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When Rape Is Allowed By Law

Domestic violence in India is an entrenched problem, and it has only become more exacerbated in recent years. According to National Crime Records Bureau's (NRB) 'Crime in India' 2019 report, about 70% of women in India are victims of domestic violence.

One such manifestation of domestic violence is marital rape.

What is Marital Rape?

  • Rape refers to forcing or manipulating another person into sexual intercourse. It is a sexual assault.
  • Marital rape is the act of forcing one's spouse to have sexual intercourse without the spouse's consent.

Status Of Marital Rape In India

It's 2021 and India still doesn't recognize marital rape as a criminal offence.

Section 375 of the Indian Penal Code defines rape as:
Sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or the time she is intoxicated or duped, or is of unsound mental health.

However, Exemption 2 of Section 375 exempts unwilling sexual intercourse with a wife over 18 years of age, thus making it legal for men to rape their wives.

As per current law, a wife is presumed to deliver perpetual consent to have sex with their husband. The concept of marital rape in India is the epitome of we call an "implied consent". Marriage here is the license for a man to rape his wife.

As per the UN Population Fund more than two-thirds of married women in India, aged 15 to 49, have been beaten, or forced to provide sex, regardless of their socio-economic positions.

As per the International Men and Gender Equality Survey 2011, 1 in 5 men has forced his wife to have sex.

The non-criminalization of marital rape in India is a dreadful slur on the dignity and human rights of women.

As many as 150 nations in the world view marital rape as a crime and only 36 countries still refuse to treat marital rape as a crime and India is one of them.

One of the most horrifying and repressive issues with the Indian Legal regime is that marital rape is perfectly legal. Rape is rape, irrespective of the identity of the perpetrator, and the age of the victim. A woman who is raped by a stranger, lives with the haunting memory of the horrible incident, and a woman who is raped by her husband lives with her rapist. It's time that our law makers criminalize the offence of marital rape as that of rape.

Marital Rape is violation of Fundamental Rights: Article14 & Article

Violative of Article 14:
Marital rape violates the right to equality. The exemption creates two classes of women based on their marital status and immunizes actions perpetrated by men against their wives. In doing so, the exemption makes possible the victimization of married women for no reason other than their marital status while protecting unmarried women from those same acts.

Violative of Article 21:

According to the Supreme Court, rights enshrined in Article 21 include the rights to health, privacy, dignity, safe living conditions, and safe environment among others.

In the State of Karnataka v. Krishnappa- the Supreme Court held that sexual violence apart from being dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female and also that non-consensual sexual intercourse amounts to physical and sexual violence.

In the Suchita Srivastava v. Chandigarh Administration:
The Supreme Court equated the right to make choices related to sexual activity with the rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.

In both these judgements the Supreme Court has recognized the right to abstain from sexual activity for all women, irrespective of their marital status, as a fundamental right conferred by Article 21 of the Constitution.

Therefore, forced sexual intercourse is a violation of the fundamental right.

Impact On Women

The effect of sexual assault is not only psychological or emotional but also impacts upon physical, social, interpersonal and financial domains. Research has shown that women who have been raped by their husbands often develop anxiety and post-traumatic stress disorder. Studies show that sexual assault can have severe effects in other domains of a woman's life including how she views her social reputation, and the quality of her family and social relationships, how it impacts her functioning and decision-making as well as their psychological status.

From the above mentioned arguments it is put forward that it is high time marital rape be recognized by law makers as an offence under IPC. The fact that parties ae married should not allow men to take advantage and rape their wives because the gravity of offence is equally grave as that of rape. Like the many nations around the globe India too needs to recognize marital rape as a crime. Marital rape infringes fundamental rights of women and harms their dignity and make their lives miserable them in endless ways. Therefore, it should be made punishable.

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