Marital rape

Marital rape refers to sexual intercourse with one’s spouse without

their consent. However, it is an exception in Section 375, IPC. The
provision clearly states that “sexual intercourse by a man on his own
wife even without her consent will not amount to rape”. 

Marital rape is a big problem in India, and most people believe such a
thing doesn’t even exist. Wives are deemed to have given consent to
sex every time her husband wants, which is not only degrading to
women but a sinister law. 

A survey conducted by an NGO – RTI Foundation, showed that every 1

in 3 married women in India is subjected to marital, which brings the
number to about 83%. The statistics are very high, and the crime is
heinous, however, the law still remains the same. 

The aforementioned NGO had filed a petition in the High Court of

Delhi, seeking amendment of the same. In the matter of RTI
Foundation v. Union of India (pending), the court vide it’s
previous order observed that acquiring a woman’s consent via force, or
by any other means could amount to cruelty if not rape. Any other
means could include cutting financial ties with her, not providing
expenses for kids, etc. 

The petition is still pending before the High Court and a pragmatic
approach is expected from the court. Many developed countries such
as the U.K and the USA have already criminalised marital rape. It is
expected of our Courts to safeguard the equality of women by taking
appropriate steps.

Why is marital rape not a crime

It is simple to assume that marital rape has not been criminalised
because the statute decriminalising it was framed years ago when the
society in India was completely different and the framers of the law
used the best of their judgement while drafting it as per the current
needs of the society.

The law was inhumane even then and it still is, however, there are
some eminent jurists who are in favour of leaving the provision un-
touched. 

The former Chief Justice of India, Mr Deepak Mishra in a press

conference said that ‘there is no need to criminalise marital rape as
such laws might create absolute anarchy and will ruin our Indian
family values.’

This argument might seem harsh and cruel at first, but on further
analysing it, we can understand that the society in the west is very
different from ours, customary laws are different and even our
religions are different, all these factors combined with a high rate of
illiteracy make such an environment where people are not ready for
marital rape to be criminalised.
The aforementioned argument is made from a very conservative
approach, neglecting modernisation and women empowerment. It not
only neglects women empowerment but even takes away their right to
equality. 

In the case of Independent Thought v. Union of India, the Supreme

Court took a very pragmatic approach that marriage is no longer a
social contract but a personal relationship, and not even criminalising
marriage itself can destroy the institution of marriage. If laws like
divorce and judicial separation could not destroy marriage, it is very
unlikely that criminalising marital rape will. Even though marital rape
is still not a crime, we can hope for the laws to change in the near
future.