Behind The Doors, Legal Battle Against Marital Rape

Bala Nivetha S, School of Law, Sastra University

ABSTARCT:

Marital rape, also known as Spousal rape refers to non-consensual sexual intercourse done by the perpetrator to their spouse (victim). It involves the use of abusive language, physical force, and threats, to involve in sexual activity. There are more than 100 countries that criminalized marital rape whereas India is one among the few which didn’t criminalize it yet. In India, there is no separate provision relating to marital rape whereas Sec 375 of IPC provides an exceptional clause, which states that “sexual intercourse by a man with his wife and wife not being under 15 years of age, is not a rape”. Criminalizing marital rape in India has been facing lots of challenges since it is done within the institution of marriage and claiming it to be sacred and it is considered to provide implied consent for sexual intercourse. However, the Supreme Court and Law Commission of India asserts to criminalize marital rape and struck down the exceptional clause of Sec 375 of IPC1. Marital rape not only constitutes a crime but also infringes upon the fundamental rights of married women under Articles 14, 15, 19, and 21 of the Constitution. Although there is protection enshrined in our constitution for women facing domestic violence, assaults, and sexual offenses. The sexual act without the consent of the woman (rape) under the institution of marriage is not properly aligned in the legal frame, as per the current law it is presumed that the wife gives her perpetual consent to sexual intercourse by entering into the marital relations. The National Family Health Survey2 found that between 2019-21, 32% of married women experienced physical, sexual, or emotional violence by their current husbands. However, there is the occurrence of marital rape beyond this report major people who have been a victim of marital rape is not ready to voice their opinion due to many factors. Thus, this has not been seen as a serious issue in front of the media or the general public. However, the denied right should be reimbursed and safeguarded. This paper devolves into the legal framework for marital rape, and how existing provisions support it. In this discussion, we are also going to view the historic context of marital rape in India, and the judicial activism in this area, the major criticism and challenges faced by the group who argue for the criminalization of marital rape.