Authored By: Minisha padhi
Hidayatullah National Law University
ABSTRACT
This paper argues why marital rape should be considered a crime, and for what reasons the present legal exception that protects husbands is unconstitutional. The concept of a wife automatically consenting to sex simply because she is married is a very outdated one that completely disregards a woman’s basic rights. Marital rape violates women’s dignity, security, and self-determination of their own bodies. When the law provides differential treatment to married and unmarried women in cases of rape, it contradicts the constitutional concepts of equality and freedom of a person.
The paper argues that the marital rape exception cannot be defended today by examining key constitutional articles such as the rights to equality and to life with dignity along with the relevant court judgments. It further investigates how other countries have already criminalized marital rape to prove that such a change is both possible and necessary. On the whole, the paper concludes that criminalizing marital rape is essential for protecting women’s rights and ensuring that marriage is not turned into a space where violence becomes accepted.
INTRODUCTION
The Marital Rape is one of the most debated topics in India. It actually means denying women rights, and not taking women consent into consideration. It came from patriarchal notion followed by society, which viewed women inferior, hence ignoring women wish, consent. Legal system from long time took the marriage as presumed consent allowing sexual activity. However in today’s contemporary world we look upon a broader view that women are on equal footing as men and given equal respect dignity as opposite gender.
The section 375 of IPC considers marital rape as an exception and hence this mainly sparked debate and deliberations, this exception creates a huge gap between unmarried and married women consent related to sexual activity. This poses threat or can be said violates to fundamental rights provided to every citizen of India including women.
BODY
Marital rape in India came when section 375 of IPC stated that marital sexual intercourse without women consent cannot be held as rape.this came from historically rooted notion that marriage gives permanent consent. However the society changes, yet the law allows the husband to go unpunished and women without legal protection regarding marital rape. When we evaluate marital rape in terms of constitutional it gives variety of nuances and sides that , firstly this denies women of legal protection and hence violating Article 14, Article 21 which deals with right to equality and right to life .
The right to equality comes in discussion because the equality word itself signifies the equality of position between every gender of the society in terms of autonomy opportunity etc, but this exception makes it unequal provision towards women leaving them without any legal protection, Article 21 comes in view because right to dignity also comes with right to life , and hence denying the legal protection and leaving the women’s with nothing but violation of their bodily autonomy without their consent and harming their dignity.
Judiciary has also recognized the right to be given as just because of being married cannot erase the women individuality and choice of their bodily autonomy. However judiciary has also observed that the notion of sex presumed in marriage that harms dignity cannot be constitutionally justified.
Everything has two sides, if we look at the other side of the given topic it poses towards misuse factor of protection of marital rape given to women’s. It simply means that if marital rape is recognized as a legal right and if marital rape becomes punishable in the eye of law, then in some cases women may misuse the right and can pose threat to their husband dignity. Hence this can be a opposition point of view which also have to be taken into consideration.
Most of the legal systems around the world have already criminalized marital rape. The marital rape exemption has been removed long ago by countries like the United Kingdom, the United States, Nepal, Bhutan, among many others. International conventions such as CEDAW also binds India to protect women from all forms of gender-based violence. In comparison with international standards, retention of the marital rape exception places India way behind in protecting the rights of women.
The marital rape exception, in continued existence, exposes a number of loopholes and ambiguities in India’s legal framework.Another challenge is the ambiquity of how marital rape allegations should be dealt with, the survivors often face pressure from the family , relatives communites, authorities to “ preserve the marriage”.making report extremely difficult.
Now also many still believes that husband has a right to sex, such a mindset in the comtempary world will worsen the problem of lack of constitutional recognition of marital rape as an offence A comparison with foreign jurisdictions brings out the fact that India has a long, long way to go. The United Kingdom, the United States, Nepal, and South Africa have all criminalized marital rape and treat it as gravely as any other form of sexual violence. Their laws prove that such change first empowers legalism but changes the attitude of the society-a categorical assertion that marriage is not a license to dispense with consent. These examples bring out the urgency for India to update its laws to match global human rights standards.
SUGGESTIONS
- Remove the marital rape exception.
The law should clearly state that rape is rape, even if the man is the woman’s husband. Marriage should not be used as a shield for forced sex.
- Consent to be enshrined in law
Therefore, the law should provide that just because women are married does not simple mean that they are always consenting. Consent is important every time and should be taken every time.
- Train police and judges better
Many cases go unnoticed because the administration doesn’t consider marital rape as such. Proper training can help them recognize the problem and treat survivors respectfully.
- Support survivors
Women need access to easy counseling, medical help, legal aid, and safe spaces. This will make their coming forward much easier.
Increase public awareness for many people, forced sex is normalized in marriage and considered normal . Education and the creation of awareness campaigns could help society understand that consent in marriage is important too.
Better data will assist in creating better laws and policies. Learn and take help from other countries. Many countries have already considered marital rape as a criminal offense. India can learn from how they changed their laws and supported survivors. Push for actual legal reform Bills like that proposed by Shashi Tharoor show that change is possible. It is an issue that lawmakers seriously need to take up and change the law.
CONCLUSION
The marital rape exception demonstrates that there is a gap between law and constitutional principles. Criminalizing marital rape has been an essential element to ensure:
- equal protection for all women,
- recognition of bodily autonomy within marriage.
- stronger protections against domestic violence, and
- Alignment with international norms on human rights.
Unless the law is changed, married women will remain in a situation of serious violence with no available protection.
True equality will not be possible without marital rape finally being recognized as a crime.
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