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Author: S.Rahul Aaditya

Tamil Nadu Dr Ambedkar Law University

Marital Rape or spousal rape is the rape committed by the victim’s spouse. This offence can be regarded as both a form of domestic violence and even sexual abuse against women. It’s not necessary that the husband has to use force or even threaten to use force against his wife to have sexual intercourse,even if he has sexual intercourse without the consent of his wife then it will amount to Marital Rape.

State of Marital Rape in India

Section 375 of Indian Penal Code clearly defines what is rape. It includes all forms of sexual assault against a women which includes:-

  1. Sexual intercourse against the will of a woman

  2. Sexual intercourse without the consent of the woman.

  3. Consent which is obtained due to the fear of death.

  4. Consent given due to misconception that the man was her husband

  5. Consent given by reason of either influence of intoxication or unsoundness of mind.

  6. Sexual intercourse by a man with a minor girl(below 18 years) will always amount to rape. Here the consent is not taken into consideration, it can be with the consent of the girl or without the consent of the girl.

  7. Sexual intercourse by a man with his wife will only amount to rape if his wife is below 15 years.

From the above definition of rape we can clearly come to an understanding that in India unwilling sexual intercourse between a husband and wife will not amount to rape if the wife is above 15 years. Therefore at present in India Marital Rape is not a punishable offence rather a legalised crime . If the wife is above 15 and even if the wife does not give consent to sexual intercourse the husband can have sexual intercourse with his wife and it will not amount to rape under Section 375 of the Indian Penal Code and thus he cannot be punished under Section 376 of the Indian Penal Code.

Legal Position of Marital Rape in Other countries

Poland was the first country to criminalise Marital Rape way back in the year 1932. From there on many countries followed the footsteps of Poland and criminalised Marital Rape like USA in the year 1993, England in the year 1991 and in Mexico Marital Rape is treated as a heinous crime where the husband if proven guilty can be imprisoned up to sixteen years. As of 2020 India is one among the 36 countries which hasn’t criminalised Marital Rape. Even our neighbouring country Sri Lanka has criminalised Marital Rape. In other countries either the judiciary has played a key role in recognising it as an offence or the legislature has criminalised Marital Rape but in India neither the legislature nor the judiciary has taken any effort as of now in decriminalising Marital Rape.

Does Marital Rape Violate our Fundamental Rights?

In Bodhisattwa Gautham v. Union Of India the Supreme Court stated that rape is crime which is against the basic human rights. It violates the victim’s most valued fundamental right right to life guaranteed under Article 21 of our Constitution. Yet Marital Rape is not recognised in India. There have been various number of offences related to physical violence or physical abuse against the spouse but sexual violence against the spouse has not yet been considered as a crime in India. Marital Rape does not only violate the virtues of Article 21 of the Indian Constitution but also Article 14. Article 14 guarantees the fundamental right , right to equality before the law and equal protection of laws for all the citizens of India. But due to the exemption of Marital Rape in Section 375, it creates a difference between married women and unmarried women. It denies equal protection before the law for married women which is a violation of their fundamental right guaranteed by Article 14.The right to live with dignity is one of the most important qualities of the right to life guaranteed by Article 21. When a woman is raped whether married or unmarried, their right is violated . But in India as Marital Rape is not a crime, married women cannot seek for justice even though their right is guaranteed under Article 21 of the Constitution.

Marriage not equal to giving up autonomy

It is immaterial if a woman is raped by her husband or stranger, the person who is guilty should be punished. Few conservatives may feel that criminalising Marital Rape may break this institution called marriage but all these conservatives should keep this in mind that no institution is greater than a person’s dignity. When physical abuse against wives are considered as a crime in this country then sexual abuse should also be considered. A woman has complete right over her body let it be both before marriage or after marriage. It's the duty of the husband to obtain consent before having intercourse with his spouse. Yes, this law may be misused in few circumstances and yes few husbands may be falsely accused for Marital Rape. But that should not stop the legislature from making new laws. It’s high time India comes out of those 36 countries which have still not criminalised Marital Rape and make sure married women are guaranteed the fundamental rights guaranteed by Article 14 and 21.

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