FOR POINTS

An analysis of National Family Health Survey (NFHS) 2015-16 data indicates that an estimated 99.1
per cent of sexual violence cases go unreported and that the average Indian woman is 17 times more
likely to face sexual violence from her husband than from others. This is what happens when laws
provide a safeguard to the culprits and endanger the victims?

The concept of marital rape in India is the epitome of what we call an “implied consent”. 

exceptions to this offence is “Sexual intercourse or sexual acts by a man with his own wife, the wife
not being under 15 years of age, is not rape”. However, the United Nations Declaration on the
Elimination of Violence against Women defines violence against women as “any act of gender-based
violence that results in, or is likely to result in, physical, sexual, or mental harm or suffering to
women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring
in public or private life.” Section 375 (Exception) of Indian Penal Code is inconsistent with and
violative of these principles and Article 1 of CEDAW.

Further, the Supreme Court has included sanctity of women, and freedom to make choices related
to sexual activity under the ambit of Article 21. Therefore, this exception clause is violative of Article
14 and Article 21 of the Indian Constitution, since it is arbitrary and violates the Right to Life of
married women.  creates a classification not only between consent given by a married and
unmarried woman, but also between married females below 15 years of age and over 15 years old.
Such a classification does not pass the test of “intelligible differentia” and is, therefore, prima facie in
contravention to the Right to Equality enshrined under Article 14.

Rape is rape, irrespective of the identity of the perpetrator, and age of the survivor. A woman who is
raped by a stranger, lives with a memory of a horrible attack; a woman who is raped by her husband
lives with her rapist. Our penal laws, handed down from the British, have by and large remained
untouched even after 73 years of independence. But English laws have been amended and marital
rape was criminalised way back in 1991. 

 A study done by the UN Population Fund tells us that more than two-thirds of
married women in India, between the ages of 15 and 49, have been beaten,
raped or forced to provide sex. We live in 2021, and this is the level of
barbarism in our country.
She’s now a wife, right? Of course, her consent is applicable 24 hours of the
day and 365 days of the year. ( sarcasm)
Not making marital rape an offence is a message to the entire women
community of india hat after she gets married, her body is her husband’s
property and her own right, her own agency and her own autonomy over her
body ceases to exist.
In a vox populi conducted by ScoopWhoop Unscripted a few years ago, men
were seen talking about marital rape as if a thing like that does not even exist.
“When you get married through a religious ceremony, you get a license to
have sex”; “How can it be termed rape? He is your husband, he has full rights
over you”; “How is this rape? If he cannot have sex with his wife, where does
he go?”; “If she wishes to have sex, she will lie down on the bed. If she does
not wish, she will not lie down”. These were some of the comments made by
the men in the video when the anchor, Samdish Bhatia asked them about their
views on the heinous practice.
Evidently, this provision not only discriminates between a married woman and
an unmarried one but also discriminated on the basis of age.
How can a mere societal institution be given so much more value than a
woman’s right to make a choice for herself? 
by placing so much value on marriages and family and pushing for status
quo, whose rights is the government protecting? The husbands raping or
the wives being raped?
A “no” is no. It does not matter if your wife says it or somebody else and both,
the men and the legal system of India need to stop at that.
Society is evolving each day, every day we as a community are progressing
but are laws do not budge.
 Rape is a crime of violence and the fact that the perpetrator and the victim
are married should have no more weight than it does when a husband
beats his wife. Simply bringing the marital rape laws into line with domestic
violence laws would improve the situation for spouse-victims in the states
where the marital rape distinction persists.

The argument that women misuse laws enacted for their protection
stems from the statistics that only about fifteen percent of dowry-
related cases under the Dowry Prohibition Act and about fourteenth
percent of cases under Indian Penal Code Section 498A result in
convictions. Contrary evidence is provided by the National Family
Heath Survey, which revealed that two out of every five women in
India are victims of physical, sexual or emotional domestic violence.
The discrepancies between survey results and conviction rates
indicate that the number of convictions do not always portray the
reality of the situation. Furthermore, low conviction rates often stem
from poorly led investigations, improperly collected evidence, and
omissions of witness statements.
The legal process for women to bring a case against her husband is
long, arduous, and embarrassing with remedies being difficult and
rare to obtain. Registering a case with the police often leads to
intrusive and insensitive questions, while judicial decisions indicate a
hostility towards women bringing claims against their husbands.
Oftentimes, after filing a case, women are advised to withdraw their
complaints. Additionally, the argument that illiteracy, poverty and
lack of education in India make the concept of marital rape
unworkable in the country directly contradicts the argument that
criminalization of marital rape would lead to misuse. If women are
not educated or resourced enough to allow proper implementation of
such a law, it follows that they would be just as ill-equipped to misuse
the law

Furthermore, the marital rape exception violates a number of India’s

international law obligations.
Marital rape is an infringement on the right to life. The right to life is
an essential right guaranteed by all human rights treaties and
customary international law Marital rape also equates to other
consequences that infringe on the right to life including increases in
miscarriages, complications during pregnancies, unsafe abortion
practices, and the higher likelihood of contracting sexual transmitted
diseases, all of which can lead to fatal results. As a result,
criminalization of marital rape is a fundamental obligation states must
undertake in order to meet their international law obligations. Under
the CEDAW, States are required to change social and cultural patterns
in order to eliminate prejudices that perpetuate stereotypes between
men and women. Maintaining an exception for marital rape
perpetuates stereotypes that a woman is the sexual property of her
husband negating any semblance of equality within the family. Under
the CEDAW, States are required to change social and cultural patterns
in order to eliminate prejudices that perpetuate stereotypes between
men and women. Maintaining an exception for marital rape
perpetuates stereotypes that a woman is the sexual property of her
husband negating any semblance of equality within the family.
Maintaining an exception to marital rape clearly infringes on a state’s
obligation to protect the health and well-being of women
SOLUTIONS
s. At the very least, the marital rape exception needs to be eliminated
making rape within a marriage a criminal offense and effectively
removing marriage as a defense to rape. Criminalizing marital rape is
only the first step that needs to be taken. In order to completely
eradicate marital rape, there are still various economic, social, and
legal barriers that need to be addressed in order to provide women
who face sexual violence in marriage with an effective remedy.
Gender-sensitivity training needs to be provided to various vocations
including the police and the judiciary. Furthermore, centers and
sanctuaries should be provided by the State in order to aid women in
removing themselves from violent environments and providing them
with necessary support services. Lastly, the State needs to adopt a
national policy towards eradicating pervasive stereotypes and stigma
against women generally and married women specifically.
Repeal the Marital Rape Exception
First off, it is imperative that the marital rape exception be entirely
eradicated from the Indian Penal Code.153 Similarly, the Code should
affirmatively define marital rape as a criminal offense, which would
also effectively prevent marriage from being used as a defense to rape
claims.154 Laws are enacted in order to punish unsocial behaviors,
provide deterrent against
socially unacceptable actions, and generally educate society regarding
the overarching consensus on moral and social conduct. By not
criminalizing such conduct and providing marriage as an affirmative
defense to rape allegations, the State effectively relates to society that
forced conjugal relations, even violent encounters, are socially
acceptable behaviors.It also perpetuates stereotypes and biases against
married women including the idea that consent is implied by marriage
and that women lose their bodily autonomy when entering into the
marital relationship.
B. Establish Efficient Police Practices
Secondly, the State needs to bolster efficient police practices.
Antagonistic police practices are a large hurdle that discourage
women from reporting violence in the first place. Furthermore, law
enforcement discretion allows police officers to refuse to file cases,
posing another barrier for women reporting sexual violence in marital
relationships.]Specifically, the State needs to establish Standard
Procedures for the police regarding cases of violence against girls and
women.
Establish Accessible Crisis Centers
Moreover, an important aspect of ensuring that marital violence
against women is appropriately prevented, the State needs to ensure
that women have access to important support mechanisms. Many
women, particularly in rural areas of India will not report sexual
violence to authorities because of their financial dependency on their
husbands. They fear that if they are separated from their husbands,
they will be left with no alternative support system. As such, the State
should establish widespread and accessible crisis centers where
female victims of violence and rape can receive shelter, medical and
psychological attention, legal assistance, and other needed support
services.
Combat Damaging Stereotypes
Women are less likely to report instances of rape within their
marriage because of the social stigma attached to rape victims in India
as well as the disrepute that attacks Stereotypes women who fail in
“making their marriage work.” As such, an essential factor in
combatting marital rape is the fight against deep-rooted stigma and
stereotypes concerning women. Specifically, it is imperative to
educate the masses that marriage does not indicate that a woman’s
legal and sexual autonomy have ceased to exist. women who fail in
“making their marriage work.” As such, an essential factor in
combatting marital rape is the fight against deep-rooted stigma and
stereotypes concerning women. Specifically, it is imperative to
educate the masses that marriage does not indicate that a woman’s
legal and sexual autonomy have ceased to exist. The State needs to
prioritize a national movement to fight and eliminate patriarchal
stereotypes by targeted awareness-raising campaigns.169 Along with
educating girls on their rights, it is imperative to involve and educate
men and boys in the effort to combat marital rape as well as the
overarching goal of attaining gender equality in India.
There is a pressing need to criminalize marital rape as
crime and amend divorce laws of the country by
making marital rape as a legal ground to take divorce
from an abusive marriage. The changes in divorce laws
by making marital rape as ground for divorce will
definitely be a great relief to all the victims of marital
rape who now will legally be able to take an action
against their respective spouse

Against

 promoting privacy and harmony in marital relationships, which

discouraged the state from interfering in the relationships. The lack of
a wife's consent is too hard to prove because the spouses would have
had consensual sex numerous times.
 Protecting the husband from false accusations of rape (for example,
during divorce proceedings).

 Other laws, such as assault and battery, provide a raped wife with
avenues for recourse that are less fraught than bringing rape charges
against her husband.

 because it will create absolute anarchy in families and our country is

sustaining itself because of the family platform which upholds family
values

  ( don’t compare w west as ) the basis of this argument is that marital

rape cannot work in India as it works in the West due to stark cultural
and socio-economic differences between the two regions. The
argument is that social customs and religious beliefs, combined with
staggering illiteracy create an environment wherein marital rape
cannot be criminalized seemingly because people aren’t ready for it.
  that those seeking to stop women being raped by their husbands
were “blindly” following Western customs, The Times of
India reported: “This country has its own unique problems due to
various factors like literacy, lack of financial empowerment of the
majority of females, the mindset of the society, vast diversity, poverty,
etc. and these should be considered carefully before criminalizing
marital rape.” LOOPHOLE : Interestingly, the cultural argument that
criminalizing marital rape won’t work in India because women are
illiterate, uneducated and poor directly contradicts the argument that
criminalization of marital rape would lead to misuse. If women are not
educated enough to properly use the law, it follows that they would
be just as unable to misuse the law.

 Once married, women’s perpetual consent is implied

 “easy tool to harass the husbands,

LOOP HOLE TO THIS ARGUMENT

 ( if divorce and judicial separation have not destroyed the institution
of marriage, criminalizing marital rape certainly can not either)
 hat women will falsely accuse their husbands left, right and center —
has been used time and time again for various domestic violence
laws enacted to protect women in India including the Protection of
Women from Domestic Violence Act, the Dowry Prohibition Act and
Section 498A of the IPC, which criminalizes physical and mental
cruelty against a woman by her husband or his family. There’s never
any direct empirical evidence for the misuse claim except the low rate
of convictions in dowry and cruelty cases, but what we do know
is two out of every five women in India are victims of physical, sexual
or emotional domestic violence. Choosing the number of convictions
as the parameter to gauge the reality of the situation is also
problematic because low conviction rates in India are often because
of poor investigations, improperly collected or no evidence, and
omissions of witness statements, and not because women are out to
get men.
 And even if some women misuse the law, that’s what the judiciary is
there for — to weed out the false cases and dismiss them with an
appropriate penalty! To quote the Gujarat High Court judgment again,
Justice J.B. Padriwala says: “Let it be stressed that the safeguards in
 the criminal justice system are in place to spot and scrutinize
fabricated or false marital complaints, and any person who institutes
untrue and malicious charges, can be made answerable in
accordance with the law.
 The misuse argument is also faulty in that it ignores how
disadvantaged women are even to use the marital rape law if it
exists, let alone misuse it. A lack of resources, access to legal help
and stigma all provide resistance to women actually achieving justice
under these laws, as can be seen from rape and domestic violence
laws.
 “It has long been time to jettison the notion of ‘implied consent’ in
marriage. The law must uphold the bodily autonomy of all women,
irrespective of their marital status.”
  non-consensual act of marital rape violates the trust and confidence
within a marriage and that marital rape is what has damaged the
institution of marriage.

 : Interestingly, the cultural argument that criminalizing marital rape

won’t work in India because women are illiterate, uneducated and
poor directly contradicts the argument that criminalization of marital
rape would lead to misuse. If women are not educated enough to
properly use the law, it follows that they would be just as unable to
misuse the law.
 The purported link between poverty, illiteracy and the state’s inability
to apply the concept of marital rape to the Indian context is absurd. This
view has shades of paternalism and class bias. Is the minister saying the
poor and uneducated are more likely than the rich to commit violence
on their spouses, and hence the state cannot take steps to criminalise
and prosecute this violence?
 Further, the appeal to social customs and values as well as religious
beliefs is a clear abdication of state responsibility. If we do have
customs and beliefs that legitimise the rape of a spouse, it is the
responsibility of the state to step in and crack down on these values, so
that our citizens can live a life free from violence. Our country has had
a history of religion justifying caste and gender based discrimination
and horrifying violence, and the role of the state is to step in and reform
society, not be a passive spectator to regressive social practices. A
helpless deference to religion and customs, especially when they
promote violence or discrimination, runs afoul of our constitutional
principles.
 Section 122 of the Indian Evidence Act prohibits disclosure of communications
during marriage in court unless one spouse is being prosecuted for a crime against the
other spouse.51 As such, since the Domestic Violence Act only provides civil
remedies for sexual violence perpetrated against wives, spousal communication may
be relevant to attaining appropriate remedies and yet, would be inadmissible.

Furthermore, the Hindu Marriage Act and the Domestic Violence Act give women a
recourse to remove themselves from a violent and dangerous situation, but neither
does anything to deter the violent behavior itself. Simply granting a divorce on the
basis of cruelty still provides the perpetrator with the freedom to marry another
woman and subject her to the same abuse.

The Court further elaborated that if divorce and judicial separation are not seen as
destroying the institution of marriage, the concept of marital rape certainly does not
have the potential of destroying the institution of marriage.60 Moreover, the High
Court of Gujarat, India has recently argued that the non-consensual act of marital rape
violates the trust and confidence within a marriage and the prevalence of marital rape
in India is what has damaged the institution of marriage.61 Secondly, the culture of
India is cited to say that most Indian women are not financially independent or literate
and thus would be unable to survive outside the framework of marriage.62 The State
is obligated under the Constitution as well as its international obligations to provide
institutions where women can access needed assistance in order to be able to survive
outside of the context of marriage

GENERAL

Imagine being an eighteen-year-old girl, meeting a stranger twice, and being

told that you are to get married to him. the dreams she had cultivated of care
and companionship are shattered on the very first night of the marriage when
she is subjected to verbal and sexual assault from the man that had vowed to
love and protect her just a few hours prior. Every night, she faces a new ordeal.
If she complains to the police, they rebuke her and tell her to be grateful that
her husband is coming home to her instead of visiting a brothel. And when she
tries to take her woes to the Supreme Court, they tell her that she is bringing a
personal claim, not a public concern and as such, they cannot change the law
for one person. This is the unfortunate reality for countless Indian women
living among the culture of arranged marriages and remaining legally
unprotected from the realities of marital rape.

The Indian society has always tried to shun the voice of social activists ,
NGO’S, countless Indian women who seek justice from our courts leaving
with no legal recourse and they are always showed their ways to address the
marital rape under Domestic Violence Act, 2005 which is in itself is
inadequate to address the marital rape as a crime.

Protection of Women from Domestic Violence Act, 2005 offers civil remedies
for crimes against women including marital rape It is absolutely unreasonable
to view marital rape as a civil wrong than as a criminal wrong. It is almost
like crushing a women’s right in order to force her to live with her rapist.