Marital rape in India

Introduction

Marital rape in India is an act of Sexual intercourse with one spouse without their willful consent. The lack of consent by the partner becomes the essential element for this act and it may not necessarily involve physical violence by the partner. It is considered a form of domestic violence and sexual abuse in our society. However sexual intercourse after marriage was been considered as a right of spouses, engaging into it without the consent of the other partner. Marital Rape is now been classified as rape by many societies around the globe and also have increasingly criminalized. In many countries, violence against women has got international attention from the second half of the 20^th century. Marital rape is either beyond the criminal law or is been illegally and widely tolerated by many people in our society. It has been tolerated widely by women due to the lack of knowledge that having sexual intercourse without the consent of the partner’s will even after marriage is still a crime.

History of Marital Rape

Marital Rape has not been legalized under the Indian Legal framework until now. But if the partners are judicially separated , marital rape is considered as an offence. Forced intercourse by husbands upon wives does have legal consequences in Indian Matrimonial Law . In 1980s , women’s rights groups lobbied for marital rape to be declared unlawful . Under the Domestic Violence act 2005 , Marital Rape amounts to “ Sexual Abuse “ . With the help granted by this law aggrieved wives or female live – in partners can claim civil remedies , like injunction against violence , dispossession from home or direction  to the husband/partner to pay maintenance . The law kicks in to regulate sexual violence in marriage only in cases where there is extreme physical violence or the health and safety of the wife is endangered , as in the case of minor wives . In 1983 , major reforms were made in the rape laws . The non consensual intercourse between a separated couple was not been treated as Rape . Until 2017 , there was a discrepancy between two sub clauses of section 375 of Indian Penal Code . It stated that having sexual intercourse by husband with his own wife , where wife is not being under fifteen years of age , is not a rape . But the same provision stated that having sexual intercourse with women with or without consent , under the age of 18 years of age is said to commit Rape . After this supreme court upheld the age of consent as 18 years of age . Marital rape status in India The very definition of Rape under section 375 of IPC demands change according to situations in our society . The narrow definitions has been criticized by Indian and International women’s and children organizations . The Law Commission of India in its 42^{nd and 172}  report put forward the necessity of excluding Marital Rape from the ambit of section 375. Article 14 and 21 of Constitution of India provide for equality and equal protection of law & right to Life and Personal Liberty respectively. In case of Marital Rape both of these laws becomes unconstitutional . The right to sexual privacy is protected under Article 21[1]. it also includes a right to be left alone . Any form of forceful sexual intercourse violates the right of privacy . In the case of Madhkar Narayan vs. State of Maharashtra[2] , Supreme court held that every women was entitled to sexual privacy and it was not open to for any and every person to violate her privacy as an when he wished or pleased. The women already has and is still being victimized by the individuals and the society . There is a need to treat her as a human being , provide respect and dignity in our society . Marriage is been considered as a license to legal unwilling sex in our society which need to be changed and criminalized by the law .

Sources:

[1] Kharak Singh vs. State of UP AIR 1963 SC 1295 . [2] AIR 1991 SC 207 .

This blog is written by Sarthak Batra, Fairfield Institute of Management & Technology.

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