Marital Rape is Legal in India

Published in

The Scribble Squad

7 min readNov 9, 2020

Marital rape is legal in India.

Criminalizing Marital Rape in India is imperative. In simple words, Marital Rape is, the husband raping his wife. The bothering aspect is these husbands are protected legally, as the law doesn’t make a husband liable for any punishment for this gruesome act. The law is giving a cold shoulder to married women in cases of sexual rape against them, jeopardizing the plight of married women.

Ultimately, the woman is being compelled to resist and endure pain from her husband. Are we falling deaf to the sorrows of wives?

In the previous article, I have articulated possibilities that drive sexual assault. In this article, I will stress on the constitutional aspect of Rape and the Importance of criminalizing Marital Rape.

As we proceed, you will comprehend the need to alter the exceptions under consideration of rape.

Guilty of rape only if the man is not your husband?

The husband is not punishable under Sec 375 of IPC, for raping his wife.

Section 375 in The Indian Penal Code

1[375. Rape. — A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: —

(First) — Against her will.

(Secondly) — Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(Fourthly) — With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation. — Penetration is sufficient to constitute the sexual intercourse necessary to the offense of rape.

(Exception) — Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.] STATE AMENDMENT

This paradoxical exception of the section brews several controversies.

First, why is the age of the wife considered under 15 years of criteria? Isn’t it child marriage, Oh wait! Child Marriage is illegal in our country.

Secondly, the Right to Equality, the Fundamental right as per article 14 is compromised.

We do not provide the right to equality to married women, as per Article 15, Right to Equality. Talking about Article 15(1), it prohibits the state from discrimination against a citizen on grounds of religion, race, caste, sex, place of birth.

Article 15(3) empowers the state to make any special provision for women and children.

Let’s take an instance

Suppose a family forces a female of 17 years old to marry a man of 25 years against her will. The husband rapes the women. In this situation, she approaches the court for justice. Sadly, her request is ruled out by claiming the husband is punishable and charged with rape only when his wife is less than 15 years of age.

18 years is the legal age of marriage in India for women. So the husband shall be punished under the Child Marriage Restraint Act, but definitely spared the rape charges.

They ignore the demographic of entire wives in India for providing justice as per section 376. In such times the husbands become more arrogant, harassing women even more after she files a case.

“Without consent,” is rape.

If the wife denies consent or the husband forces her as per the clauses mentioned under the rape section, the husband can’t be held accountable as a criminal.

Sexual Consent

If a person has sex with a woman against her will and without her consent it is considered as rape. Sexual Consent is the willful agreement and expressed mutual consent to have sex with the partner. Now, this doesn’t mean if you have been with someone earlier you are liable to accept having sex every time. You own the power of acceptance or denial of engaging in sexual activity. Expressing consent is essential every time you get in physical contact with the person. And No always means No. Silence does not convey your will, neither do the clothes you wear. “You ask for it,” by actually asking for it. It is of extreme significance for both the partners to be precise about this aspect. Forcing is not consent. Assuming is not consent.

RAPE

I am going to have sex with you, against your will
I forcibly pushed the women into the washroom and got physical with her
I threatened her to kill her entire family if she doesn’t have sex with me, and she straight away nodded to fulfill my sexual desire.
I deceived her by promising to get married and left her after contentment of physical needs
I drugged her, and when she was unconscious; she accepted to have sex in a dilemma
She is my girlfriend 15 years old, expressed her consent to have sex with me.
But if a husband commits all the points covered under the criteria with his wife, Indian law does not consider it as rape until and unless the wife is under 15 years of age.

Married woman withstand rape.

**Section 376 of IPC Punishment for Rape**

CONSENT

According to section 90 of the Indian Penal Code,

A consent is not such a consent as is intended by any section of this Code if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or

Consent of insane person if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or

Consent of child unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.

Women denying to have sex with her husband because of male dominance, if the partners force his wife against her will, is not considered as Consent. Section 375 includes against her will without her consent punishable as rape.

Increase in crime against women by 16% after implementing the Nirbhaya Act, 2013.

There were a total of 4,05,861 cases of crime against women, registered in 2019. The number reveals a 7.3% increase over the last years where the number of registered cases was 3,78,236. NCRB.

After new provisions were being introduced under the Nirbhaya Act, there was a spike in cases registered, After the act entered into force in 2013, people started getting aware of the law and registered cases when faced with atrocities. The continuous escalation of registered cases also reveals the other side of the story, implying no transformation in society despite the existence of a vigorous law. Considering negligence as an aspect, there are abundant cases that go unseen because of failure or fear of women acquainted with the law. Rest, those who do register cases constantly fight for justice,

Men continue to exploit women. This has to stop, for which there’s an alarming requirement to expose criminals and the sections they are charged with.

Nirbhaya, Hathras Gang Rape, as a society we know these vulnerable women who have succumbed to death because of rape. But how many among us are actually aware of the criminals who commit such crimes?

Expose rapists. Save lives.

Sympathy isn’t the need of the hour, the action is!

In our society, men dominate women, castigate them, mitigating them from claiming equality. The dominance of one person, caste, religion, gender, race is condemned, but reality echoes the opposite of all these.

We consider women sacred, in Mother Land, India. Awfully, respect and devotion of this sanctity are only confined to the temples.

We worship the goddess to protect us from evils

And make the daughters plead for mercy from sinister masked humans.

We accuse women who wear clothes of their choice for the endurance of horrible incidents

But breakdown when women at our homes suffer the same plight

You can force your daughters to cover her body

But who is going to change the demon mindsets with malicious intents?

You become tight-lipped when your daughters confess about the sexual violence

But moan for justice when she gives up on her life

You shut doors on women who beg for help

But except someone helped your daughter

For as long as Patriarchy prevails, Equality departs.