The recent verdict by Justice N K Chandravanshi in the Chattisgarh High court in
the case of marital rape wherein he ruled that:
Sexual intercourse or any sexual
act by a husband with his wife cannot be rape even if it was by force or against
and this has sparked controversy, however, multiple marital rape cases
have been reported over the years but the features of section 375 have
restricted the criminalization of marital rape and have discriminated women.
what is section 375? Section 375 of the Indian Penal Code defines rape as a
criminal offence. Sexual intercourse with a woman against her will or consent is
considered to be rape. (The legal age of valid consent is 18 in India.) Under
section 375(2) which exempts unwilling sexual intercourse with a wife over
fifteen years of age from this definition of rape, making it legal for women(
their wives) over 15 years to be raped by men
Indian Perspective on Marital rape
Marriage is considered to be a highly pure human tie formed by two people's
mutual love and respect for each other and India follows the tradition of
arranged marriage in India and most cases the girl is married off to a boy who
is well off and educated but it so happens that some couples have difficulty in
understanding each other and makes it difficult for them to adjust with each
other and in some scenarios it may worsen and lead to an abusive relationship
where the wife is abused mentally, physically and is almost trapped with no way
out. This has been happening for more than a century and one such case is the
case of Phulmoni Dasi.
She was subjected to excessive bleeding due to
intercourse by a man in his mid-thirties (she was 8 years). Lawfully the husband
should've been convicted for rape however he was not convicted for the same but
for causing grievous hurt and only faced a year of imprisonment. This was part
of the British colonial law era and over the years more than 100 countries have
criminalized marital rape however India remains among the 36 which is yet to
decriminalize it even after all the criticism and protests.
Types of Marital Rape
Obsessive rape: These acts are physically violent and in most cases lead
to injuries it is labelled as the most 'sadistic'. In some cases, people with
OCD (Obsessive-compulsive disorder) may indulge and experience different forms
of sexual obsessions too, such as incest bestiality or underage sex and in these
cases, they may require help from professionals.
Force only rape: Women are coerced into sexual activities by their wives
usually occurs after the wives deny sexual intercourse.
Battering rape: Almost 50% of the cases reported are under this, beatings
and rape are combined and in some cases, the physical abuse and violence
continue during the sex, and the sexual act is also violent.
Providing legal aid to those who cannot afford legal services and allowing
victims to talk to each other, express themselves and allow them to be in a safe
space by making them part of a support group can help support the victim.
How The Indian Legal system contradicts marital rape and laws:
Article 14- states that everyone must be treated equally and no person shall be
discriminated against on the grounds of sex, religion, caste or creed. But in
this, it is quite evident that men are given the upper hand and we can see a
similarity in the adultery law (section 497) which was struck down, one of the
main reasons being women are treated as chattels and this deprives women of
Article 15: Right to sexual privacy
. Every woman is entitled to her sexual
privacy and it cannot be violated. The case of State of Maharashtra v. Madhukar
Narayan highlighted the case of women's privacy and ruled that it's not open to
every and any person
PIL (public interest litigation) filed by independent thought was a landmark move
as it challenged the validity of Exception 2 of Section 375. The exemption, it
was contended, discriminated between married and unmarried female children, as
the latter would be deemed rape while the former would not. It stems from a
misunderstanding of two distinct concepts:
Consent to Marriage
and Consent to
. They cannot be used as synonyms or interchangeably. An
adult woman, if nothing else, has a greater understanding of the act of sexual
assault. As a result, it is equally vital to safeguard married women over the
age of 18 against rape.
In 2015 The Minister of State for Home, Haribhai Parathibhai Chaudhary, stated
the marital rape could not be criminalized and further added that there is no
proposal to make it a criminal offence and went on to say that marriage is
sacred and marital offence cannot be made into a criminal offence. The then DMK
M.P Kanimozhi even recommended an amendment to remove Marital rape from
the IPC( Indian penal code) and a proposal to decriminalize it under the UN
Committee on Elimination of Discrimination against women was later rejected.
Reasons And Arguments Put Forth By The Government
It's against Indian culture and traditionsChief justice of India Dipak Misra stated that it should be made a crime because
it will create a sort of anarchy in our families the grounds on which this
argument is made is due to the socio-economic differences between the west and
India. The government claims that, unlike in America, because the majority of
Indians are illiterate, uneducated, impoverished, conservative, and religious,
they think that a husband cannot rape his wife because a decent Indian lady will
always consent to her husband.
The government claims that this is the only
roadblock to criminalising marital rape in India and that by admitting this, it
recognises that lakhs of men violate their wives' sexual permission daily based
on this attitude and that what they're doing is, in fact, rape. The government
argues that criminalizing it would allow women to seek protection against their
husbands and could also lead to these marriages falling apart. In contradiction
to this if it were to be criminalized it would give women an opportunity to
stand against their husbands and put an end to this sexual abuse.
Marriage requires a woman's perpetual consentThe notion or idea that once a woman is married she consents to never-ending
sexual consent is deeply embedded in our society with almost 1 in every 5 women
subjected to abuse of some form if people were to be convicted for marital rape
it would've shown us what the reality is, and it seems to things haven't changed
since the 1700s in which Matthew Dale of England declared that:
The husband cannot be guilty of rape perpetrated by himself upon his
legitimate wife, for by their joint marriage consent and compact the wife
hath given herself over in this manner unto her husband which she cannot
Despite an obvious
contradiction in a 2018 Gujarat high court judgement that states:
It has long
been time to discard the idea of 'implied consent' in marriage.
The law must protect all women's physical autonomy, regardless of their
Laws against marital rape may be misused against menThe government's reply to an affidavit submitted to the Delhi High court was
that criminalizing marital rape would make it a tool to harass husbands. The
same argument was made when Section 498A was enacted to protect women from being
subjected to abuse and cruelty by the husband or his family, it was argued that
women would falsely accuse husbands and misuse it, the fact that a large number
of women are subjected to domestic violence was overlooked and in a case where
the law has been misused the judiciary is there to look at the facts and
evidence on the case and dismiss it if it turns out to be false.
If this were
the case women from a poor socio-economic background and disadvantaged women
will be ignored on the basis that it is faulty, moreover they would not be able
to get legal help and justice wouldn't be served to them.
Marital rape is a reality in our society, and many people suffer in silence
since there are no legal protections and a severe lack of assistance for this
To assist victims in obtaining justice, Section 375 should be amended to remove
the exemption and thereby outlaw marital rape. In the name of marriage and
marital responsibilities, these women's basic human rights are infringed. The
belief and concept that a woman is the husband's property are fatal to women's
standing in India.
Due to a lack of legal provisions, they are unable to take
any action and are compelled to suffer in silence. We need to spread more
awareness about this issue and educate people. One of the major goals of marital
laws is to sustain marriages and public trust in the institution, however, this
goal cannot be achieved at the expense of women's fundamental and human rights.
Women have the right to physical integrity. As a result, denying justice. The
law's entire inability to safeguard the sanctity of weddings is a total failure
of the law to protect its sanctity. citizens. The law should neither encourage
nor support forced cohabitation or rape by the husband. The consequences of
criminalising marital rape in India, on the other hand, cannot be overlooked.
Marital Rape versus Conjugal Right
Does Section 375 of IPC Include Marital Rape
Marital Rape: Is marriage equal to Consent?
Make Marital Rape An Offence: Delhi Court
Marital Rape And Its Current Legal Status
Marital Rape Situational Analysis
Why Marital Rape Must Be Criminalised
Marital Rape - A Justified Crime In India
Rape an Offence, Marital Rape an Exception: Marital Rape in India and Right