Author: Simran Chaudhary second year L.L.B (Hons.) student at Galgotias University
To the point
In India, Marriage is a sacrament. Husband and wife both have their duties defined in the Vedas, Upanishads, and Smritis which they have to fulfill. Traditionally, Sexual intercourse was regarded as a Right of spouses, even today also it is their right but it should be done with the Consent of both the Parties. Marital rape means sexual intercourse by husband with her wife without her consent. The husband forces her wife to do sexual intercourse with him by using threat, physical abuse. There is no Law which provides for the punishment for Marital rape. But, the definition of Rape has been given under Section 63 of Bharatiya Nyaya Sanhita 2023.The most important ingredient for Rape is that it is without the consent of the Party, then it will be a rape. It is an exception that sexual intercourse by a husband with his wife (18 years) then it will not be considered as Rape under Section 375 of IPC now section 63 of BNS. But it is given under Section 67 of the Bharatiya Nyaya Sanhita, 2023 that if the husband and wife are living separately or are under the decree of separation or there is no consent from the wife for sexual intercourse, still the husband do the sexual intercourse he will be punished for a term which will be between 2 to 7 years. The 42nd Law Commission report Suggested that the exception which is given under Section 375 of IPC now section 63 of BNS would not apply where the husband and wife were judicially separated. Then in 172nd Law Commission Report in 2012, the report says that such interference can affect the sanctity of the Institution of marriage. Now in judgements also, the Courts are also recognizing the Marital rape and that some action needs to be taken. Marital Rape has been criminalized in many Countries like Canada, New Zealand, Denmark, Norway and many other Countries too. In India it is still decriminalized, which needs to be changed. In the Protection of Women from Domestic Violence Act (PWDVA), 2005 provides remedy for Victims.
Legal Jargon
Assault- when someone threatens the other person with physical harm.
Consent- to agree to something
Rape- sexual intercourse by a man with women without her consent.
Abstract
In India marriage plays an important role in the lives of both the husband as well as the wife. Both have rights which should be protected. In the name of marriage, if a husband do sexual intercourse with his wife without her consent, forcefully then it can impact the wife badly. In the name of marriage, the right over their body should not be taken away. Such things can even destroy a marriage. At the time of the marriage, it is told to the women that now they have to listen to their husband and have to fulfill all the duties which are conferred on her without saying no. It is the society that have made the women this way but now the time is changing women now understand that only they have right over their body. If they do not give the consent for the sexual intercourse then the husband has to understand the same without abusing the wife or torturing her or by beating her. Marriage is not for torture but for peace, if they can’t find that what is the point of Marriage. Having sexual intercourse is a right for both husband as well as women, but having that without the consent just not seems right. Seeing Marriage just for having sexual intercourse is just not right.
Relation between Marital Law and the Constitution of India
There are fundamental rights which are given under the Constitution of India.
Article 14 and Article 21 are the rights which are being violated by not criminalizing the Marital Rape.
Case Laws
Harvinder Kaur vs. Harmendra Singh AIR 1984
In this case, the Delhi High court said that the Constitution of India could not intervene household matters as it would destroy the institution of Marriage. It is said by the court that in married life, Article 14 and 21 cannot interfere.
State of Maharashtra & Anr. Vs. Madhukar Narayan Mardikar AIR 1991 SC 207
In this case, the Supreme Court said that every woman has the right to privacy and no one can invade their privacy.
In 2012 when the Nirbhaya Case happened, the Justice Verma Committee suggested that Marital Rape should be Criminalized but it was neglected by the Government at that time.
Then in 2015, The RIT Foundation filed a Public Interest Litigation (PIL) in Delhi Hight Court by putting the fact that the exception 2 given under section 375 of IPC now Section 63 of BNS is in violation of the Article 14, 15, 19, and 21 of the Constitution.
Independent Thought vs. Union of India AIR 2017 SC 4904
In this case, it was contented that exception 2 of section 375 of IPC now section 63 of BNS is not only arbitrary but it is discriminatory too. The court agreed that Exception 2 is in violation of Article 14, 15 and 21 of the Constitution. Through this case the Supreme Court first time recognized the Marital Rape and declared that in marriage, the sexual intercourse with a wife age between 15 to 18 years will amount to Rape.
Karnataka High Court in 2022 said that “rape is rape, be it. By the husband”.
Even after so many Judgements marital rape is still decriminalized. India is not the only country, but there are others also. The Court through judgements have recognized Marital Law and had also gave important judgements regarding this.
Conclusion
Marital Rape should be criminalized in India as well. Women are the victims of Marital Rape. It is need of the time now. Women had already suffered enough, they got beaten by their husband, if don’t bring dowry then sometimes they even get killed by her in laws. Sexual abuse by a husband is wrong. People say that it is a matter between a husband and her wife, as husband has a right to do anything with his wife, but it is wrong, having sexual intercourse without her consent just not seem right. It’s her right over her body, not even Marriage can take that away from her. The People thinks that if Marital rape criminalized in India then it can affect the sanctity of marriage.
Frequently Asked Questions (FAQs)
What is Marital Rape?
Marital Rape means having sexual intercourse by husband with her wife without her consent.
In which Reports of Law Commission, there was a mention of Marital Rape?
In 42nd and 172nd Law Commission Report there was a mention of Marital Rape.
Is Marital Rape Criminalized in India?
No, Marital Rape is not criminalized in India.
