Bharati Vidyapeeth Deemed to be university

NEW LAW COLLEGE , PUNE

Course:BALLB Sem 3
Subject -constitutional law
Assignment
Name -Shailesh chahar
Sec -C
Roll no. -60
Marital rape: Marriage can't mean irrevocable
implied consent
Our lawmakers need to understand that marriage should
not be viewed as a license for the man to rape his wife.
Indian men can legally rape their wives. Marriage is a
license to rape in India. No doesn't mean no in a
marriage in India. Not all rape is rape in India. Let's now
say it this way -- India's rape laws don't apply if a man
rapes his wife.
THE SITUATION
In 2013, A UN committee recommended that the Indian
government criminalise marital rape. The JS Verma
committee set up in the aftermath of the Nirbhaya
protests also recommended the same. There have been
many committees, many reports, but the fine print
remains the same.Also 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
Status of Marital Rape in India
Section 375 of the Indian Penal Code defines rape as
"non-consensual sexual intercourse with a woman".
However, it exempts the husband from any penal
consequences if he forces intercourse on his wife without
her consent, given that his wife is above the age of 15
years. The 15 years bit was written down to 18 years by
the Supreme Court. Marriage in India under the law
means irrevocable implied consent. Article 14 of the
Indian Constitution ensures that "[t]he State shall not
deny to any person equality before the law or the equal
protection of the laws within the territory of India."
Although the Constitution guarantees equality to all,
Indian criminal law discriminates against women, women who
are raped by their husbands. Violative of Article 21:
According to creative interpretation by the Supreme
Court, rights enshrined in Article 21 include the rights to
health, privacy, dignity, safe living conditions, and safe
environment, among others In the State of Karnataka v.
Krishnappa, the Supreme Court held that sexual violence
apart from being a dehumanizing act is an unlawful
intrusion of the right to privacy and sanctity of a
female.In the same judgment, it held that non-
consensual sexual intercourse amounts to physical and
sexual violence.In the Suchita Srivastava v. Chandigarh
Administration, the Supreme Court equated the right to
make choices related to sexual activity with rights to
personal liberty, privacy, dignity, and bodily integrity
under Article 21 of the ConstitutionThe 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. Last month, 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. The Kerala High Court noted, "Treating
wife's body as something owing to husband and
committing a sexual act against her will is nothing but
marital rape. Right to respect for his or her physical and
mental integrity encompasses bodily integrity, and any
disrespect or violation of bodily integrity is a violation of
individual autonomy."
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. 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. All that the Indian judiciary has done is
raise the age from 15 to 18. In effect, if your wife is 18,
you have a hall pass for spousal rape. The Law
Commission in its 172nd report had opposed
criminalising marital rape on the ground "that it may
amount to excessive interference with the marital
relationship" and said forced sexual intercourse by a
husband can be treated as an offence just like any other
physical violence by a man against his wife.
While a parliamentary standing committee has said if
marital rape was made a crime, the family system will be
under stress and it could lead to practical difficulties.In
2016, the government told the Rajya Sabha that the
concept of marital rape was an international one and
cannot be applied in the Indian context due to factors of
poverty, illiteracy, social customs, religious beliefs and
the 'sanctimony of marriage'.
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.