An Unheard Cry Behind Locked Doors And Its Need To Legally breakout

[Vol 3/Issue 1/ April 2017]

[ISSN 2394-9295]

Dyuti Vij Kaveri Malhotra
B.B.A. LL.B (H)/strong> B.B.A. LL.B (H)
7th Semester 7th Semester
Amity Law School, Noida Amity Law School, Noida
Email Id: Email Id:


Rape is perceived as an infringement of the bodily integrity and honour of a woman as it is a ravishment of a woman without her consent, fear or fraud, against her will. It is a violation of privacy with violence and is a social and mental outrage. Marital rape is a concept that causes mental anguish to the wife and the despairing reality is that she has suffered it silently under the tag of a sacrosanct marriage. It is form of rape which is hidden under the shield of marital relation. On one hand, the Hindu marriage laws embrace the wife of a husband and the mother of the children as a goddess who is worshiped and as a dharampatni and ardhangini, respectively and the daughter as Lakshmi. And on the other hand, the same dharampatni is being sexually raped by her own husband which violates the sanctity of this divine relationship which just shows his double standards. A man feels on being wedded to a woman he attains a license without an expiry date to have sexual intercourse be it consensual or forceful with his own soulmate. These days everyone is focused on protecting themselves from the outside perpetrators but fail to identify the perpetrators who exist within the four walls of the house and results in invasion of the foundation of trust, faith and belief in the marriage. The Constitution of India is a guiding light which gives direction to all the laws. The doctrine of equality is demarcated as the heart of our Constitution in Article 14, 15 and 21. Still no heed has been paid to comply with the basic essence of these articles which can be achieved through introducing separate marital rape legislation. The paper further unveils the evolution, types along with highlighting the need to criminalize marital rape in order to break free of the patriarchal society and move towards an egalitarian society.

Key words: Marital Rape, Conjugal Rape, Preamble, Marriage, Sexual Violence


The term ‘raptus’ has given birth to the barbaric and gruesome offence called rape which basically means the act of damaging or destroying property by one man of the other. In modern sense, property relates to women who are the depositaries of such vicious offence. To emphasize, in today’s era women are treated as sheer property of men. It is imperative to know that rape is not only a crime against the victim i.e. the woman but it is also a crime against the entire society. This most hatred crime abolishes the entire psychology of the victim and pushes her into unfathomable and deep emotional crises which cannot be felt by any other person. The Supreme Court of India has aptly described rape as a ‘deathless shame and the gravest crime against human dignity’.[1]

The Supreme Court asserted in case of State of Karnataka v. Puttaraja[2] that a rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of woman i.e. her dignity, clarity, honour and reputation. In India, the concept of marital rape exists only de facto and not de jure.

Probably, no other people have endeavored to idealize the institution of marriage as the Hindus have done. In India, marriage is perceived to be an implied sexual contract in perpetuity. Women are seen as mere property and marriage explicitly reinstates the ownership rights of a man over his wife. Traditionally, women’s role has been seen to be submissive, docile, innocent, dutiful, compliant and that of a homemaker. Sex has been treated as an obligation which the wives always have to comply with. This deprives the women of her integrity, control over her own body and sexuality. According to Hinduism, marital relation is deemed to be a heavenly union and also is of religious, spiritual character and not that of a contractual character. The husband is known as bhartri, because he is the support system and protector of his wife but in reality he is abusing his role and violating his wife. In our society, there is a taboo that a wife always has to submit herself to the sexual pleasures of her husband without any resistance, as it is seen as her wifely and conjugal duty. In Mango Ram’s case[3], the Court held “Submission of body under the fear or terror cannot be construed as a consented sexual act, consent for the purpose of Section 375 requires voluntary participation.” If women are to wrest control of their lives, they have to have the right to say no to their husbands without being socially penalized for it.[4] It is a form of rape that is hidden under the shield/iron curtain of marital relations.

Rape is the genus and marital rape is its species. These two terms are complete antonyms of each other and can be separated under two heads

MARITAL RAPE- A Pendulum which shifts from being a crime to a

conjugal right

Marriage(Pious)  AND Sinful(remorseless)

Marriage is holy, indissoluble and perpetual unison of two individuals in the most pious form. This divine union has, from time immemorial been treated as a sanskaram(sacrament) which is an essential ceremony holding an indispensable object to constitute a perfect purification of a hindu.

Rape is an act of violence, plunder, abuse, violation of one’s body which leaves an everlasting impression. Marriage imbeds the functionality of trust, faith, belief and happiness between two individuals and rape, on the other hand diminishes the confidence in oneself, instills fear and handicaps to trust humanity. Therefore, one destroys fear and builds confidence while the other succumbs to fear respectively.

Putting these two concepts together, whatever the institution of marriage builds, rape destructs it to the very core. Hence, they are oxymoron’s of each other. Marital rape is demarcated as when a husband forcefully or threatfully enforces intercourse on his wife against her will and consent. “Consent” in rape covers state of mind from actual desire to reluctant acquiescence; it is no longer necessary in proving rape to establish that intercourse took place as a result of fear, fraud or fork, but merely that it occurred without the woman’s consent.[5] It implies a state where the wife is physically and sexually abused by her own husband without her approval. Husband is the person in whom she invests herself emotionally, physically and mentally for an infinity. As per the UN Population Fund, more than two-thirds of married women in India, aged between 15 to 49, have been beaten, or forced to provide sex. In 2011, the International Men and Gender Equality Survey revealed that one in five has forced their wives or partner to have sex. Other statistical researches have also revealed that 9 to 15% of married women are subjected to rape by their husbands.[6] This non-consensual conduct by her own husband violates and breaks every bone of all the trust and faith which constitutes the foundation of a holy union in a husband. A marriage is rightly on the same footing as a barter system as it includes exchange of promises and vows, one major and primarily being ‘sex’. Marital rape is actually an offence which occurs within the closed room of a matrimonial home that diminishes a wife’s status to that of an object just used for sexual fulfillment.

Derivation of concept of Conjugal Rape

Marital rape can be traced back to the assertions made by Sir Mathew Hale, Chief Justice in England during 1600’s:

“The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and the contract the wife hath given up herself in this kind unto her husband, which she cannot retract.[7]

According to Sir Matthew Hale a wife does not have a say in the sexual relationship which she shares with her husband. She is supposed to blindly accommodate his needs which also includes his sexual needs. Even if it makes her uncomfortable she has to submit herself to her husband without complaining. This theory of irrevocable consent has emerged from the very vows that are exchanged between the husband and the wife. These vows represent a sacrosanct in which there is an underlying condition that a wife is at the beck and call of the husband’s sexual needs.

On the contrary, in the highly famous case of R v R, both the court of appeal and the house of lords upheld the rape conviction of the defendant on the ground that marital rape exemption did not exist in English Law The presiding judge Lord Keith supported the modernistic view as portrayed in his judgment in which he said that ‘Marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be subservient chattel of the husband.[8] As a result of this declaration England and Wales amended the status of married women. The judgment of the European Commission of Human Rights in C.R. v. UK[9] supported this modernistic view which concluded that a rapist remains a rapist regardless of the relationship between him and the victim. Importantly, this judgment complied with the fundamental objects of Convention on Human Rights which basically focuses on human rights, dignity and freedom. Therefore, statutory recognition of this was also given in the Criminal Justice and Public Order Act,1994. Following this in the Canadian Supreme Court decision in R. v. J.A where Chief Justice McLachlin highlighted that the relationship between the accused and the complainant ‘does not change the nature of inquiry into the matter of consent for the sexual activity.’[10]After the changes in Common Law many countries took a step forward and criminalized marital rape which shows the journey from a country having not a humongous list of marital rape crime like the Soviet Union (1922) to a country having the maximum marital rape crime rate like the United States of America which started in the mid-1970s and by 1993 marital rape was a crime in all 50 states. The list is never ending as maximum number of countries have embraced the importance of a woman as a wife who in a marriage should not play a role of an unequal person rather must stand at an equal stature like Poland, Germany, Bhutan, Austria, Canada, South Africa, Australia, etc. India being a developing country still has not accepted the fact that marital rape is a crime and thus, it must be punished as it is an injustice against the State and not just an individual woman in contrast to the countries which are under developed.


The following two kinds of marital rape are identified the prevalent society:

1. Battering rape:

In battering rape, women is subject to not only physical but also sexual violence in the relationship. The term battering refers to striking of hard blows on any part of the body which usually is the vaginal area.

Sexual Violence Physical Violence


Sexual Violence includes when the husband forces his wife to have sex against the will and consent.

The latter includes injuries to the vaginal and anal areas which result in miscarriage, stillbirths, bladder infections, infertility, laceration, soreness, bruising, torn muscles, fatigue and vomiting. Other grievous physical injuries include broken bones, black eyes, bloody noses, knife wounds during sexual violence. As understood, physical and sexual violence go hand in hand.

2. Force-only rape:

Under this kind of marital rape husbands use the substantial amount of force required to force themselves on their wives when the wife has refused sexual intercourse. This level of forceful captivity used by the husband leaves the wife with no escape and thus is left to succumb to him.

Paralyzed scenario of Matrimonial laws in India

Though India has advanced in every possible area, one of the most humiliating acts which is marital rape is still not considered as an offence in India. Section 375 of IPC explicitly deals with one of the most heinous sexual crime known as rape, our Indian legislators have even widened the ambit of the act ‘rape’ by bringing in the Criminal (Amendment) Act, 2013. Despite of uncountable amendments and various law commissions the legislators have certainly failed to incorporate marital rape as an exclusive offence. Section 375 of IPC describes detailed circumstances which constitutes the atrocious, forceful, non-consensual, unwilling, coercive and disapproved sexual intercourse upon a woman’s frame. However, it provides an overt exception that is a husband would be punished for his sinful act of forceful sexual intercourse with his own wife who is between the age group of 12 to 15 years of age. This shows that there is no protection for the wife who is above the age of 15 years and is a victim of rape in her own marriage. Thus, the law is discriminatory on the age factor for wives who are facing the same physical and mental trauma. The variation and discrimination has not only been confined in the definition u/s 375 of IPC but also when it states the punishment of the act u/s 376. The punishment u/s 376 is not less than 7 years but may extend to a term exceeding upto 10 years or life imprisonment and also shall be liable to fine but the exception provides that if the husband rapes his own wife (12-15 years of age) in such a case he will only be punished with imprisonment not exceeding 2 years with fine or both. This shows that the punishment drastically varies not only on the ground of age factor but also because of the familiarity component. Section 375(6) gives an absolute protection to an unmarried girl who is up till 18 years of age to be a victim of rape even if the act of sexual intercourse has been done with her consent but on the other hand there is an utter absence of protection for a married girl who is above 15 years of age and is subject to non-consensual sexual intercourse. Thus, it can be clearly seen that the law which is considered as the guardian of the victimized is scarce and unsatisfactory to protect the interests of those afflicted with the ill of marital rape.

The 42nd Law Commission Report suggested that marital rape should not be covered under Section 375 but a separate section should define it along with its punishment. [11]

The 172nd Law Commission Report which was passed in the year March 2000 suggested that the term rape should be substituted by the term sexual assault as it is much wider than rape. In the illumination of Sakshi v. Union of India and Others[12], it was held that ‘sexual assault on any part of the body should be construed as rape. They also suggested that the exception provided to a husband should be removed and forceful sexual intercourse by a husband on his wife of any age should be punished as any other form of rape.




The Preamble Article 14 Article 21

The Constitution of a country is the text that reflects the soul of the nation. The Indian Constitution organizes and controls power, ensures human rights, balances the competing claims of social and individual interests, mirrors the cultures and experiences of the country and operates as a vehicle for national progress and unity.[13]

As per the Indian constitution every section of any law which is passed in the country must and has to be in conformation with the principles, theory, ideas and the essence enshrined in the constitution. Any law or part of the law if fails to meet the guidelines of the constitution would be considered ultra vires and is guilty of being struck down by the court.

The Preamble

The Preamble to the Constitution is not a mere flourish of words, but was an ideal set up for practices and observance as a matter of law through Constitutional mechanism.[14] The preamble of Indian constitution poses as a lifeline for all articles which are embedded in the constitution. The preamble gives birth to key components mentioned the constitution such as Equality and Social Justice which are 2 sides of the same coin. The preamble is like the mother of article 14 and 21 and its compliance is uncompromising, inflexible and unbending facets of the preamble.

Right to Equality

Article 14 Article 15

Article 14 talks about the responsibility of the state to make sure that no person is denied equality before law or equal protection of the laws within the territory of India.

The doctrine of equality before law goes hand in hand with the concept of rule of law which constitutes as the basic structure of the constitution. This doctrine of equality is the very essence of democracy.[15] This doctrine does not only talk about equality before law but also enshrines the real and substantive equality which strikes at the inequalities arising on account of vast social and economic differentiation as is thus consequently an essential ingredient of social and economic justice.[16]

But the exception given to a husband under Section 375 of the Indian Penal Code, 1860 to rape his own wife after the age of 15 without him being punished is unreasonable. A woman who has been subject to rape should not be classified on the basis of being married or not. A rape is a rape whether it has been committed by a stranger or a husband as the turmoil undergone by the woman does not change with reference to the identity of her rapist. This classification on the basis of relationship between the victim and the rapist is arbitrary. To achieve an egalitarian society it is of utmost importance to remove the exception which is inserted in Section 375 of IPC as it is not in consonance with the rule of reasonable classification embedded in Article 14.

Article 15(1) mandates that the state shall not discriminate against any citizen of India on grounds of religion, race, caste, sex, place of birth or any of them. Article 15 acts as an aid to realize the rule of equality which has been echoed in article 14 of the constitution. Article 15(1) is the specific application of article 14 as it is an extension of article 14. Article 15(3) plays an imperative role as it provides that the state has the magic wand to make any special provision for women and children. Article 15(3) is an exception to the basic rule embedded in clause (1) and (2) of Article 15. Many laws have been passed in favor of empowering women such as

  • The Dowry Prohibition Act, 1961
  • Protection of Women from Domestic Violence Act, 2005
  • The Sexual Harassment of Women at Workplace (PREVENTION, PROHIBITION and REDRESSAL) Act, 2013
  • National Commission for Women Act, 1990

Many sections of various acts have provided special provisions for women like Section 437 of Cr.P.C which provides for bail in non-bailable offences to persons under 16 years of age or a woman or sick or infirm person. Similarly, the Hindu Marriage Act’s section 13(2)(iv) permits a woman to present a petition for dissolution of marriage by a decree of divorce on the ground that her marriage whether consummated or not was solemnized before she attained the age of 15 years and she has repudiated the marriage before she has attained the age of 18 years. These provision does not give similar right to a man/husband respectively.[17]

In reference to these provisions and many more, if the state can make women specific laws for their protection and empowerment then, why can’t marital rape be designed as a separate section with specific punishment that is not discriminatory, unfair, biased, arbitrary and whimsical on the basis of age and relationship.

Right to life and liberty

Article 21 of the Indian Constitution instills in it the right to life and personal liberty which not only includes mere physical existence but living with human dignity. Declaring that the right to life includes the “finer graces of human civilization”, the Supreme Court in P.Nalla Thampy Terah(Dr.) v. Union of India, virtually rendered this fundamental right a repository of various human rights. Post the case of Maneka Gandhi v. Union of India [18] Article 21 has become the source of all forms of rights which aim to protect human life and liberty.

In addition to these landmark judgments, the Supreme Court has also firmly asserted and opined in a catena of cases that the offence of rape violates the right to life and the right to live with human dignity of the victim of crime of rape.[19] It is a crime against human rights and is also violative of the victim’s most cherished of the fundamental rights, mainly right to life and personal liberty enshrined under Article 21 of the Constitution of India and in its noble Preamble.[20] Right to Sexual Privacy has also been couched under this article after being recognized in a series of cases. It is submitted that the doctrine of marital exemption of rape violates a married woman’s right to sexual privacy by forcing her to sexually oblige against her wishes. Every woman is entitled to sexual privacy and is not open for each and every one to violate it as per his sexual cravings. A woman is the sole decider of her body and her consent is mandatory. It is every woman’s personal choice to whom she wants to be intimate with.

Marital rape directly infringes upon the right of a woman not only to live with dignity but also violates the right to sexual privacy, right to bodily self-determination and deprivation of right to good health. Thus, the exception in Sec. 375 of the Code is in clear violation of Article 21 of the Constitution.

International Obligations

The urge to criminalize marital rape will find support in various international laws like:

Convention on the Elimination of All forms of Discrimination Against Women (CEDAW) clarifies in the general recommendations 12 and 19 that the Convention should include violence against women. CEDAW is described as an international bill of rights for protection of women adopted in 1979 by the UN General Assembly. It states what all acts constitutes as discrimination against women and also sets an outline for national action to eradicate such discrimination. It provides the foundation for integration of equality between men and women by making sure that women have equal access and opportunities in political, social and public life. The member States come together to target and take all necessary measures so that women can enjoy their human rights and fundamental freedom.

The Declaration on the Elimination of Violence Against Women was adopted in 1993 by the UN General Assembly. It covers 3 types of violence- physical, sexual and psychological which also includes workplace and at home. This declaration puts a detailed explicit obligation on member states to apply with due diligence to investigate, prevent and punish acts of any violence against women. Article 2 of the Declaration of the Elimination of Violence against Women includes marital rape explicitly in the definition of violence against women.

All around the world, majority of the member countries have already complied with the standards as laid down in various international norms. But India being an original member of the United Nations still has not fulfilled the required recommendations provided by them.

Causes of not criminalizing Spousal Rape

  1. Lack of education:

Looking at the situation of India, the fundamental influences for non-appliance of such indispensable and quintessential laws are majorly the web of poverty which results in a vicious cycle of illiteracy and uneducation. This illiteracy results in them being unaware of-

  • Their own rights such as right to speak and stand against the wrong,
  • The right to lead a dignified life which includes the right to say ‘no’ to anyone for any kind of forceful coercive activity against her well-being be it her very ‘own husband’ who attempts to do the same,
  • The right to be economically and socially empowered,
  • The right to be legally aware so that to seek justice in all unjust circumstances.

“For many years, I didn’t even know what domestic violence meant. I would just take the anger, the shouting, and the beatings, We are taught from before marriage that sex is a duty you have to perform for your husband.”

It will be surprising for some that these words came out from a 39-year-old marital rape survivor, named Bhagwati. In a report published by the United Nations, it was found that 69% of Indian women believe that occasional violence was justified, for instance when a meal hasn’t been prepared in time or when sex has been refused. This is the sheer reality that in such a civilized society where there are so many women who grow up being fed that sex to her husband is a duty which casts upon her since the day of the wedding and saying no to the same is not acceptable.

This poverty leads to:

Unawareness Illiteracy

As a result of being wrapped and draped in such a vicious cycle, the women are unable to find any way to exit and so have to oblige to the matrimonial compulsions within the four walls majorly obeying to the sexual favours forcefully asked by their husbands. Hence, this leads to the undeniable sad fact that they are unable to raise their voice to such wrong.

  1. Male dominance:

It is a gloomy, miserable, and dark reality that women everywhere have to face the suppression of men. India has been and is correctly and rightly witnessed as a patriarchal society. Though India has gained its independence in 1947 and recognised ‘equality’ as a basic feature of the Preamble but in this aspect only men have achieved full independence and superiority. It’s the women who have still not conquered independence and are under the threshold of the men. This male dominance is reinforced by prostitution and pornography, in which women are degraded and treated in subservient ways. Men who rape tend to believe more strongly in myths about rape, and they are more likely to engage in fantasies about coercive sex.


“Can an apple farmer be charged for plucking a fruit from his plantation?” he asked.  Mungure said even if a husband is forcing himself on probably his sick wife, he still does not see it as rape. “A wife is obliged to look after her husband’s needs in and out of the bedroom”

According to basic ideology of a man, his wife is bound to serve him for eternity in all ‘his’ phases of life. Men feel that being the breadwinner of the family they are only entitled to work and get their demands fulfilled. They think that the wife should be at home, taking care of the children and the house and when he comes back home from work he expects that there should be a prepared meal and after he is done with the food, the wife is only expected to clear up and lastly she must completely surrender herself to his sexual needs even if she is not willing to do so. This portrays that the husband demands a superior position and sees the wife as a machine who is to be regulated by the husband only.

This illustrates that women are at the complete disposal of men where they have to be fully dependent on the husband financially and socially since he is the sole earner of the family. Due to this the husband looks, dominates and uses the wife merely as a property that he can seize as per his own whims and fancies. This can also be seen why the term rape is derived from the word ‘raptus’. This principle of ‘controlling the wife as a husband’s property’ can also be interpreted from Section 497 of the IPC i.e Adultery. If we see historically, the notion of rape came into force to protect male interests in women, akin to property rights and not for empowering women. In 1707, English Lord Chief Justice John Holt expressed that the if a man has sexual relations with another’s wife, it would be regarded as the maximum invasion of property.  Due to the particular mindset that committing of rape and adultery infringed the rights of husband hence, many cultures witnessed an amalgamation between rape and adultery. Rape as a crime was constructed as a property crime against a father or husband not as a crime against the woman’s right to self-determination. This proves that marriage is that ceremony where the husband is handed over by the power of irrevocable consent to have sexual intercourse with his own wife at any point of time as he would demand. This consent commences with the completion of the 7th phera at the time of saptpadi until the dissolution of marriage.

  1. Societal beliefs:

It is not only the men who support the idea of conjugal duty of women to serve themselves as a property to have sex without consent. It is also braced by the members of the family and the society who are prejudiced by the customs, values, beliefs and their mindset. They feel that it is mandatory for a woman to submit herself to her soulmate as and when he wishes to. This submission includes physical as well as social involvement by her as and when commanded by the husband. Thus, the inkling of the right to demand sex by the husband is his conjugal right which is accurately embraced by the member of the family as well. The societal stigma of women is always attached to her husband as she is deemed to be pati-vratastri means pure, faithful and obliging women.

Such assertions made by the family members forces the women not to raise her voice as it would wear and tear the marriage which would result in destruction of the family structure.

  1. Economic Dependence:

Another main stimulus because of which the society has such strong notions is that the wives are economically weak and hence, are dependent on the husbands. Since the wife is said to be the homemaker and the husband is the earner, the issue of economic dependence serves as a main reason as to why the family and society forbids the women to speak up and bear marital rape.

  1. Political Influence:

One of the contributing reasons for non-criminalization of marital rape is the view of India’s leaders who argue that interfering with the sexual intercourse between a husband and wife would be at odds with the culture of the country. That group includes Maneka Gandhi, union minister for women and child development, Haribhai Parathibhai Chaudhary, who opined that such a concept has no application in a country like India where marriage is a sacrosanct ceremony.

  1. Other reasons:

There are many other reasons which throw in towards the pre-fixed notion of not criminalizing marital rape in India. They are as follows:

  • Misuse of law: Many are of this opinion that if marital rape is criminalized then, a lot of women would seek this opportunity and unreasonably use this to trap their innocent husbands. There are many laws which are already abhorrently being misused such as laws relating to dowry, cruelty, rape, domestic violence and many more. If a proper law is passed for criminalizing marital rape it would just add to the list of the millions of laws which have already been misused and are being misused every day. There are many cases which portray the harsh reality that even though many laws have been framed for the empowerment of women still, they file false cases when they were angry or dissatisfied with their marital life and use such insightful laws to their advantage. Since claims regarding to dowry, domestic violence, rape etc are taken very seriously, hence, even it is a false case and there is no fault of the men, still, they would be gravely punished for an offence which they haven’t even committed. This is why there is so much of resistance in formulating laws regarding this issue.
  • Another compelling reason to not criminalize marital rape is that it is very difficult to prove. It’s said that it is very hard to register sexual assault, sexual abuse against one’s husband and if the cases regarding marital rape come into focus it will all the more be harder. It would be extremely difficult to examine whether the consent is obtained or not in marital rape. Thus, it makes it impossible to prove marital rape and would add more burden to the already burdened judiciary system.
  • Many politicians, law makers believe that in fact India does have provisions for marital rape but the only difference is that it is not explicitly mentioned anywhere. They feel that there is no need to separately pass a law if there are provisions to indirectly take care of such situations. Section 376 of IPC specifically lays down that a man can be charged of rape if his wife is less than 15 years of age. Also, Provisions (Section 3(a)) of Protection of Women from Domestic Violence Act 2005 that comprise of the term Sexual Abuse which includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman. This indirectly includes Marital Rape and women can claim protection and compensation under provisions of this Act. Also, they feel that if marital rape is committed on women, they can also seek protection under the provision of cruelty under Indian Penal Code. Cruelty includes physical as well as mental cruelty. And this can be a ground for divorce under the Hindu Marriage Act, 1955.

Suggestions and Conclusions

As discussed there have been many laws passed for the protection of women, criminalizing marital rape must also be added to the existing list of laws passed. In the highlight of the inhibitions discussed above it has come to the notice that education is the fundamental preface to the issue of criminalizing marital rape in India. If focused on educational empowerment of women in both rural and urban areas it would certainly and surely lead to literacy which would further advance them to be more independent and shall liberalize them. Educating a woman makes her more aware about her rights and gives her the opportunity to be economically and socially independent. It would also give her the courage to fight for her own rights and seek justice and respect that she deserves. On stage it is shown that India is a developing nation which embracing modernization and westernization with open arms but the reality always runs behind the curtains where India still hoists the flag of having a backward thinking. India has always been known as a patriarchal society which paves a way for the men to dominate and rule leaving behind the women. It is high time to break the conservative mindset and move towards an equitable society where both men and women operate at par with each other in every aspect. In reference to the spheres in which parity must be achieved is inclusive of both economic as well as social domains. The basic ideology of the society is that only a man can earn and take care of his family but education will empower the women to support herself and her family and replace the man. According to the orthodox theory endorsed by the society Indian wives are still pictured as proud possessions of their husbands where men are the puppet masters. As already stated many people are of the view that criminalizing marital rape will be more difficult to prove and will give the wife more opportunity to misuse the law. But this does not mean that a State stops bringing in new laws on the same pretext as mentioned above. In denial of the same it can be stated that every law passed has certain loopholes that can be misused and therefore, it is the universal rule that every Court has to make sure that stern evidence has to be given to meet the ends of justice. Leaving a husband unpunished for committing forceful sexual intercourse on his own wife is shocking as it encourages many other husbands that they can escape, thereby, weakening the system’s credibility. It is necessary that appropriate punishment should be imposed so as to respond to the society’s cry for justice against the rapists. The argument that is made for not bringing marital rape is whether the State can barge into the boundaries of one’s house? The answer lies in many laws which have already been passed like the domestic violence act, dowry prohibition act, divorce and many other instances. Hence, a no should be treated as a no for everyone whether it is someone’s husband, stranger or acquaintance and thus marital rape should be treated as a separate offence with a specific punishment.

  1. Bodhisattwa Gautam v. Subhra Chakraborty AIR 1996 SC 922
  2. AIR 2004 SC 413; 2004 Cr LJ 579 (SC)
  3. State of Himachal Pradesh v. Mango Ram, (2000) 7 SCC 224
  4. Hindu law, Justice PS NARAYANA
  5. R v. Olugboja, (1982) QB 320
  6. Laws relating to offences against women, VK Dewan
  7. Sir Matthew Hale. History of the Pleas of the Crown, 1 Hale PC (1736) 629
  8. R v. R [1991] UKHL 12 23 October 1991
  9. ECHR 22 Nov. 1995
  10. [2011] 2 SCR 40, para. 64
  11. June 1971
  12. 2004(5) SCC 518
  13. Roy, Sudhanshu & Jain, Iti, “Criminalizing Marital Rape in India: A Constitutional Perspective”, Criminal Law Journal, Apr 2008, p. 81-92.
  14. Indra Sawhney v. Union of India, 1992(Supp-2) SCC 217
  15. M. Nagaraj v. Union of India, AIR 2007 SC 71
  16. The constitution of India, An Analytical Approach by H.K Saharay, Fourth Edition
  17. Roop Narain Verma v. Union of India AIR 2007, Chhat. 64, 66 Also, reiterated in Pratap Singh v. Union of India AIR 1985 SC 1695
  18. AIR 1978 SC 597
  19. The Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988
  20. Bodhisattwa Gautam v. Subhra Chakraborty AIR 1996 SC 922 SCW 325

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