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MARITAL RAPE IN INDIA

Article in Law · March 2022

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Rajpreetkaur Kadamb
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INTRODUCTION

The question or debate in society today is what is marital rape and whether it should be a crime
or not? Marriage refers to the marital relationship or the relationship between a married couple.
Rape means that a man or woman is forced into a sexual relationship with another person. Is a
woman or a man losing his or her sexual independence after marriage? The Honorable Justice
DY Chandarchud took the initiative to challenge the Right to "No" (sex) after marriage. It is
commonly believed that one spouse should confirm the legitimacy of another's sexual relations,
but in ancient India, marital rape was not considered acceptable. The main reason for this idea
was the patriarchal framework of Indian society and that women were considered ‘property’ or
‘conversation’ of their husbands. In present-day India, however, courts are taking cases on the
basis of this issue even though India is among the 36 countries where marital rape has not been,
criminalized, unlike the other 150 countries.

When two people of the opposite sex give their marriage license. Most importantly, they must
have reached the age when they entered into a marriage contract and it should be in writing.
Different religions have different requirements for legal marriage. But the point made above is
still the same as recently adopted according to their religious tradition.

RAPE

Rape is one of the worst and most common crimes against women. The fourth most common
crime in India. Rape is defined under Section 375 of the Indian Penal Code, 1860

Under Section 375 of IPC, 1860 a man is said to commit rape if he penetrates his penis, to any
extent, any object or a part of the body, not being the penis into the private part of a woman or
manipulates any part of the body of a woman under any circumstances:

1. against her will;

2. without her consent;

3. with her consent when her consent is obtained by placing him or her in fear of death or injury
or when his or her consent is obtained when she is intoxicated or in poor health or

4. when she believes that she is legally married to that person but is not her husband either

5. when she is under 18 years of age or unable to communicate with the permit.

This is rape. There are two exceptions under this Section; secondly, a man who does not meet his
wife under the age of 15 is not said to have raped her.
In addition,punishments for rape are provided under Section 376 of the Indian Penal Code, 1860;
whenever a person is raped they will be punished with severe imprisonment which may result in
life imprisonment and a fine. When it comes to marital rape, it is not defined under the IPC
because a certain category of women is still struggling.

MARITAL RAPE

Currently, under any law, India has no provision for rape in marriage. We can generally
understand marital rape. Usually, marital rape is when a woman is forced by her husband to have
sex after marriage, when it is against her will and her consent is not granted. It is said that
forcible sex for one partner is for another.

Also, marriage or conflict in a person's family is considered a personal matter of a certain family
in India but also violates a woman's right to protect her body in an abusive relationship with her
husband or sometimes even in law.Then she becomes a victim of domestic violence. Domestic
violence is one of the common forms of abuse that occurs after a woman is married, physically
or emotionally or mentally. The sad part of such brutal crimes against a woman is that, although
her family knows so she is advised to stay, no one comes forward to report the same and in the
end, we often lose an innocent soul. It destroys a woman's mental health in all these matters, she
is tormented day and night, weeks and months, judged by society if she takes any precautionary
measures or appears to be a woman who disobeys her husband.

The Constitution of India and Indian laws regarding marital rape

A woman's basic rights are violated as a result of abuse by her husband. Article 14 and Article 21
of the Constitution states that the right to equality and equal protection of every citizen and the
right to life and personal liberty shall be guaranteed. Some men think that the person they are
marrying is their property, however, a woman is not someone else's property because a woman
has as much of a right to rights as anyone else.

Women have shown countless times in many fields such as education, sports, elections that they
are no less than men. When they get opportunities or opportunities they will do their best to
achieve the goal. Today, Women still have to fight for the basic rights they were given years ago
when the Constitution of India was drafted. Marital rape is a heinous crime and has been
legalized in many lands. It is time for the Indian government to look into this.

• CASE: In Nimishbhai Bhartibhai Desai vs State of Gujarat 2018, the question was raised
whether a man forcing his wife to indulge in oral sex would be equivalent to rape or not and
should he be punished under Section 376 of the IPC?

The court took the matter and said that our country has not committed any crime of rape so far.
Because of the politicians' fear that it will undermine the institution of marriage and women may
use this to seduce their husband and sue him. Marital rape is not considered legal as it is the same
as rape by a man so if any husband beats his wife he will be punished under the IPC for assault
but if the same husband forces his wife to indulge. in a sexual relationship you will face the
charge of assault only under a legal marriage and not rape.

Marital rape or rape of a spouse is a sexual act with a spouse without the consent of his or her
partner. Considered a form of domestic violence and sexual assault Historically, sexual
intercourse between a man and a woman was considered a right of permissive or unmarried
couples and Section 375 of the IPC provides alternatives to providing protection from marital
rape.

• First, Section 375 defines rape and sets out 7 consent forms, if raped, including a case of male
rape.

• However, Optional 2 to Section 375 exempts unlawful sexual intercourse between a man and a
woman over the age of fifteen years, but in Independent Thought v. OO (2017), the Supreme
Court increased this age to 18 years.

• According to the Independent Thought case, "Sexual intercourse between a man and his wife, a
woman under the age of eighteen, is not rape." Therefore, the courts these days take these years
(18 years) by setting this case as an example.

The Role of Justice

Legislatures have been claiming that marital rape is now under the IPC which means that a
married woman in the event of rape without consent can apply Article 498A of the IPC
(brutality) or an act of domestic violence but not section 375, but the Judiciary took a different
decision. Here is the some of latest events:

Delhi High Court in RIT Foundation v. The OI and other related issues (2022) had challenged
the legal validity of the ‘protection of marital rape’ provided under the exception of section 2 of
section 375 of the IPC. The case was dominated by important issues related to consent, the level
of state control over women’s sexual autonomy, and the redress of historical discrimination in
law.

1. The court here basically looked at how the dignity of married and unmarried women could be
divided and affirmed that regardless of marital status, every woman has the right to say ‘no’ to an
unacceptable sexual act.

2. The reason and emphasis is that relationships cannot be placed in a different place as a woman
remains a woman or married or unmarried.

3. The Court held that 'because she is married so that she can apply other civil and criminal laws
and not under section 375 (rape) of the IPC if she is a victim of forced sexual intercourse by her
husband, it is wrong. '.
4. Bench of Judge Rajiv Shakdher and C. Hari Shankar said the non-prosecution of husbands
under section 375 of the IPC had created a firewall and the court should consider whether the
firewall violates Article 14 & 21 of the Constitution. .

The Supreme Court of Chhattisgarh ruled that "sex or sexual acts committed by a man and his
wife would not be a crime of rape, whether compulsory or contrary to his will", and acquitted the
man of the charge. against him for his wife, (Bar & Bench Report)

1. The husband and members of his family submit a revised application challenging the charges
against his wife, Justice N.K. Chandravanshi refers to Exception 2 of Section 375 of the IPC
(which deals with rape).

2. The case is dismissed “in this case, the plaintiff is a legally married woman… therefore,
sexual intercourse or sexual act with him… the husband cannot be guilty of rape, even if it was
arbitrary or contrary to his wishes. ”

3. However, the judge accepted the other charges against the accused, namely Section 498A
(cruelty) on the husband and his family members, and Section 377 (unnatural offenses).

Marital rape outside of India and punishment

Since 1979 some countries have committed adultery in marriage by adding a code of penalties or
by repealing the exemption from the code or by introducing an act to protect a married woman.
Countries such as Brazil, Austria, Belgium, Finland, Canada, Dominican Republic, Ireland,
Israel have played a significant role over the years by changing the provision of a code of
conduct or making it legal before the 1980s or later.

• The maximum penalty for marital rape is 15 years in a prison in Austria committed in 1979.

• In 1994, Finland committed crimes and imposed a sentence of up to four years in prison; and if
violence is committed against a married woman the punishment given is severe.

• Jordan: a man who raped his wife in marriage will be severely punished for at least 10 years in
prison.

• Ireland: removes exemptions from marital rape in Irish criminal law.

• Germany: in 1947, liberation was abolished.

• Dominican republic: rape of a spouse became a crime in 1997.

• In the US: marital rape has been committed.

• Israel: In 1980, a Supreme Court of Israel ruled in favor of rape in a marriage. It was
considered a serious crime, punishable by imprisonment for up to 16 or 20 years.
India: It does not consider rape to be a crime, but there is an exception to the IPC under section
375, a man who has sex with his wife over the age of 15 is not considered to have been raped by
her husband. While having sex with a divorced woman is considered rape and such person will
be sentenced to 7 years in prison under a law.

The pros and cons of marital rape

Arguments in favor of criminalizing marital rape

• It is argued that marital issues are included in the “Protection of Women from Domestic
Violence Act 2005”.

• Domestic Violence Act the courts are considered a civil law and therefore the respondent can
flee without arrest.

• Civil law by definition is flawed and cannot effectively deal with serious crimes such as rape,
murder etc.

• Every woman must have sexual intercourse after marriage and her body and the exception of
section 2 of section 375 violates Sections 14 and 21 of the Constitution.

• Cases of marital rape are also debated as covered under Section 498A of the IPC (cruelty), but
we also do not explicitly talk about rape.

Disputes against committing the crime of rape in marriage

• It is argued that marital issues are included in the “Protection of Women from Domestic
Violence Act 2005” Therefore, there is no need for a separate withdrawal under Section. 375.

• If marital rape is committed as a crime, there is a high risk of abuse which is a major cause
cited by individuals, legal experts and male rights activists.

• Statistics show the gross misuse of 498A, the law relating to bribery cases. Some activists have
even claimed that 85% of bribery cases are fraudulent.

• Deepika Narayan, a human rights activist, wrote an article in 2020 about the abuse of 498A.

CONCLUSION

In a case written by a human rights activist (Deepika Narayan), a total of 111,549 cases were
registered under 498A by 2020. Of these, 5,520 were dismissed by the police as false and 16151
in total were dismissed by the police on the grounds that it was a lie or a fact or a law where
many husbands commit suicide after being charged under Section 498A and, on the other hand,
women in many cases are forced to have sex outside of marriage. of consent, marital rape will
not be considered minor. worse off than any other form of sexual violence. Therefore, it would
 be difficult to say whether marital rape in India would be a criminal offense or not as it is both
beneficial and annoying.

What good is it if a married woman is raped by her husband and then punished for assault and
not rape? The investigation may say how long the wife was raped but the investigation cannot
tell us how she was abused in the last few days or months or sometimes even years. Even if the
husband does the same thing it is a crime for his wife who should protect him and not endanger
his life or violate his dignity or degrade him in any way.

He must be punished for what he has done to the human body. We cannot measure the wounds
(physical and mental) that he has caused and no one can compensate us for these acts. We should
support such women because not all abused women choose to talk about her abusive
relationships. We as respected citizens of India should help her, comfort her, guide her and in
this process protect another woman. Although it is now known to us that in India a woman who
is legally separated is protected under a different law by Indian law married women should also
be protected. In my opinion, the second release granted under Section 375 of the Indian Penal
Code, 1860 should be amended by amendment to protect the Indian woman from marital rape. It
is time for the Indian authorities to take action and issue a landmark ruling on marital rape.

REFERENCES

1. Prof. S.N Misra, The Indian Penal Code, Central Law Publications,20th edition, reprint
2017
2. Marital Rape in India: 36 countries where marital rape is not a crime, India Today, Mar. 12, 2016
3. https://indiankanoon.org/doc/185050052/
4. https://en.wikipedia.org/wiki/Marital_rape
5. https://www.jstor.org/stable/26636357

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