MARITAL RAPE IN INDIA

Introduction: Both pillars of humanity i.e. men and

women have equal importance and role in creation and
development of the humanity but the women are bound to
face several humiliations in the society. Despite various
safeguards and protections available at the global as well
as at national level, before birth till last breath, women are
discriminated. The offences against women are endless

as- sexual harassment, dowry-death, domestic violence,

and so on. Among other problems marital rape is very
crucial as it is not recognized till date in our Indian legal
system as a crime, which needs immediate attention of the
Legislature.

What is Marital Rape?

‘Marital rape’ occurs in all types of marriages regardless
of age, social class, race.The expression ‘marital rape’
refers to ‘unwanted intercourse’ by a man with his wife
obtained by force, threat of force, or physical violence, or
when she is unable to give consent . At the international
level, various countries have enacted and declared marital
rape as offence like- Australia, Austria, Belgium and,
Brazil, Canada. According to the National Crime Records
Bureau’s (NCRB) ‘Crime in India’ 2019 report, about
70% of women in India are victims of domestic violence.
One such manifestation of this domestic violence is
Marital rape. India is one of the only 36 countries
where marital rape is still not criminalized. In fact, the
incidents of marital rape are totally against basic human
rights which are provided to every individual by birth.
DE FACTO its there but NOT DE JURE means marital
rape is not an offence ,,as per the legal world it does not
exist but in the physical world it exist because there are so
many cases.The definition of rape codified in Section 375
of the Indian Penal Code (IPC) includes all forms of
sexual assault involving non-consensual intercourse with
a woman.
Non-Criminalization of marital rape in India emanates
from Exception 2 to Section 375.because it says that
sexual intercourse by a man with his own wife and then
the wife not being under fifteen years of age is not rape .
As per current law, a wife is presumed to deliver
perpetual consent to have sex with her husband after
entering into marital relations.The concept of marital rape
in India is the type of what we call an “implied consent”.
Marriage between a man and a woman here implies that
both have consented to sexual intercourse and it cannot be
otherwise.
The Supreme Court of India and various High Courts are
currently flooded with writ petitions challenging the
constitutionality of this exception, The latest decision by
the Chhattisgarh High Court, found atrocious by many,
shouldn't surprise. After all, the learned Chhattisgarh
High Court judge NK Chandravanshi was only quoting
from the law of the land when he cleared a man, accused
of raping his wife, with the verdict that sexual intercourse
by a man with his wife is not rape -- even if it is by force
or against her wish. Strangely, High Courts in India
have often differed on the legality and definition of
marital rape.. , the Kerala High Court ruled that marital
rape, though not recognised under the penal code, could
still be considered grounds for divorce as a form of
cruelty. In 2018, the Gujarat High Court had ruled that
non-consensual intercourse by a husband was not rape.
The same year, the Delhi High Court observed that both
men and women had a right to say "no" and that marriage
did not mean consent.
 In 2018, a private Bill called the Women's Sexual,
Reproductive and Menstrual Rights Bill, 2018, introduced
by Congress MP Shashi Tharoor in the Lok Sabha, sought
to criminalise marital rape. The bill lapsed after failure to
garner support from the government. The best that the
highest court in our country has done is to rule in 2017
that sex with a minor wife will amount to rape. It watered
down the exception to section 375 of the IPC which said
sexual intercourse by a man with his wife not under the
age of 15 would not amount to rape.

INDEPENDENT THOUGHT VS
UNION OF INDIA 2017
In india child marriage is prohibited by law under child
marriage act 2006But it still followed as a custom in
many states of india such as rajasthan ,Haryana bihar etc
Consent under almost most of the statues in india is 18
year The heinous offence of rape under sec 375 of the ipc
refuses recognize sexual intercourse, between a man and
his wife,who is aged between who is aged between 15 -
18years as rape.
THE QUESTION ARISES THAT
 If a girl between this age group is treated as a child under
most of the statues then how she is able to communicate
her consent for sexual intercourse just because she was
married at a young age .In the opinion of the two judge
bench of the SC .Sexual intercourse with a girl below 18
years of age is rape regardless of whether she is married
or not .The exception carved out in the ipc creates an
unnecessary and artificial distinction between a married
girl child and a unmarried girl child .the artificial
distinction is arbitrary and discriminatory and is definitely
not in the interest of the girl child. The SC also observed
that this exception is contrary to
Article 15 (3)
Article 21 of the indian constitution .
All that the Indian judiciary has done is raise the age
from 15 to 18 .
IN 2013 the UN committee on elimination of
discrimination against women CEDAW recommended
that the indian gov .should criminalize marital rape
There is another case law related to this issue .
IN THE HON'BLE DELHI HIGH COURT,
AT NEW DELHI
EXTRA ORDINARY
WRITJURISDICTION
W.P. (C) No.284/2015
IN THE METTER OF:
RIT FOUNDATION ... PETITIONER
VERSUS
THE UNION OF INDIA .. . RESPONDENTS
'
BRIEF SUBMISSIONS ON BEHALF OF
RESPONDENT I
UNION OF INDIA
 That marital rape is not defined in any statue/ laws.
While rape is defined under Section 375 of IPC,
defining marital rape would call for a broad based
consensus of the society. What may appear to be
marital rape to an individual wife, it may not appear
so to others . As to what constitutes marital rape and
 what would constitute marital non rape needs to be
defined precisely before a view on its criminalization
is taken.
 2. That it has to been ensured adequately that marital
rape does not become a phenomenon which may
destabilize the institution of marriage apart from
being an easy tool for harassing the husbands. The
Supreme Court and various High Courts have already
observed the rising misuse of section 498A of IPC
•3. That merely deleting Exception 2 will in no way serve
any
useful purpose as a man is said to commit 'rape' as defined
under Section 375 of IPC cannot be the same in the case
of marital rape If all sexual acts by a man with his own
wife will qualify to be marital rape, then the judgment as
to whether it is a marital rape or not will singularly rest
with the wife.The question is what evidences the Courts
will rely upon in such circumstances as there can be no
lasting evidence in case of sexual acts between a man and
his ovyn wife.
 4. That as regards Section 376B of IPC and 198B of
CrPC it is stated that these Sections flow from the
 except'ion t<} Section 375 as presently sexual acts by
a man with his own wife is not seen as an offence.
 5. That the Law Commission in its 172"d Report
titled Review of Rape Laws and the Department
Related Parliamentary Standing Committee on Home
Affairs in its 167th Report have examined the matter
and did not recommend the criminalization of marital
rape. Even though the Justice J S Verma Committee
in its Report titled "Amendments to Criminal Law"
recommended that the exception to marital rape be
removed, it also pointed out that it is also important
that the legal prohibition on marital rape is
accompanied by changes in the attitude of the
prosecutors, police officers and those in society
generally.
 6 Thus merely deleting the exception 2 of Section
375 may not stop marital rape. Moral and social
awareness plays a vital role in stopping such an act
That the fact that other countries, mostly western,
have criminalized marital rape does not necessarily
mean India should also follow them blindly. This
country has its own unique problems due to various
factors like literacy, lack of financial empowerment
 of the majority of females, mindset of the society,
vast diversity, poverty, etc.
 7. That criminal law is in the Concurrent List and
implemented by the States. There is a vast diversity
in the cultures of these states. It is necessary to
implead the State Governments in the matter to know
the opinion of these states to avoid any complications
at a later stage.
Conclusion:
A marriage is a bond of trust, love and affection.
Undoubtedly, sex is a normal commitment of marriage
but use of force or violence in sexual intercourse is
against bodily integrity and emotions of the concerned
wife. De facto, the wife can bring a criminal case
against her husband for criminal assault or injury or
matrimonial relief for forcible sex, but what is needed is
the incorporation of marital rape in our legal system.
The wife must be honoured. Laws bestowed an absolute
immunity on the husband in respect of his wife, solely
on the basis of the marital relation which is totally
against basic human rights. If a woman consents to be
married it does not mean that she consents to be raped
by her husband. She has also her entity and the line
drawn between rape within marriage and rape outside
marriage is outdated and has no relevance in present
scenario.