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Marital Rape With Respect To Article 21 Of Indian Constitution

India is a very diversified country that is full of cultures and values, marriage is one of the key things that describe our diversified nature. Marriage is a relationship between spouses that right after the marriage give them the legal right to sexual intercourse. The question that comes to mind here is that the consent that was given at the time of getting married or so-called contractual bond relationship does it mean that the consent extends till they are married, or it has any limit from the aspect of wife?"

To answer this question this paper talk about constitution validity under ARTICLE 21. India is one of the countries that grow itself with time and always brings new laws for the betterment of society and the nation, ironically the fact says that India is one of the 36 countries that still waiting to criminalise marital rape.

How would you feel if I say RAPE is still legal in India?
Yes, it's still legal for the husband toward the wife, according to "INDIAN PENAL CODE under section 375 [1] the sexual intercourse by a man with his wife not being under 15 yr. of age is not rape". While I disagree with the definition of rape as I am having Right to Dissent, the updated definition of rape should be the act of sex forced by a husband on his wife if it is done without consent or against the will of any of the individual it is rape.

We cannot distinguish between marital rape and rape they both are the same as the act of sex was forced and it was without consent. Marital rape is worse than rape it's not only that your individual rights are violated or you are sexually harassed but the next day you have to wake up next to the rapist and have to make breakfast for him and pretend that nothing happened, and everything is okay and when it's come to marital rape it is only considered rape when the wife is below 15 yrs. of age.

This law itself violates or contradicts other law that how a couple can get married when she is 15, as the legal age of a girl on which she can give consent for marriage is 18, first it was approved in the "amendment of Child Marriage Restrain Act 1929 in 1978 [2] and then the same was approved in Special Marriage Act 1954 [3] and same by Prohibition of Child Marriage Act 2006 [4]".

Historical Perspective
Now let's talk about how it started and what history marital rape has, in most of the other parts of the ancient world firstly the law defines rape as a crime of property against the male spouse and rape was impossible within marriage because a man can do whatever he wanted to do with his property (wife) without any cross-questioning.

A British jurist named Mathew Hale[5] even said that marriage was a legal contract by which a woman "gave herself" to her husband for life which she cannot retract. Still in some cultures, consent is not considerable given by a female spouse. After the arranged marriage, the families become a guarantor for the consent till they are married [6].

The wife's body control is in hands of the husband's body and this example was constructed in 1707, John Holt who was the English Lord Chief Justice explained the act of a man who is having an affair with another man's spouse it was the violation of the takeover of the property, for this reason in many cultures there was a merging of two different crimes adultery and marital rape both were seen as the violation of rights of husbands, marital rape was treated as a property crime against the male spouse not against the female spouse right to self-determination [7] and treated as exception of the rights of women.

Constitutional Validity
As per the law, a wife is forced to serve a perpetual consent to have sex with her, which means girls, and women who are married have no individual rights like[8]
  • Right to say NO
  • Right to live with human dignity
  • Right to make choices
  • Right to privacy
  • Right to life and personal liberty
  • Right against inhuman treatment
  • Right to health

These are the rights of an individual that are covered in ARTICLE 21 which assures an individual their protection of life and their personal liberty. Article 21 of the Indian Constitution has been given a wide understanding in various judicial judgements like in Maneka Gandhi V. Union of India [9] in this case "Right to Life and Personal Liberty" recognised the importance of self-determination, privacy that includes sexual privacy within itself also and the right to govern our own body. Thus article 21 is becoming the source of many procedural safeguards and substantive rights to the people.

The issues that are fundamentally affecting a person's privacy, and how it indicates the right to privacy, can be resolved to some range by recognizing the age-old concerns that still live in the mentality of family. Although the Judiciary does not give judgement in philosophical terms when they use the right of privacy, in the statement of judges the court had set some fixed basic philosophical elements of the concept that is right of privacy.

The enactment of privacy incorporates 3 essential elements: control, identity, and affinity. In the case of Justice K.S. Puttuswamy (Retd.) V. Union of India[10] the Supreme Court concluded the Right to Privacy as an important right for all citizens. These elements are understood in regard to each other, making us understand that a definition of privacy always involves "control over the affinity of one's identity".

In this way, privacy protects our fundamental aspects of selfhood under Article 21. Control is an essential tool in the conception of privacy. The ability of every individual to decide for himself or herself to give consent or not to give consent. This belief of control bound those decisions that have an effect on oneself and also on those decisions which can cause impact others.

Developing and maintaining one's personal liberty and identity which certainly involves the range to have an effect on others. Interactions with a different person, unfold our personal identities and reveals themself. The Supreme Court has specified this dual impact of self-governed decision-making in the interests that are specifically protected by privacy. "Thus, governmental action or intentional neglect which undermines autonomy over one's identity and decision-making impinges on privacy interests".

The right to govern our own body is interfered with by the marital rape. In the case of State of Karnataka V. Krishnappa[11] the judges concluded that the dehumanizing act and sexual violence against a woman is an illegal intrusion on the Right to Privacy in the similar judgement it was held that sexual intercourse without consent leads to bodily and sexual violence.

Intentionally refusing the approach to the criminal justice system to the female spouse who has been sexually harassed by her husband, the state concludes her irreversible consent for sexual relations legitimacy with her husband. In the case, Suchita Srivastava v. Chandigarh Administration[12] it was concluded by the judges the right to make choices was connected with sexual interest that covers the sanctity of a woman, and her personal integrity.

When the state ordered that a married woman cannot bring a charge against her husband for rape, the state neglected the wife autonomy to consent to whether to undergo a particular experience or not. Allowing the female spouse to have the control over the decision that will give her freedom to develop a personal identity, the right to privacy protects the control over one's life. But still married women are not given this right her personal identity limits their constitutional right of Right to Privacy that is covered under Article 21.

According to a report of the National Family Health Survey[13], eighty per cent of the wives reports their spouses as perpetrators and only nine per cent of them report their husband as a former husband in which happy with their decisions and their consent is valued. The fight to criminalising the Marital Law should not be just about changing the law on paper, but it should be about changing the age-old mindset that still sees a married woman as the husband's property as these mindsets are violating the constitutional rights of married women as an individual.

In the present time, women are not raising their voices because people don't think about themselves, they think about the society they think about "Log Kya Khenge". Men do not see Marital rape as rape they see it as a legitimate right of having sexual intercourse if the wife declines, they just have two things to say:
  1. How dare you refuse?
  2. You are my wife.

Men tell this statement as when they got married it gave them a license or legal right of committing physically, mentally, and sexually assault. Sex these days is becoming more about dominance than love, until the government brought marital rape upfront the people didn't know it existed. Whenever government decide not to do something they give us logical reasoning this time they said in Marital Rape that they can not criminalise it as marriage is a sacred institution it's about customs, values, and Indian cultures.

Indian men understand Marital Rape the same way Indian Women understand the offside rule meaning in football in both cases it's all about a line that should not be crossed, and that line is consent. The problem with Indian men is that we can't handle rejections, which is ironic that is the one thing we should be good at, I think the only time when an Indian guy is not rejected is when he is born.

At last, I would only like to conclude by this paper that this mentality has to be changed soon otherwise our women will be in great danger as it is making rape legal, one time yes never means every time, yes and it doesn't mean you never have to ask again. In India Marital Rape is being suppressed by constitutional morality and it's overruling the public morality as the women are against it, but they cannot do it as it is not their right to raise their voice after getting married, they are not considered as individual they are seen as "them", not "her".

In this society women are more at fault as being silent about a crime is also a crime because of this they have created a mindset in the men they won't raise their voice, so they start forcing women.

I saw a great movie PINK in which Amitabh Bachan says:
"No is not just a word it's a sentence it does not require any clarification, definition, or explanation No means No even she is prostitute, sister, girlfriend, or even your wife and if someone says NO you should stop. The consent is very necessary, and it should not be once it should be every time not a fixed consent extending till they are married.

  1. Indian Penal Code, 1860, Section 375
  2. Child Marriage Restrain (Amendment) ACT, 1978
  3. Special Marriage Act, 1954, Conditions for Marriage
  4. Prohibition of Child Marriage Act, 2006, Offences, and punishment
  5. Rob Jerrard, "Marital Rape" (1992), 340 The Police Journal, 65
  6. Yll´┐Ż K and Torres MG, Marital Rape: Consent, Marriage, and Social Change in Global Context (Oxford University Press 2016)
  7. Hasday JE, "Contest and Consent: A Legal History of Marital Rape" (2000) 88 California Law Review 1373
  8. V.N. Shukla's, The Constitution of India (Eastern Book Company 12th edition 2013) Article 21
  9. Maneka Gandhi V. Union of India SC [1978] AIR 597, 1978 SCR (2) 621
  10. Justice K.S. Puttuswamy (Retd.) V. Union of India, (2017) 10 SCC 1, AIR 2017 SC 4161
  11. State of Karnataka V. Krishnappa AIR (2000) 4 SCC 75, 2000 SC 1470
  12. Suchita Srivastava v. Chandigarh Administration (2009) 14 SCR 989, (2009) 9 SCC 1
  13. National Family Health Survey

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