has always intercepted the rights of victims and their cherished rights: the right to life, the right to human dignity contained in article 21.

According to relevant legislation, there is no data on reported spousal rape cases in the absence of legislation. Such reforms are far from reality in a country like India, where neither the country's parliament nor the Indian judicial system are willing to close the gap between spousal rape and rape. According to Indian law and the outlook for Indian society, we have a male-dominated society and the decriminalization of spousal rape shows the same.

According to the Verma Judiciary Commission, the issue was first addressed in the 42nd Judiciary Commission report, which said that the exception to the clause for legally separated husbands and wives should not apply. Two things were suggested. Non consensual sex, or sexual intercourse between a husband and wife between her 12 and her 15 years, should not be considered rape, rather the same section is enacted.

The role of consent and will on the prospects of married women is not yet clearly defined, but for the sake of correct definition consent and will are interpreted as the same thing, and court judgments or decisions in this regard are somewhat ambiguous. Alternatively, we can say that the victim is being given some form of improper justice by the courts and judicial authorities. Section 375 of the IPC requires a formal definition of a will under this Section 375 or an amendment to provide a proper definition. This is because it is one of the most controversial sections of women's married lives due to the increasing number of cases each day.

Like in a country like India, neither the people who make the laws and regulations of the country nor the judicial system of the country are prepared to deal with the reality that the wide gulf between spousal rape and rape is unprepared there are reforms that can endanger the victim's life.

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers

Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


How To File For Mutual Divorce In Delhi


How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Increased Age For Girls Marriage


It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...

Facade of Social Media


One may very easily get absorbed in the lives of others as one scrolls through a Facebook news ...

Section 482 CrPc - Quashing Of FIR: Guid...


The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of t...

The Uniform Civil Code (UCC) in India: A...


The Uniform Civil Code (UCC) is a concept that proposes the unification of personal laws across...

Role Of Artificial Intelligence In Legal...


Artificial intelligence (AI) is revolutionizing various sectors of the economy, and the legal i...

Lawyers Registration
Lawyers Membership - Get Clients Online

File caveat In Supreme Court Instantly