Marital Rape means a husband having sexual intercourse with his wife without her consent or by forcing and committing assault. There is no proper definition of marital rape in India for women who are 18 years and above since it is legal in India if done with a woman whose age is 18 years and above. There have been a lot of debates in India since past years regarding the removal of the exception to the definition of rape under section 375 of IPC but it never got criminalized since there is a thought prevailing in India that it would detoriate the married life of a couple. So, in India an ongoing married life is more important than woman’s right to life.

POSITION OF MARITAL RAPE IN INDIA: –

Section 375 of IPC exception says that sexual intercourse between a husband and wife and where the wife is not below 18 years is not considered as rape. According to this exception it is clear that woman of 18 years and below only have the right to life under article 21 and right to equality under article 14 of the Indian Constitution, the woman above 18 years of age do not have these fundamental rights. Whenever a woman above 18 years get married, she loses her right to life and equality.

Justice Chandrachund stated; “Does a woman or man lose their degree of sexual state autonomy after marriage. According to me “no”. He further stated that “the right to say no should be there after marriage also. Although indirectly he said marital rape to be illegal but it cannot be criminalized since they say it would destabilize the marriage and it would be an easy tool to harass the husbands. In a case Sree Kumar vs Pearly Karun[1]: A wife was subjected to sex without her consent when she went to live with her husband for 2 days since the settlement of separation procedures were giving. Kerala high court held that since she wasn’t living independently from her husband, she was liable sex with or without consent.

Justice Indu Malhotra noted on her judgement that any legislation which treats similarly situated persons unequally, or discriminate between persons on the basis of sex alone, is liable to struck down as being violative of Article 14(equality) and 15(prohibition of discrimination) of the constitution which form the pillars against the vice of arbitrariness and discrimination. She further said, “The time when wives were invisible to the law, and lived in the shadows of their husbands, has long since gone by”. A legislation that perpetuates such stereotypes in relationships and institutionalises discrimination is a clear violation of the fundamental rights guaranteed by Part III of the Constitution.

In Nimeshbhai Bharatbhai Desai vs State of Gujrat[2], the court of law examined “whether husband forcing his wife to indulge in oral sex would amount to rape punishable under section 376 of the IPC?” The views of the court were that the marital rape has not been criminalized in our country yet since the parliament fears that it may destabilize the institution of marriage. “An unprincipled wife may use it as a powerful tool or weapon to torment her husband by filling false and frivolous complaints against him.” But there are safeguards in the criminal justice system to spot and inspect fabricated or erroneous marital complaints, and any person who institutes erroneous and spiteful charges can be made answerable under law. The court discussed three kinds of marital rape to be generally prevalent in the society:

• Battering Rape: This type of marital rape where woman experience both physical and sexual violence in the relationship in many ways. In some occasions, the wife is battered during the sexual barbarity, or the rape which might follow a physically brutal episode where the husband wants to make up and pressurizes his wife to have sex against her will. In most of the cases, the victims fall under his stated category.

• Force only Rape: In this type of marital rape, the husband uses only the amount of force, required to pressurize the wives. In these cases, battering might not be an attribute, but woman who deny sexual intercourse usually have to face such assaults.

• Obsessive Rape: In obsessive rape, assaults include vicious torture ad perverse sexual acts and these are most only commonly fierce in form. This type has also been categorized as a sadistic rape.

In the landmark case of Vishaka vs State of Rajasthan[3] the Supreme Court extended his right of privacy in working environments also. The Supreme court held that, woman have fundamental right towards the freedom of sexual harassment at workplace. It also ensures gender equality among people and also to ensure that there should be no discrimination towards woman at their workplace. Further, along a similar line we can translate that there exists a right of privacy to go into a sexual relationship even inside a marriage. Subsequently by decriminalizing rape inside a marriage, the marital exception teaching damages the right of privacy of a wedded lady and is consequently is illegal.

In Bodhisattwa Guatam vs Subhra Chakraborty[4], court held that rape is to a lesser degree a sexual offence than a demonstration of hostility gone for corrupting and mortifying the ladies. In this manner the marital exception principle is violative of spouse’s entitlement to live with human dignity. Any law which damages ladies entitlement to live with dignity and gives spouse appropriate ton drive wife to have sexual intercourse without her will is along these lines unlawful.

CONCLUSION:

Either the laws in India should criminalize marital rape or it should add an exception to the article 14 and 21 stating as woman above 18 years of age are excluded and they are their husbands property after marriage not a ‘a citizen of India’. In India also the marital rape should be banned just by removing the exception to definition of rape under section 375 of IPC thereby assuring the citizens of India their fundamental rights otherwise woman will always remain as their husband’s property.

REFERENCES: –

• https://www.hindustantimes.com/india-news/marital-rape-good-ground-to-claim-divorce-says-kerala-high-court-101628251397471.html
• http://www.legalservicesindia.com/article/2369/Marital-Rape.html
• https://www.livelaw.in/tags/marital-rape
• https://www.helplinelaw.com/family-law/CLFM/the-current-legal-framework-on-marital-rape-in-india.html

[1] 1999 (2) ALT Cri 77

[2] 2018  SCC  Online Guj 732

[3] AIR 1997 SC 3011

[4] 1966 AIR 922, 1996 SCC (1) 490

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