Marital Rape in India

Marital rape is a non- criminalized crime yet a heinous offence over- looked by the legislators as an exemption. Marriage does not give any person the license to commit atrocities against women and the present article deals with marital rape.

We all know how rape is a heinous offence for which severe punishment is given, however marital rape is never considered to be an offence as women in India are considered as an entity of their husbands, their life motto is only to serve husbands. With the changes happening over the past few decades, we have seen a tremendous shift in the thinking of the people and women becoming more aware about their rights. Still marital rape in India is not considered an offence.

Section 375 of Indian Penal Code, 1870 defines rape and punishes any person severely who indulges in forceful sexual act. However, exception 2 exempts a man from punishment if he forcefully had sexual intercourse with his wife above 15 years of age. It is considered that after marriage woman consents to have sexual intercourse with her husband. India is among the 36 other countries that have not criminalized marital rape¹. Let’s look at the international scenario.

USA- Till the 1970s, marital rape was not considered as a criminal offence, and rather was included as an exception to the offence of rape. After 1970s there were tremendous reforms taking place in the US and initially marital rape was an offence only if husband and wife lived separately and the husband committed forced sexual intercourse on her. In 1978, this law was challenged in the case of Oregon v. Rideout². Though the husband was not held guilty in the case, it lead to huge protests and gradually all 50 states had criminalized marital rape. In 1993, it was declared by the U.N. Declaration on Elimination of Violence Against Women that any violence including marital rape is violative of women’s fundamental human rights. The General Assembly then urged all member states to adopt it however as it is non- binding even today we can see few countries including India where marital rape is not recognized as a crime.

As a result of the fourth World Conference on women in Beijing, 1995, the Beijing Declaration was adopted. It reiterated the prevention of violence against women including physical, Sexual and physiological violence occurring in the family, and thereby it includes marital rape.³

Indian Penal Code was drafted at the time of Britishers during which women had not acquired their liberty. But now, the times have changed, several developed countries have criminalized still in India, it is not. The concept of marital rape is deeply intertwined with the concept of consent. By not recognizing marital rape as a crime, it overlooks the privacy of a woman which is her fundamental right guaranteed under Article 21 of the Indian Constitution. Article 14 permits classification which must be reasonable and must have a rational nexus to the object sought to be achieved.⁴ However, treating married women different and her right to consent and privacy does not meet the criteria for reasonable classification.

Right to bodily self- determination is the right of a person to decide independently and voluntarily about one’s own body, and marital rape violates this basic right. As it takes away a woman’s right to decide over her sexual matters.

It was rightly observed in the landmark judgment of ‘The Chairman, Railway Board v. Chandrima Das⁵ , that rape is not just an offence against a woman but also against the whole society. It is a violation of basic human rights and the right to live with dignity.

Conclusion-

Rape is a heinous offence which is clearly overlooked by the legislators by exempting marital rape. If there is no provision for marital rape due to the fear of having cases with no substance then there are several other laws which misused by the people. It should not be a reason for denying the basic human right such as right to privacy or right to determine decisions of one’s own body.

[1] Sarthak Makkar, Marital Rape: A non- criminalized crime in India, (Sept. 15, 6:36 PM), https://www.harvardhrj.com.

[2] 308 Or. App. 689.

[3] Marital Rape Laws in India and Internationally: All you need to know, LAW CIRCA, (Sept. 15, 2021, 5: 58 PM), https://lawcirca.com/marital-rape-laws-in-india-and-internationally-all-you-need-to-know/.

[4] Ramakrishna Dalmia v. Justice Tendolkar, AIR 1958 SC 538.

[5] SLP (C ), No. 16439