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ABSTRACT

What is Marital Rape?
Answering this question with some modesty Marital Rape is an act where the
husband uses his force to have sex with her wife, which is technically not
considered as a good act but in India the Marital Rape is still considered as a
legal act by which the husband can force their wife to have sex with them
legally. By considering these facts we can see that this is not a proper way to
do that act. Rape is considered as a heinous crime and just because it is done
by her husband that doesn’t mean that the act is correct and just because she
is married to his husband that doesn’t mean that her husband can control her
body, even after the marriage the women have got all rights of her own, and
also in case of marital rape the worst scenario will be the victim has to face
the rapist daily and live with all the expectations of him, she should not be
considered as sex object or some kind of child producing machine. Many
countries like Bhutan, Colombia, Kenya, U.S.A, and many countries have they a
strong law making Marital Rape as a criminal offense which India is badly in
need of it.

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INTRODUCTION

Before analyzing the concept of
marital rape first we need to understand the term “Rape” the term rape can be
defined as forcible sexual relations with a person against that person’s will1 by
this definition, we can understand that rape is where a person uses his force
to have sex without the consent of the victim. The same concept applies to
marital rape but the government fails to understand this and still did not make
any provisions to make a marital rape as a criminal offense. Indian Penal Code,
1860, describes “Rape” as follows Section
376 Punishment for rape, Whoever commits rape shall be punished with imprisonment of either
description for a term which shall not be less than seven years but which may
be for life or for a term which may extend to ten years and shall also be
liable to fine unless the women raped is his own wife and is not under twelve
years of age, in which cases, he shall be punished with imprisonment of either
description for a term which may extend to two years or with fine or with both:
Provided that the court may, for adequate and special reasons to be mentioned
in the judgment, impose a sentence of imprisonment for a term of less than
seven years2.
As the IPC clearly mentions that the act of rape committed by the husband
towards his wife will not be considered as “Rape” unless the wife is below the age
of 18, this act gives immunity to the rapist/husband from being prosecuted for
the act that he commits to her wife. The reason said by the government
regarding not criminalizing marital rape in the case held in Delhi high court
were the central government standing counsel contended, that India has its own
unique problems due to illiteracy, lack of financial empowerment of females,
mindset of society, vast diversity in the cultures of states which implement
criminal law and poverty3. In this situation, a
question arises whether India strictly follows the concept of “Right to
Equality”, given under our Indian constitution because the section 376 of IPC
discriminates women’s based on their marital status which is a clear-cut
violation of Article-14 of our
Indian constitution. Just because she is married that doesn’t mean that her
basic rights can be abused by her husband. This section classifies women into
two categories, namely women who are married and unmarried and it gives
protection to the married women under the age of 18 years and the rest has to
suffer. This section also violates Article-21
of our Indian constitution, Art 21 deals with personal liberty, the
personal liberty of a woman includes her right to live with human dignity and
this includes her right to choose what she wants to do with her body and her
right to consent to sexual intercourse. If
an act is being drafted it should consider the basic ingredients to fulfill the
act also an important fact needed to be noted that this act was enacted in the
year 1860 and at the time of enactment the culture and livelihood of the public
was so different and we still follow the act without making any changes, and
the people who are responsible to make amendments they failed to take action
and they believe that this is not a criminal offence and making change in this
will be against their traditions, and they make statements saying that most of
them are illiterate they fail to understand the concept, but it is the
responsibility of the government to make the change and as well as to educate
the public about marital rape.

HISTORY

The history of marital
rape is traced back to the year 1600 where Sir Matthew hale chief justice in
England he states that “The
husband cannot be guilty of a rape committed by himself upon his lawful wife,
for by their mutual consent and contract the wife hath given up herself in this
kind unto her husband, which she cannot retract”, Also considering the
time of that statement we can see that Women’s were not given importance in the
society, but now the time is being changed now we are at the stage where we
started to give equal importance to women’s in our society but the concept of
Marital Rape hasn’t changed ever since. Also in those days, they believed that
marriage is a form of contract where the husband will have all the rights over
his wife and they even considered their spouses only as an object to satisfy
their needs and not as a physical person to share their emotions to her. Thus
it resulted in a way to approach an inhuman act towards their spouses without
even realizing what they are committing. In India, many activists try to make
changes in marital rape law but still nothing has been changed, in 2013 Justice
Verma committee was formed after the incident of 2012 Delhi rape case. In that
committee report, he made strong opposition regarding marital rape and he
cities many of the foreign countries marital rape legal status and stressed
upon the removal of exemption of marital rape in IPC and also to criminalize marital
rape as a serious offense.

CONCEPT
OF MARITAL LAW IN INDIAN SOCIETY

         “Mother he raped me,” said the girl,
“But he’s your husband child.” said the mother.

This is a type of
conversation happens between a mother and daughter in our society, and they
have no solution to this issue. India is considered as a developing country and
at this stage, they failed to protect the basic right of the women in our
country. Our country is considered as a traditionally old and we have many
rituals and practices that we still do follow and one of the case is male
dominant society, even though we can say that all men and women are treated
equally before the eyes of the law but practically speaking still we are living
in a male dominant society. Many scholars argue that women were given powers
and they are also treated equally in our society, the point is correct but to
what extent they are given power, and are they being treated equally. The
answer to this question is NO. Even if they are in that position which would
below 25%. The point here I’m trying to impose here is only when the society
accepts women are equal to men only then changes can be made easily in our
society. And to accomplish it men should change their perspective towards the
women as considering them only to satisfy their wants and needs, they should be
treated with love and affection and not by some cruel means. The question
arises in this situation, whether our society is trying to protect the rapist
and make to suffer the victim just because she is married to him.  

1  https://legal-dictionary.thefreedictionary.com/rape.  

2  . section 376 ipc

3  http://www.livelaw.in/criminalising-marital-rape-may-destabilise-institution-marriage-centre-tells-delhi-hc/. 

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