Nowadays, there has been a lot of discussion over the Criminalization of Marital Rape in India. How have the legal laws of marriage been formed over a decade in different countries? But India is still on the list of 32 countries that haven’t criminalised marital rape.

• Introduction 

“The reason behind rape is not ‘sexual desire’ but ‘dominance’ or rather ‘eroticized dominance”, according to Catherine Mackinnon. The most disputed component in showing beyond any doubt is of rape is ‘consent’. The nature of Consent is usually misunderstood by a man. “No means yes” man often thought while it means, “No means no”. Supposedly the man was unable to understand consent, then probably it is not rape because there is miscommunication and it lacked which incapacitated the man to understand. Remarkably, rape is an offence of sexual violence against women. And consent is the most vital part of it, a woman should let the frame the real meaning of ‘consent’ rather than a man. 

In India, the concept of consent is termed lame. Surprisingly, India is a country with a population of over 130 crores. Women have been raped and molested by their husbands for centuries. The truth is none have accepted that they are a victim. While some are being happy with the fact that they can help their husband by fulfilling his sexual desires even if she doesn’t give her consent to have a sexual relationship. But some choose to suffer over fighting about their rights.   

In my point of view sometimes women choose themselves to get hurt, even educated ones also doesn’t want to stand up for their rights. Sex is taboo in India. But forcing a sexual desire over a wife is normal? Think about it. Still, there is a huge population of those who don’t believe that there is something like marital rape. It is because India chooses to be one of 32 countries that still have not criminalized marital rape. 

• Section 375, IPC 

Indian Law has not mentioned and criminalized marital rape to date. Even it is the kind of rape that the Indian Penal Code also does not include. In a true sense Marital Rape is a rape that is not commonly discussed.  

IPC, Section 375 defines rape as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped or is of unsound mental health and in any case if she is under 18 years of age.” 

As per the 2013 annual report of the National Crimes Records Bureau (NCRB), in 2012 over 24, 923 cases of rape were reported across India, out of which, 98% of the cases had someone known to the victim as accused.

• Marital Rape 

But exception 2 section 375 of the IPC states that “a man’s sexual intercourse or sexual acts with his wife, the wife being not under the age of fifteen, is not rape.” Therefore, it can be said that marital rape is not yet recognized by law. We may say, “Marital rape is a crime established by the law, supported by the state and overlooked by society.”  

The term marital rape refers to unwanted intercourse by a man on his wife obtained by force, threat of force or physical violence or when she is unable to give consent. The words unwanted intercourse refers to all sorts of penetration (whether anal, vaginal or oral) perpetrated against her will or without her consent.  

Still, the question arises, Why there’s a marital rape loophole?

According to the point of view of society, India is following a patriarchal heirchary, and marriage is a social institution. That’s why some thought that marriage gives the right to the spouse to suppress and dominate others. While males don’t bother to even believe in consent. Consent is a prominent part of marital rape. Still, Marital rape is a sensitive topic and it is too difficult to measure it. Surprisingly in India as per the NCRB, most of the sexual violence occurs inside the four walls of the house and it is also believed to occur within families and many of them go unreported. The issue of marital rape is one example of violence against women where the victim suffers both physically and psychologically at the hands of somebody close to them. But unfortunately, marital rape is not recognised as a crime under Indian law.

According to the Indian government’s latest National Family Health Survey, about 30% of Indian women aged 18-49 reported having experienced spousal violence. In terms of sexual violence, the average Indian woman is 17 times more likely to face sexual violence from her husband than from anyone else, according to the survey of 724,115 women.

• The reason behind the marital rape 

In India, the measure of ignorance about marital rape is such that rape executed under the dedication and alliance to marry is contemplated rape only if the commitment was made with the purpose of mala fide only to have sex. While in true sense to have no purpose of keeping the commitment and not when in the wed-locks non-consensual intercourse is performed. 

Although many progressive communities feel that there is a need of criminalizing rape or marital rape. It will uplift the status of women’s needs and consent in society. Criminalizing marital rape is going to have a good impact on women. The male perspectives thought that they might be wrong. It is because Indian society is still in the shell of defining everything from a male’s perspective over women. Now, it is high time that we look at certain things that affect women from a female point of view.  

The main reason behind why marital rape has not been criminalized in India is the ‘confusion around consent. As marriage inferred usually the sexual relationship between the married couple. It is yet too hard to discover the man to understand when the woman gave her consent and when she did not. Over and above that, it is also hard to indicate if the man forced her due to the nature of their bond. It has been professed by Indian legislatures also that they would not like to wreckage the foundation of marriage by making marital rape a crime. It is because this would let many women accuse their husbands. At the same time, women might indeed be able to charge men easily. Although, the truth is also true that most women suffer marital rape but cannot speak about it openly.  

• Conclusion 

Marital rape is not only an offence but also a violation of a woman’s fundamental rights. For removing the stereotypical notions and patriarchal nature from society, we need to criminalize marital rape. There are too many protests going on for equal rights, but this battle is too close to that loophole, and explicitly make marital rape a crime although it can be seen as long overdue. Although some of the conservatives consider it as radical – even though it is destructive to traditional Indian values.

In India, the hard truth is that emerges from the increasing figure of sexual violence in such a large number and rising of crime against women takes place mainly in their respective homes. The present paper aims and focuses on examining some of the important and prominent socio-cultural and legal reasons that play a significant role in prohibiting the criminalisation of marital rape in India.

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