“When a stranger sexually abuses a woman, he doesn’t know her neither she knows him. Thus, he has not done it personally. But, when the same incident happens between a husband and wife, it becomes personal. They argue that the man knows her and he is also aware of her intimate feelings.” Does this sound be ultimate cruelty?
Yes, we are in 2021 and still, India remains in one of the 36 countries where marital rape is not an offense when a man rapes a woman as long as they are married. In India, domestic violence is an immutable problem, and it has only been aggravated in recent years. Approximately 70% of the women in India are subjected to domestic violence in their day-to-day life. Although several statures were enacted in criminal law to safeguard women from domestic violence, all those to a greater extent remain subtle.
The fact is, the law protects the criminal and jeopardizes the victims. This article advocates the constitutional validity of marital rape and the factors contributing to the increasing number of marital rapes.
The indemnity to marital rape:
Marital rape is such a personal abuse that it’s not mere fiction but prevails as a reality in the Indian Penal Code. One of the most haunting situations in the Indian legal system is that marital rape, it is a coercive act of forcing your spouse into sexual intercourse without proper consent, it is an unfair still not unusual way to discriminate and weaken the women’s community.
Most of the countries in the world had impeached marital rape and declared that rape is rape and therefore, it is a wrongful act. But what is the stigma that holds back India from striking out marital rape? 
Let’s look into the superpowers that paved the way to the multiplicity of marital rape.
Factors that contribute to the increasing number of marital rapes:
1.) Indian customs: Despite having numerous rape laws in our country, the patriarchal framework never go out of the trend that considers woman as a property of men after marriage. They refuse to treat married women with equal protection of laws that are enshrined by the Constitution of India. All these customs objectify women and assume that marriage is a license for a husband to forcefully rape his wife with improper consent. Society should understand that a woman has the power to control her body as does an unmarried woman.
2.) Does married women’s perpetual consent become implied?
The ideology that has been firmly embedded in our society is that once a woman is married, she surrenders never-ending, continuous sexual consent to her husband. However, it is mandatory to analyze that marriage between a man and a woman implies mutual consent of them to have sexual intercourse. Sec.375 of the Indian Penal Code 1860, explains rape with 6 different illustrations.
It also includes an exception to marital rape (i.e) a man having sexual intercourse with his wife, whose (wife) not less than 15yrs of age, does not amount to rape. This provision degrades and violates the rights of women. By detaching this provision, all women will be protected from abusive spouses and could save their lives from sexual harassment. The Lawmakers should realize that any law that screens marital rape should be struck down immediately. Nevertheless, the CEDAW (United Nations Declaration on the Elimination of Violence against Women) criminalized marital rape and ensures gender equality.
3.) Will women misapply any statute against marital rape? This factor is a mere myth prevailing in our society, that causes damage to the patriarchal system. It creates a threat among the men whether the ladies will falsely accuse their husbands in all possible directions.
This has been a common reason existing against various domestic violence acts in India including the Protection of Women Act, The Dowry Prohibition Act, and Sec.498A of IPC. Thereby, if women are educated properly, it follows that they never misuse any law. Thus, the Indian legal system establishes itself as an ignorant and unjust regime by giving quirky reasons to implement laws that empower women.
4.) Treating women as an “object”: Essentially, our society treats women as an object. They never consider the existence of a woman. A woman’s feelings, emotions, and consent are not a big deal for them. Some men may also assume women as a “sex tool”. All these baseless customs and traditions projects woman as a less powerful sacred soul due to the societal structure.
No woman is the property of her husband neither she is a sex tool. Rape is not only inhumane but rather a grave contravention of a person’s fundamental right to life and individual liberty. Consent and respect for women are indispensable.
5.) The “sexual urge” of men: It has been scientifically proven that the majority of men under the age of 60 frequently think about sex. And also, men require sexual pleasure more frequently than women. Due to all these biological effects, again a woman is subjected as a sex tool in the name of marriage. Hereby, this act of marital rape is safely shielded under the ideology of holiness and sacrosanctity of marriage.
Infringement of Constitutional Provisions:
- Violation of Article 14: 14 of the Indian Constitution elucidates that the state shall not deny equality before the law and equal protection of law to any person within the territory of India. Though the Constitution of India assures equality to all citizens, the Indian criminal law degrades female victims who have been subjected to sexual tortures by their husbands. Initially, when the Indian Penal Code was framed in the 1860s, a married woman was not considered a liberated legal entity.
- Rather she was treated as the property of her husband. Ladies were not given preference and they weren’t considered as an individual human beings. Therefore, all these norms indicate that anything done by the husband to his wife is legal. But who considers the woman’s dignity remains unanswered?
- Violation of Article 21: As per Art.21 of the Indian Constitution, “No person shall be denied of his right to life and personal liberty except according to the provisions enforced by the law”. It also ensures that every individual is entitled to the right to health, privacy, dignity, safe living conditions, etc.
- Right to live with human dignity: The right to live with human dignity is a unique provision among the other fundamental components. In the case Bodhisattwa Gautam Vs. Subhra Chakraborty, the court held that rape to a lesser extent is sexual abuse than the validation of hatred towards corrupting and abusing ladies. In respect to this matter, marital rape is an exception that infringes an individual to live with human dignity.
- Right to sexual privacy: The right to privacy is not listed under the Constitution of India. In the case Neera Mathur Vs. LIC, the Supreme court held that the right to privacy is fundamentally assured under Art.21. This includes any type of aggravated sexual damages that are entitled to claim the right to sexual protection and security. This provision safeguards the ladies who are coerced into sexual intercourse post marriage.
- Right to bodily self-determination: The ultimate goal of the right to bodily self-assurance is that every woman is entitled to personal liberty and decision-making. Unlike other decisions in life, the sexual relationships and decisions concerning it stand out, where a woman will have to make a wise decision. Thus, failure to communicate or repudiate the consent from the women for sexual intercourse even after marriage amounts to be a rape.
Rape is rape, irrespective of the marriage, age, or perspective. A woman who is raped by a stranger survives a horrifying and oppressing attack. A woman who is raped by her husband survives with a rapist. To date, no government has taken any initiative to declare marital rape as a criminal offense.
Nevertheless, as a way forward the CEDAW has criminalized marital rape. When they could declare marital rape as a crime, why can’t our government make such an outstanding decision? It is not that our government is incapable of making such decisions but our society is concreted by patriarchal culture. Therefore, it is time that our legislature should take cognizance to knock out all these societal pressures and take immediate action to criminalize marital rape and accomplish gender equality.
This article is written by D.ILAVENIL, a 3rd-year law student of B.C.A.LLB.(Hons.) from Dr. Ambedkar Law University, School of Excellence in Law, Chennai.
- Indian Constitutional Law, 8th edition, written by M.P. Jain, published by Lexis Nexis.
 Indian Constitutional Law, 8th edition, written by M.P. Jain, published by Lexis Nexis.