Marital Rape And Domestic Violence: Legal Recognition And Challenges In India
- IJLLR Journal
- Sep 3
- 2 min read
Saakshi Jain, BALLB, St. Joseph’s College of Law Yukti Patel, BALLB, St. Joseph’s College of Law
ABSTRACT
In India, marriage is viewed as a sacred institution which is deeply rooted in culture and traditions. That are followed by the people for years. Despite the evolving legal landscape and modernization marriage is continued to be viewed as an essential foundation for family and social stability. Historically viewing sexual relationship within marriage between a husband and a wife has been viewed as an inherent right of the husband. This long-standing norm of the patriarchal society has led to normalising forceful sexual intercourse within marriages and dismissed consent particularly of the wife.
This normalization of sexual violence that has been deep rooted in people, and can be seen even today is also directly related to domestic violence. As both of these forms of abuse are deeply rooted in the same power dynamics, where the husband has choices over the wives’ body and her other life choices. Marital rape like other forms of domestic violence is subject to physical, emotional and psychological trauma of the victim. And yet although domestic violence is recognised and has laws that provide with civil remedies. marital rape is completely ignored and is not seen as an offence in India. It is still legally unrecognised. Even under section 63 of BNS (375 of IPC) clearly defines rape but leaves one exception very clearly that says “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape” this provision reinforces the belief that marriage grants unconditional sexual access to a women’s body.
Even in cases where marital rape exists with other forms of domestic violence. The victims face numerous barriers in seeking legal help. Like the absence of criminal recognition of marital rape, it forces to seek alternative remedies like in Women from Domestic Violence Act (PWDVA), 2005 or in section 86 of BNS (498A of IPC) both of which provide limited civil and criminal relief. Similarly evidentiary challenges make it very difficult for the victims to prove lack of consent as most of these incidents happen in the privacy of their home. And the burden of proof lies on the victim. Further the deep-rooted social stigma, patriarchal conditioning etc, often discourage women from coming forward, fearing retaliation and family pressure and also because various of these victims are financially dependent on their husbands. But the most important point being various law authorities frequently refuse to register complaints, reinforcing the misconception that forced sex within marriage is a private matter and not violation of the body and fundamental rights of a women.
