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Legal Implications of Marital Rape In India

Legal Implications of Marital Rape In India

Marital rape is a sexual assault or an act of forcible sexual intercourse by the spouse. Earlier the issue of marital rapes was less talked about but in present time’s people in India have raised their voices against the assault. The famous Supreme Court lawyers are also fighting to expand the ambit of marital rapes.

The Indian Penal Code under section 375 defines rape as sexual intercourse committed without the will and consent of the woman. The Code does not consider sexual intercourse by a man with his wife above the age of 15 years as rape. However, if the wife is below the age of 15 then only it amounts to marital rape.

Various social activists and the top lawyers in India are of the opinion that rape must be treated as an offence even when it is committed by a spouse. As presently the most common defense available against the offence of rape is marriage because the law does not count forcible sexual intercourse by a man with his wife as an offence.

Famous legal jurists and scholars are of the opinion that not making marital rape an offence is a violation of Articles 14 and 21 of the Constitution of India. Article 14 guarantees equality before and equal protection of laws, therefore this article gives a right to the people to be treated equally. Treating marital rapes purely legal creates discrimination as rape is treated as an offence against an unmarried woman by a man and at the same time rape by a husband is purely legal. Article 21 of the Constitution of India guarantees right to a dignified life which is again violated when the victims of marital rape have no legal remedy available.

The Indian Penal Code under section 376B treats marital rape as an offence as sexual intercourse with one’s own wife without her consent when she is living separately from her husband is made punishable with a minimum imprisonment of 2 years which may even extend to 7 years with fine.

It is very unfortunate that despite the technological and educational developments the law has failed to provide any remedy for the victims of marital rapes. Sometime back the High Court of Delhi while hearing a petition pertaining to marital rape said that a wife is not under an obligation to have sex with her husband as and when he wants. The court further held that threatening a wife to have sex amounts to rape.  However, the decision of the High Court did not last long.

Various developed nations have made stringent laws against the exploitation of women and even marital rapes. As many developed nations are of the strong belief that there exists no space for sexual assault on women whether within wedlock or outside of wedlock. These nations treat marriage as an institution which rests on the foundation of mutual respect and companionship, therefore, the marital rape does not fit well within this institution and has been made a punishable offence. India lacks behind in the criminalization of marital rape as it has roots attached in the culture and traditions in India.

Lately, it has been witnessed that the voice of people has been heard and changes have been brought in various existing laws. Live examples of such changes are the Criminal Law Amendments 2013 and 2018 and a need exists to raise a voice against the lack of law pertaining to marital rapes. Best lawyers in India encourage people to file PIL’s and SIL’s to bring about a change in the existing conditions.                



Suwaiba Malik, BA LLB (Hons.) Graduated from University of Kashmir Department of Law. Presently working with LawzGrid a part of Karmasquare as an In-House Lawyer and a Content writer. It is well known that “ignorantia juris non excusat” meaning ignorance of law is no excuse. Following this rule, I desire to educate people about law and by writing various blogs and articles I aim at making legal knowledge easily available so that they become aware about their rights and liabilities.

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