The woman is a term which has a wider definition in our ancient history and even
in religious perspective as well as their contribution in Indian freedom
struggle or framing a nation and even has the capacity to turn the legislative
framework into judicial activism.
If we talk about the east that we often called a south Asiatic nation, the
pivotal values and dignity that is given to a woman are more or we can say
comparable to god but sometimes judicial interpretation or we can say as
judicial activism may have the capacity to downgrade or upgrade its values. Here
I will talk and analyze the surprising topic that how and when rape can be
called legal and it's all about marital rape.
Marital rape is a concept in which
women mayor have to forcefully act to be a part of sexual intercourse where the
definition of sexual intercourse is maybe put out from biological perspective as
penetration of penis inside a vagina is mandatory and here the will power is one
of the pivotal factor that mainly defines rapes or sexual constant but here the
issue is is it legal or moral that post-marriage is a woman is bonded to
experience marital rape if she has no consent during a moment or a specific time
period and is his partner have the constitutional obligation to force her in the
eyes of the law to bed.
If we analyze the data of marital rape in India its is not clearly mentioned in
theory but in practice, it is empowering itself in the form of kerosene fire or
a protest psychologically.
As per the constitutional provision, it is a violation of articles 21,14,19 and
even some principles of directive principles of state policy where we can
interpret that right to life and it is the duty of the state itself to provide
But here the issue is India is framed on the knots of its traditional
culture of patriarchal and communitarian society which may have both positive
and negative impacts on the nation itself. In fact, one of the other main issues
is that many of the global nations have the provision to legalize marital rape
and we can observe this as a countermeasure policy against feminism or the rise
of might is right in societies and it can be linked with human psychology
behavior in context to men and according to a research ego factor or conflict of
interest play a wider role and even programming from external factors like
following communitarian religious practices and reflecting the psychological
phenomena of reflexive equilibrium in which the past trauma incidents or present
anger clashes reflect to harm anyone can release stress so this is also a factor
Another is reproductive rights and awareness regarding sexual consent and legal
perspective so if we analyze the rural areas and won't be so happy if I am not
taking urban mirror as both of them experienced this type of examples as in most
of the houses reproductive rights are not women rights as they are patriarchal
or even we can call it as dictatorship protocols as orders were given not choice
And according to the national health family survey for 2005-2006,
5.4% of married women have faced marital rape and 4% experienced it in just 12
months. so just have a guess that in spite of marrying through various
religious laws no matter whether it is the Hindu marriage act or Muslim law both
are facing the same issues. Economic dependence and fertility issues are some of
the issues that need to be handled out and for that government of Indian has
initiated many schemes like Beti padhao and Beti Bachao but recently it comes
under audit as corruption and men's ria to reduce awareness was objected.
Indian penal code which handles rape or we can say that IPC was framed in 1880
and during that period marital rape was given a no factor of sin as it was
registered by the administration that women are a part of the husband and she
has overall obligation to fulfill his physical needs.
And on the one hand, we have laws to protect rape under section 375 and it has
basic beautiful eligibility and that is 1[375.
A man is said to commit Rape
who, except in the case
hereinafter excepted, has sexual intercourse with a woman under circumstances
falling under any of the six following descriptions:
- Against her will
- Without her consent.
- With her consent, when her consent has been obtained by putting her or
any person in whom she is interested in fear of death or of hurt.
- With her consent, when the man knows that he is not her husband and that
her consent is given because she believes that he is another man to whom she
is or believes herself to be law�fully married.
- With her consent, when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally
or through another of any stupe�fying or unwholesome substance, she is
unable to understand the nature and consequences of that to which she gives
- With or without her consent, when she is under sixteen years of age.
Explanation.-Penetration is sufficient to constitute the sexual intercourse
necessary to the offense of rape.
Sexual intercourse by a man with his own wife, the wife not being
under fifteen years of age, is not rape.]
So marital rape is also against her will, without her constant, even in this
case if we analyze if forceful sexual intercourse after marriage is also
initiated and as per human biological perspective female will respond to
resistance and in the hypothetical situation fears inherits in the mind and even
it may happen that internal vaginal injuries may happen or even external because
lack of interest doesn't infuse lubrication hormones. So third is also
The issue is the fourth point recognition of the husband and this is the only
root cause of the issue as if we analyze Hindu marriage act in terms of
Sacramento in nature then women have no choice and if we analyze Muslim laws
they also faced the narrower issues in context to vulnerable sections.
Recently there was a case of marital rape and Chhatisgarh High court acquitted a
man on marital rape bu rilling that sexual intercourse between legally married
women is not to be classified as rape no matter it is done by the index of
force.which is framed under section 376(carnal intercourse against the order
of nature) and section 498A(cruelty towards a wife by a husband or his
The honorable court upheld the sections on grounds that it will
dismantle the culture and beautification of marriage on which Indian marriages
are bounded and it may be I interpreted that if we legalize this then the index
reports of futuristic of divorce will be on waves unlike covid or as omicron
variant is spreading its values.
Another concept was given that marriage is a sexual relationship and if its
stands for sexual relationship for a long binding perspective then how living
relationship sexual obligation is found to be unconstitutional if proven in the
eyes of law.
There are other rules and provisions that may bring a husband in the case of
molestation, sexual harassment, voyeurism, etc but punishing on the marital rape
would be quite difficult. In Joseph Shine v. Union of India
Supreme Court held that the offense of adultery was unconstitutional because it
was founded on the principle that a woman is her husband's property after
The marital rape exception betrays a similar patriarchal belief: that upon
marriage, a wife's right to personal and sexual autonomy, bodily integrity, and
human dignity are surrendered.
And one of the important judgments is the supreme court in the state of
Maharastra v/s Madhkar Narayan
, it held that every woman is entitled privacy and
it is not open for any and every person to violate and here every person
definition should be clearly mentioned but it doesn't mention that it will pay
its obligation to husband or not.
Even marital rape violates article 14 of the
Indian constitution and there is a difference between married and unmarried rape
victims .so there is a judicial mismatch or conflict that may be overlapping in
nature but doesn't have a uniform ground for every territorial jurisdiction. On
the one hand, we are increasing marriage rights and on the other rapes are been
legalized on the bed on the ground of marriage.
Kerala high court had noted treating a wife's body as something owing to her
husband and committing sexual acts against her will is nothing but marital
rape. It is a violation of article 17 and individual autonomy.
Delhi high court observed that both partners have the right to say no and even
the justice Verma committee recommended for the criminalization of marital rape.
but still, we have the religious and cultural defense and social governance that
need to be evaluated.
So let think about this as we can also observe that domestic violence had also
been increased as per national human rights we need to frame scientific temper
and also expand judicial scholars, activism so misuse should be framed either on
the court or in the bed.
Every year, 25 of November is observed as the international day for the
elimination of violence against women and this year the theme is generation
equality stands against rape
despite the safety and security of women have
accorded utmost priority by the government in India and several steps taken over
the years to tackle the issue, violence against women continues being an
obstacle in achieving equality, development, peace, and fulfillment of women.
The other side effects that women face in this case is that they sometimes go
through mental health down gradation and symptoms like PTSD, depression and
obsession infuses their mind which violates article 21 of the Indian
constitution and article 21 if we may interpret as the golden backbone of India
constitutionalism structure then the judgment regarding the same shall be
individualistic and balanced in nature. there are numerous issues like if we
frame a legislative law for it it may lead to misuse of the subject itself and
which would lead to an infusion of section-498A and thus to countermeasure this
we again need to interpret the law by the time or according to the demand.
According to the world health organization report, one in every three women and
girls experienced physical and sexual violence in their lifetime, most
frequently by an intimate partner. But the point is how many of them got
recorded as per the crime records bureau (NCRB) report of 2017. 94 percent of
the rapes were registered under cruelty by husband or relatives. However marital
rape is not identified in India.
Let's analyze some IPC sections by which we can
provide a defense to this article is a strong mirror as we all know that under
section 97 every person has a right, subject to the restriction contained in
section 99, to defend and it mentioned two subjections that is to defend his/her
own body against any offense affecting the human body and if there is a mention
of the human body so is female reproductive organs doesn't come under the human
body as it is one of the pivotal and sensitive organs and other section read
under 98 to right to private defense against the act of a person of unsound mind
and if a partner is forcing her partner to have forceful sex then it may have
other biological factor but in case if due to any other mental health issue even
he can initiate the act and we can provide him to be accused.
And maybe there
are some exceptions unlike which is done or initiated in a good faith so does
that faith need to be controlled by the judiciary if it aims to violate human
rights on a ground of choice as to if yes then it will violate article 17 and
again article 21 of the Indian constitution. And let's deal with section 319
whoever causes bodily pain, disease, or infirmity to any person is said to cause
In this case, if the intention is to provide hurt is known then it comes under
this act as forcefully constant is similar to clear intention or men's ria then
also it comes under the offense.
One of the other issues to reframe a uniform code to reduce this unregistered or
utopic crime is religious interference as there are multiple opinions regarding
marriage under various acts and if the judiciary tries to intervene then it
would act as an institution which would violate section 295A of Indian penal
code if we for a moment project it as a living citizen as 295A.
malicious acts intended to outrage reli�gious feelings of any class by insulting
its religion or reli�gious beliefs:
Whoever, with the deliberate and malicious
intention of outraging the religious feelings of any class of 273 [citizens of
India], 274 [by words, either spoken or written, or by signs or by visible
representations or otherwise], insults or attempts to insult the religion or the
religious beliefs of that class, shall be punished with imprisonment of either
description for a term which may extend to 4[three years], or with fine, or with
both.]And it even may happen that this section may be framed or charged on me
as we all know how the quality of scientific temper environment we all are
living in but is written in good faith so exemptions is provided. And in the
case due to marital rape if a woman due to down gradation in her psychological
and emotional factor if she commits suicide then we can also put section 306
abetment of suicide. Abetment of suicide.-If any person commits suicide,
whoever abets the commission of such suicide, shall be punished with
imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine.
My last and pivotal argument is section 312 and that is312. Causing
miscarriage.-Whoever voluntarily causes a woman with child to miscarry, shall,
if such miscarriage is not caused in good faith for the purpose of saving the
life of the woman, be punished with imprisonment of either description for a
term which may extend to three years, or with fine, or with both; and, if the
woman is quick with child, shall be punished with imprison�ment of either
description for a term which may extend to seven years, and shall also be liable
to fine. Explanation.-A woman who causes herself to miscarry, is within the
meaning of this section.
Let's look at this section carefully, if due to marital rape if she got pregnant
and due to this his partner asked her to go for miscarriage due to any
economical or patriarchal mindset or choice then here is faith is right or
wrong? if yes then it's okay and if no let's think.
I am not saying that everything should be biased and tilted in favor of
feminism idealogy or masculinity but if there is misuse by any grounds which can
be improvised then we can altogether form a just society better.