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Marital Rape and Its Status in the Indian Legal System

Advocate Bindu > Lawyers  > Marital Rape and Its Status in the Indian Legal System

Marital Rape and Its Status in the Indian Legal System

Woman suffering from marital rape

The issue and problem of Domestic violence has become very common and ingrained in India. This has increased rapidly in the recent years. With the studies and statistics of the NATIONAL CRIME RECORDS BUREAU ‘CRIME IN INDIA’ of 2019 shows how seventy percent of females are the victims of domestic violence in India. One such demonstration and exposition of this domestic violence is the MARITAL RAPE. Before defining Martial Rape, the term rape must be understood properly. Section 375 of the Indian Penal Code of 1860 defines rape.

Marital Rape is when a man forces his spouse into an undesirable intercourse by threat, physical violence, or when she is not ready to give her consent to such intercourse. The Concept of Marital Rape is a non – consensual violence committed by the husband against his wife. The spouses are sexually and physically abused in marital rape. Victims of marital rape will have to approach the finest and strongest lawyer to defend them. Adv. Bindu Dubey is one of the finest Domestic abuse lawyer in Mumbai who will strive hard to get justice to her clients who are victims of marital rape.

Marital rape is a very unfair and unjust act which cheapens and deteriorates the image of females and married women. Marital Rape has been criminalized in almost 100 countries. Very sadly India is not one of the 100 nations. Marital Rape has not yet been criminalized in India. Various laws have been implemented to protect women, but the non – criminalized marital rape wears away all these laws by reducing the dignity and respect of women.

As defined under Section 375 rape is all kinds of sexual assaults which involves non – consensual intercourse with a female. The de – criminalisation of Marital Rape in India emerges and comes out of the exception two as mentioned under Article 375. This gives exemption of the un – willing sexual intercourse between any husband and the wife above fifteen years old from the definition of rape. This eventually means that after marriage a wife is assumed to have given consent to the intercourse. This is also the definition of ‘implied consent’ that is it will be assumed or interpreted that the consent is willingly given by women as soon as they are married off.

This Marital Rape is in clear violation of Article 14 of the Indian constitution. Article 14 of the constitution of India states the Right to equality and the Indian penal code of 1860s comes from the British era where women were not even considered as legal entities. This violation of Article 14 shows two classes of females with respect to the marital nature. This gives immunity for the criminal actions done by men against their spouses. It can be seen how married women are victims to this while at the same time numerable laws are being enacted to protect unmarried women from the same crime.

This marital rape completely destroys the spirit and nature of Section 375 of the Indian Penal Code of 1860. Just allowing male to assume that women gave consent since she is married to him becomes completely contradictory to the purpose of the whole section. The idea should be rape as a whole is unlawful to both married and unmarried women. Adding to this, married women have it extra hard because they are financially dependent on their husbands and find it very hard to escape the abusive conditions.

The marital rape is also violation of Article 21 of the Indian constitution which states the ‘Right to Livelihood’, this includes the rights to privacy, dignity, protected living conditions, etc. In the case of ‘Karnataka Vs. Krishnappa’, the apex court stated that the sexual abuse is completely a very unjust act against women either married or unmarried. It was also mentioned in this judgement that sexual intercourse without consent will be considered as sexual and also physical abuse. In the case of ‘Justice Puttuswamy Vs. Union of India’ the apex court held that the right to privacy is a basic fundamental right for all citizens of India. This also includes ‘the right to make intimate decisions regarding their sexual activities.’ All these judgement show how women have all the rights and power to abstain themselves from sexual activities with respect to Article 21.

The UNITED NATIONS DECLARATION ON THE ELIMINATION OF VIOLENCE AGAINST WOMEN shows how violence against women is on the rise in our world today. They define violence committed against women as ‘gender – based violence’, ‘physical or sexual abuse’, ‘causing harm in private or public life.’ The United Nations Committee stated in 2013 that India must criminalize the Marital Rape. The J.S. Verma committee which was established after the nation – wide protests during December of 2012 also held the same that marital rape must be criminalized. This is very eventual as because after criminalizing this woman can be safer from their spouses.
The Indian legal system has now separated the laws for male and female, husband and wives, as previously it did not consider women as a legal entity. Therefore, now the protection of women is more important to the legal system.

Hence, it is highly mandatory for the legislature and Judiciary to consider this legal wrong of marital rape and consider it equal to the rape as defined under Section 375 of the Indian penal code of 1860. Victims of domestic abuse after marriage, marital rape should be given proper justice for the unjust situations that they have faced. Adv. Bindu Dubey is one of the finest Family lawyer in Mumbai who handles domestic abuse cases. She will analyse the case in depth and will use all her resources to aid the client with her utmost capacity in delivering justice to the wounded.

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