The other day, I watched an internet video about how ignorant Indians are about
MARITAL RAPE, which prompted me to write this article. The video in question was
a survey conducted by a popular YouTube channel in a park in Delhi, where
participants were asked about their opinion on marital rape. Unsurprisingly,
everyone had the same opinion, which was 'marital rape is a myth'. The shocking
part about most of them is that, by their way of speaking, it appears they're
well educated. This article will shed light on the idea of marital rape and how
far Indians are behind the times when it comes to such oppressive topics.
What is marital rape?
Marital rape is when a non consensual sexual intercourse occurs between husband
and wife. This can happen either way, but the most commonly reported ones are
atrocities against women. Simply put, marital rape is when somebody rapes their
own spouse. India is one among the 32 countries around the world, where marital
rape is still legal. The world has evolved tremendously along the years in terms
of recognizing the importance of equality among genders as well as empowerment
for the betterment of a society. The fact that a country like India is deficient
in understanding the need for penalizing marital rape is extremely
Surveys have put forward that, in approximately every 16 minutes,
a girl/woman gets raped in India. Statistics have shown that, in 2020, an
average of 77 rape cases have been reported with a conviction rate of 30%.
Indians are prone to avoid confronting trauma due to fear of being judged
insensitively by society and also due to the lack of awareness about the laws in
this country, and therefore hundreds of cases of such violence go unreported as
well. In light of this graph, it is plausible to guess how many marital rapes or
legal rapes happen within the closed walls of a household every day and it is
alarming. The necessity of legislature's attention in this matter is imperative.
Marital rape and infringement of Fundamental Rights
Indian constitution has always been an advocate of equality, which is mentioned
within Article 14 of the constitution. It guarantees equality to every citizen
before law. Sadly, it is kept mum about the discrimination done against married
and unmarried women in terms of rape. Section 375 of the Indian Penal Code1
criminalizes rape. Unfortunately, the exception to section 375 creates a
discrimination based on the marital status of females, prioritizing unmarried
over married females, as it clearly states sexual intercourse of a man with his
own wife does not qualify to be addressed as a rape.
This has no rational nexus
and is a clear contradiction of the fundamental rights guaranteed by the
constitution. Whole time, the interpretation of article 21 has been at constant
challenge, exploring more meanings for it. With the help of these cases, the
honorable Supreme Court has made it clear that Article 21 not only does apply as
to the literal interpretation of life and personal liberty, but also gives the
right to live a life with privacy, dignity, health, safe environment, safe
living conditions and more.
Evidently, all the above mentioned rights are
straight away infringed while neglecting the victims of marital rape. In
the landmark judgment in Justice K.S. Puttuswamy (Retd.) vs. Union of India
the honorable SC recognized right to privacy as a fundamental right, as well as
held that 'the right to privacy includes decisional privacy reflected by an
ability to make intimate decisions primarily consisting of one's sexual or
procreative nature and decision in respect of intimate relations'.
privacy, as a fundamental right was recognized in the case of State of
Maharashtra v. Madhukar Narayan
3 as well. Furthermore, in Suchita Srivastava vs.
Chandigarh Administration4, the honorable Supreme Court said that Reproductive
rights are a facet of a woman's personal liberty under Article 21, and her
rights to privacy, dignity, and bodily integrity should be protected as a
Similarly, in the case of State of Karnataka vs Krishnappa
5, the Supreme
Court ruled that sexual assault violates a woman's right to privacy and
sanctity. None of the judgments create a distinction between married and
unmarried women, in association with their rights, neither are there any
precedent that says a marital relationship tramples on an individual's right to
privacy. Hence it is perceptible that a married woman has the right to either
consent or say no in terms of sexual relation and forced copulation is a
violation of her rights.
Currently available remedies
The Domestic Violence Act 20056 describes cruelty in various forms such as
Physical, emotional and financial; sexual violence is also included. Through
this act, an aggrieved person can apply for protection, restraining orders
against the accused and maintenance. Nonetheless, the Domestic Violence Act 2005
is civil in nature and thus provides remedies like monetary resolution or a
protective order, except in cases where there is a breach of order passed by
court (section 31 and 33).
Besides, section 498A of IPC7 deals with cruelty and
provides punishment for the same. These are the provisions resorted to, if at
all marital rape is acknowledged by the court. Though this is not sufficient as
it does not explicitly talk about marital rape and the fact that there lies an
uncertainty on whether this remedy will even be granted is very disturbing.
There have been instances where the court has refused to recognize the
occurrence of anything wrong in the matter of marital rape cases.
judgment made by the Chhattisgarh High Court judge NK Chandravanshi, stating
that sexual intercourse or any sexual act with her by her husband would not
amount to rape, even if it was against her wish, or the recent ruling done by
Mumbai Additional Sessions judge Sanjashree J Gharat, where he stated that
sexual intercourse with a wife against her wish does not stand legal scrutiny.
These judgments do not fail to highlight the necessity of penalizing marital
rape in India.
It is a long way to go until women will be safe in a country like India, where
patriarchy rules and where the social norms have normalized violence against
women. This makes it hard for women to report the violence they experience.
Historically, Indian courts have differed in their views concerning rape in
marriage. While the courts were reluctant to recognize marital rape in the prior
mentioned cases, the Kerala High Court ruled in a recent judgment that, having
married does not mean a man owns the woman's body and forcing her into sexual
act is nothing but marital rape.
One of the main arguments by the opposition
that the foundation of India and its culture is marriage, family and family
values and it will be disturbed once such a law is made, is meritless. As laws
of domestic violence, judicial separation, and divorce have not disrupted the
foundation of marriage, marital rape would not, either. In fact, a recent
judgment by Gujarat High court said that marital rape is what has weakened the
institution of marriage since it is a non-consensual conduct that breaks faith
and credibility inside a marriage.
Another major argument is about women
misusing such a law, if made. I would like to remind you that similar arguments
were made again and again when various laws were enacted, such as Domestic
Violence Act, Dowry Prohibition Acts, Section 498A etc. If there is any misuse
of such a law, then there is judiciary to provide justice.
The Gujarat High
court in a 2017 judgment emphasized that the criminal justice system has
safeguards to detect and investigate fabricated or fraudulent marital
complaints, and anybody who makes unsubstantiated accusations may be held
accountable under the law. In addition, we should not turn blind eye towards the
emotional trauma a woman faces on such an occurrence.
In a country where not
every woman is fortunate enough to be educated or have financial independency,
she will not be able to either fight her own case or move out of that toxic
relationship. It is high time we amend the section 375 of IPC, which dates back
to the Victorian era and make proper provisions for protection of women.
bridge the existing gap in the legislation, for the betterment of society.
- Section 375 in the Indian Penal Code. (n.d.). Retrieved November 21, 2021,
- Justice K.S.Puttaswamy(Retd) vs Union of India on 26 ... (n.d.). Retrieved
November 21, 2021, from https://indiankanoon.org/doc/127517806/.
- State of Maharashtra and another vs Madhukar Narayan ... (n.d.). Retrieved
November 21, 2021, from https://indiankanoon.org/doc/524900/.
- Suchita Srivastava & Anr vs Chandigarh Administration on ... (n.d.). Retrieved
November 21, 2021, from https://indiankanoon.org/doc/1500783/.
- State of Karnataka vs Krishnappa on 23 November, 1993. (n.d.). Retrieved
November 21, 2021, from https://indiankanoon.org/doc/1122792/.
- The protection of women from Domestic Violence Act, 2005. (n.d.). Retrieved
November 21, 2021, from https://indiankanoon.org/doc/542601/.
- Indian kanoon - search engine for Indian law. (n.d.). Retrieved November 21,
2021, from https://indiankanoon.org/doc/538436/.