Monday, May 29, 2023

Marital Rape in India – Not a Crime

India is one of 150 nations where the law does not recognise marital rape. Here’s everything you need to know about Marital Rape.

Even as India celebrates 75 years of independence, women in the country continue to be neglected and are not truly free and independent. Rape is an assault on women’s dignity and self-esteem. When it occurs within the four walls of a marital home, it reduces the woman to the status of an object used primarily for sexual gratification. 

In India, marriage is a sacred social institution, and the legal sanctions associated with their sexual relations are the most distinctive aspects of their marriage. On the other hand, marriage has now become a licence for marital rape in India.

Let’s get in-depth and understand why marital rape in India is not considered a crime.

Understanding Marital Rape

Marriage is a legally binding agreement between a man and a woman. Sexual relations between husband and wife are legal. Due to the legality of sex, the husband gains authority over the wife, which becomes the sole cause of marital rape. 

While the legal definition varies, marital rape is any unwanted sexual intercourse or penetration obtained through force, the threat of force, or when the wife cannot consent. Because of presumed matrimonial consent to cohabit, the husband cannot be held guilty of raping his wife. 

Despite the growing number of cases of marital rape in our country, no statute or law defines marital rape. Article 14 of the Indian Constitution mentions the right to equality, but women face discrimination.

Provisions Relating to Marital Rape

Historically, sexual intercourse between a husband and his wife was considered a right of spouses with or without consent. Section 375 of the IPC provides an exception providing immunity from marital rape. The provisions relating to marital rape are as below:

  • Section 375 defines rape and lists seven notions of consent that, if violated, constitute the crime of rape by a man.
  • However, Exception 2 to Section 375 exempts non-consensual sexual intercourse between a husband and a wife over 15. Still, the Supreme Court raised this age to 18 in Independent Thought v. UOI (2017).
  • According to the case of Independent Thought, “sexual intercourse by a man with his wife, the wife not being under the age of 18, is not rape.” As a result, courts consider this age (18 years) by making this case a precedent.

Arguments in Favour of Criminalising Marital Rape

  • It is argued that the “Protection of Women from Domestic Violence Act 2005” addresses issues concerning married couples. However, “sexual abuse” is mentioned but does not define “rape.”
  • Because the courts consider the Domestic Violence Act a civil law, the accused can avoid jail time.
  • Civil law, by definition, falls short of dealing adequately with heinous crimes such as rape, murder, etc.
  • Every woman has the right to sexual autonomy after marriage, and exception 2 of Section 375 violates Articles 14 and 21 of the Constitution.
  • Marital rape cases are also argued to be covered by Section 498A of the IPC (cruelty), but this section does not explicitly mention rape.

Arguments for Not Making Marital Rape a Crime

  • It is argued that the “Protection of Women from Domestic Violence Act 2005” addresses issues concerning married couples. As a result, there is no need to repeal the Section 375 exception.
  • If marital rape is criminalised, it is more likely to be abused, as individuals, jurists, and even men’s rights activists have pointed out.
  • The statistics show widespread abuse of 498A, the law governing dowry cases. According to some activists, 85% of dowry cases are false.

If you or someone you love has experienced this horrifying experience of marital rape, make no delay contacting an experienced criminal lawyer in Mumbai. Even though there are no laws for marital rape, an experienced lawyer can ensure that your rights are secured and that you get the justice you deserve.

How Do Criminal Lawyers Prove Marital Abuse?

Fighting a marital rape case is complicated, especially given the defendant and victim’s relationship. However, lawyers have the experience and resources to assist them in these cases. 

Domestic violence is frequently involved in marital rape, which the best criminal lawyer in Mumbai now has experience prosecuting. They may not need to rely solely on the testimony of the spouse-victim. Other evidence of domestic violence in the relationship can help the case, especially when explaining the dynamics of control and power in intimate relationships to a judge. 

Other crimes that occurred around or at the same time as the sexual assault, such as stalking, assault, battery, criminal threats, and strangulation, may also be charged by lawyers.

To Conclude

Marital rape in India is not entirely illegal, and it is, without a doubt, a severe form of female abuse that requires government intervention. Women raped by their husbands are more vulnerable to a wide range of attacks and frequently experience long-term physical and emotional problems. In India, positive legal changes for women are taking place. Still, more work is needed to achieve both legal and social changes, such as criminalising marital rape and changing attitudes toward women in marriage. 

Virat Agarwal
Virat Agarwal
Virat Agarwal is a highly skilled legal content writer with a passion for crafting compelling and informative articles that educate and engage her readers. With a strong and extensive experience in writing, he has the ability to simplify complex concepts into easy-to-understand language.


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