“While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female”

– Justice Arjit Prasayat, Former Judge of the Supreme Court

Even after years of struggle for freedom, women crave for justice till now. Hundreds of laws are made to protect them, to keep them safe and to provide justice to them but these laws are of no use for a married woman who is being raped by her own husband. Even after so much success in every field women still face dishonor in this male dominated society. Although, rape is clearly defined as an offence and is punishable under Section 376 of Indian Penal Code, 1860 but Martial rape still struggles for a clear justification in Indian law.

Marital rape means any unwanted sexual acts by a spouse or ex-spouse that is committed without the other person’s consent. In India, martial rape is an offence to some extend and is punishable under Section 376 of Indian Penal Code, 1860 but only when wife is below the age of 15. In Indian marital rape is not criminalized, whereas, there are about 100 countries that criminalized marital rape. Due to the nature of relationship, it is assumed that woman has given her consent for sex, whereas, consent is the most important factor for rape cases and sexual intercourse.

TYPES OF MARITAL RAPE:

• Battering rape:

In these rapes, there is physical and sexual violence on women. In normal instance a husband turns physically violent and forces her wife to have sex against her will.

• Force rape:

Husbands use only the amount of force necessary to coerce their wives; battering may not be characteristic of these relationships. The assaults are typically after the woman has refused sexual intercourse.

• Obsessive rape:

Obsessive or sadistic rape is rape that involves torture or perverse sexual acts. This type of marital rape tends to be very violent and result in physical injuries.

LAWS RELATED TO MARITAL RAPE IN INDIA:

There is no specific law that defines marital rape clearly in India, but there are rape laws in our country that by not including martial rape as an offence, violates Article 14 and Article 21 of the constitution.

• Right to equality:

Article 14 of the Constitution states that “the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. Women are not considered as an independent legal identity and thus their identity are always merged with their husband. In exception 2 of Section 375 it does not punishes husband for marital rape when the wife is above the age of 15 but when the wife is below the age of 15 it punishes husband for the same. Thus, exception 2 of Section 375 of Indian penal code violated right of equality.

• Right to life:

Article 21 states that “person shall not to be deprived of his life or personal liberty except according procedure established by law”. Article 21 of the constitution provides for the right to life and personal liberty. It also includes the right to privacy, dignity, health, safe environment, etc. The supreme court in case of Suchita Srivastava v. Chandigarh Administration, 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 Constitution. Thus, any forced sexual desire does violate their privacy which is their fundamental right. Exception 2 not only violates the right to privacy but also the right to live a healthy and dignified life. The forced sexual intercourse by their husband spoils the wife’s physical and mental health.

CONCLUSION:

Till now many laws related to women are criminalized but marital rape is an exception to all of these. With such increase in cases of marital rape it has now become essential to criminalize it under Indian Penal Code. There are many unsaid voices that do not speak because they are financially dependent on their husbands and they have the fear that who will support their children if they speak against marital rape. Thus, for journey of criminalizing these marital rapes includes effort not only by the government or judiciary, rather it needs full cooperation from those for which these laws are made.

BIBLIOGRAPHY:

1. https://blog.ipleaders.in/marital-rape-india/
2. https://medium.com/the-%C3%B3pinion/marital-rape-in-india-is-india-ready-to-let-the-law-dive-into-the-privacy-of-marriage-by-making-baa92616f0fa
3. https://www.legalserviceindia.com/legal/article-5469-marital-rape-situational-analysis.html
4. https://www.mondaq.com/india/crime/691482/law-on-marital-rape-a-much-needed-reform-in-our-legal-system

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