INTRODUCTION
Even after so many decades of Independence women in India seem still burdened by the shackles of a rigid mindset and an even more disturbing patriarchal setup and have not received the desired status and respect in the society.[1] “Rape, sexual assault, eve teasing and stalking are matters of serious concern-not only because of physical, emotional and psychological trauma which they engender in the victim but also because these are practices which are being tolerated by a society ostensibly wedded to the rule of law”.
“Marital rape is one such offence which is being committed, but is not even talked about openly. “Rape” is sexual intercourse by a man against wishes of the woman with whom such activity is being conducted. It shall amount to rape even when the man presents himself as somebody else or keeps the woman under any kind of misconception as to his identity and in turn forcibly uses her for sex. For such an act not done within a marriage the offence is provided under Sections 375 and 376 of the Indian Penal code.[2] It is to be noted that even now the Indian Criminal law does not recognize marital rape as an offence and exempts the assaulter from any punishment under this section. To put it simply, marital or spousal rape is the exertion of force or deception by a husband on his wife to attain sexual pleasures from her and without her consent.[3]
Marital rapes are usually defined as forced sexual intercourse by the husbands with their wives. It is the most common unreported crime in Indian society. The main reason behind it is lack of knowledge of law. In fact, the main issue regarding this crime is the patriarchal system of our Indian society. Times have changed so have trends and the issue of ‘marital rape’ is nowadays has become common amid all social networks and women do not hesitate to discuss it.[4] Looking at it internationally it is widespread among individuals of all sections[5]. Basically, sexual satisfaction is a human tendency and a biological need of the human being. In India rape is categorically treated as crime under Indian penal code, but there is no specific provision for marital rape. In many other countries it is still not finalized that marital rape is covered by the ordinary law or criminal law but in certain countries it is covered under criminal law.
INDIAN LEGAL PROVISIONS AND MARITAL RAPE
In the Indian patriarchal system, it has been generally assumed that women are nothing more than machines to produce children and look after them and provide sex to men whenever they want even though they are willing or not. This kind of system has in turn affected the legal system and rape within marriage is not considered as an offence and the reason to not make it an offence has been stated to protect the institution of a matrimonial relationship. In lieu of this the conclusion that we can arrive at is that women in this society do not have control over their sexuality and they are regarded as properties of their husbands who have to consent to sex when they give consent for marriage.
[1]Report of the Committee on Amendments to Criminal Law (Justice JS Verma Committee Report) (2013). Government of India. Available at: https://www.prsindia.org.
[2]Indian Penal Code, 1860. Section 375 and Section 376: Rape.
[3]Srivastava, R., Legal Lacunae in Addressing Domestic Violence in India, 10 Int’l J. Legal Pol. & Ethics 87 (2019).
[4]Priti, S. (2021). “Marital Rape: A Silent Crime in India.” International Journal of Law, Crime and Justice, 49(3), 225-241.
[5]Gupta, N., The Socio-Legal Context of Marital Violence in India, 5 Asian Crim. L. Rev. 56 (2017).