Marital Rape

By:

Archana Pandey

2ndYear BA LLB

Jamnalal Bajaj School of Legal Studies BanasthaliVidyapith Rajasthan

E-mail: 22archana.pandey@gmail.com

www.probono-india.in

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 Marital Rape

India is a country where there is a domination of males in the society. In Indian Culture,
husbands are considered as a GOD to the wife. She must have to do what her husband is saying
without saying any wrong words to him. It cannot be said that earlier women have no importance
in the family instead of it they are treated as Goddess and every family member respect her.
Meanwhile society has changed with the time gap not with the mindset but also the perspective
towards women. Many a time’s women are considered as a machine whose only work is to give
birth to the child, take care of the family and husband and be in the control of men. Although the
rights of women are also specified by the constitution but the root cause is that these are not
implemented at the ground level of the society. Women are getting exploited by many means like
in the form of dowry, domestic violence, sexual abuse, girl child birth, bad omen to the family.
One of this exploitation is “Marital Rape”.

The Rape is defined in the IPC under section 375 as an offence. Also in society it is also
considered as a bad, even though somewhere there is a mentally that it is the fault of that girl but
people are now considering men as guilty for the same. Marital Rape can be defined as an act of
sexual intercourse where there is a lack of a spouse’s consent for the same. Consent is the basic
element on which it is decided whether the cause of action is considered as an offence or a
normal act between two or more persons. Marital rape is criminalized in the statute but the
exception 2 of Section 375 of Indian Penal Code says that a sexual intercourse done by a man
with his own wife (if she is not below 17) is not a rape. At the same time it is clarifying that if a
man hasa-sexual intercourse with his wife below the age of 15 or below will be held liable for
rape irrespective of the fact that the act is done with or without the consent of the wife. Section
375 is a violation of Article 14 of the Indian Constitution which gives the Right to Equality
before the law.

Types of Marital Rape

 Force only rape: In this the husband did not batter her wife but he uses his immense
power that is needed to have a sexual intercourse.
 Obsessive Rape: In this the husband uses immense force in sexual assault which is
totally against the wife’s consent.

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  Non-Physical Sexual coercion: Instead of using any sort of physical power he tries to
coerce the woman by different acts so that she will be ready for sexual intercourse.

Causes of Marital Rape

 Domination: Men are always considered themselves as the head and always tried to
dominate women. They can’t bear any sort of offence against them from the side of the
women. They always take action to suppress the voice of women. For this the way they
find suitable is to have a sexual intercourse with their wife at any whenever they wants
and believe that they have superiority force to show their power. Actually it is a small
thinking of the men and the cheapest way by which they show their force.
 Egoistic behavior: Ego is the wrong trait of an individual which reflects the
opportunities and ambitions he wants to get in his life. A man has done marital rape when
he wants to satisfy his unwanted needs by imposing his power on the weaker wife. In this
intercourse the health of that wife either her physical or mental health gets affected.
 Illiteracy: Illiteracy is the main cause of the happening of many illegal and wrong acts.
People are living in earlier stereotypes which says that husband is everything, whosoever
raise voice against her husband is considered that she is questioning the work of GOD.
People also have no knowledge about the law. Even the women against whom that
wrongful act is committing has no knowledge whether that particular act is declared as
wrong by the statutes and what are those remedies which can she avail after the accused
held liable.
 Society: A man is a social animal so he must be a part of a society for hi overall
development. Every society has its social norms by which the people of that community
will be governed. Society makes some strict laws for women that if she left her husband’s
house, she is a bachelor in her whole life, if she get raped, if she is unable to give birth to
a baby boy, if she works against the conditions and norms of the society, then she will not
be accepted by the society.
 Sexual Dissonance between couples: Sometimes the women have her personal causes
includes menstruation cycles, mental misbalance, tension or having any other physical
injury due to which she denied for sexual intercourse. But the husband takes it on his ego

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 that he doesn’t want to lose his superiority and use of power on the women so he forcedly
causes an intercourse with his wife.

Legal Framework

There are so many case laws that are filed by the aggrieved parties in front of the court which
shows the level of exploitation a woman has to face during her whole life. Some of the cases
involved the concerned issue is:

Bishundayal V. State of Bihar1, in this case the victim who is a girl of 13 or 14 years of age
was sent to her elder sister to look after her. There she was get married and have a sexual
intercourse with the appellant, husband of her elder sister. The accused was held liable under
Section 376 of the Indian Penal Code.

RTI Foundation V. Union of India2, in this case the Central government submitted to Hon’ble
High Court of Delhi that criminalizing the marital rape will disturb the institution of the
marriage. And if we decided to remove Exception 2 from Section 375, it has no effect on the
concept of Rape. If marital rape is criminalized, it will be very difficult for the court to decide
which act will come in the ambit of wrongful sexual intercourse as the whole discretion will goin
the hands of that wife.

Independent Thought V. Union of India 3, in this case the Hon’ble Supreme Court of India on
11 October 2017 says that exception 2 of Section 375 relates to a girl below of 18 years of age
can be stuck down on following grounds:

 It is decided to be an arbitrary, whimsical and violates the rights of under Article 14, 15
and 21 of the Indian Constitution.
 It violates Article 14 of the Indian Constitution with a clause of discriminatory on the
basis of any ground
 It must be inconsistent with the rules, regulations and provisions of POCSO which should
be prevailed.

Conclusion
1
AIR 1981 SC 39
2
WP (C) No. 284/2015
3
WP (c) No. 382 of 2013

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India is a country of diversified culture and a wide variety of people having different cognitive
process, and mindset regarding particular clauses. In such a democratic country the only way to
satisfy the needs of its citizen and stands on the parameters of the society is Amendments.
Amendments are those weapon which meet with the needs of the society. Regarding today’s
society there is a need to criminalize marital rape. As it prima facie violates Article 14, 15 and 21
of the Indian Constitution, so to provide equality and reduce the clause of exploitation in the
society.

References

 Statutes

Indian Penal Code, 1860

 Books

Gaur K.D. Nagpur Indian Penal Code(Universal Law Publisher co. ltd 2011 edition)

 Websites

Varun Kumar ‘Does Section 375 of IPC include Marital Rape’ Legal Service India
www.legalservicesindia.com accessed 23 July 2020

Sandhya Raghavan ‘Marital Rape: What are its cause and implications?’(6 July
2017)www.thehealthsite.comaccessed on 25 July 2020