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Author: Kirti, I year of B.A.,LL.B. from Punjabi University, Patiala, Punjab


Can you live alone for whole your lifetime? If yes, then you are a super human. Everyone needs someone at a point of time with whom he/she can share his/her feelings, someone who will stand with them and support them in every situation. Yes, it can be your parents or your friendsbut no one can take the place of your partner, as parents and friends can’t live with you forever but your better half who knows you better then yourself will be at your side for your whole life time. Therefore, every individual wants to marry at a suitable point of time (exceptions exist). In Indian society marriage is considered a major part of life even important than one’s career. In India marriages are between two families rather than two individuals.

Marriage is a sociallysupported union involvingtwo or more individuals in what is regarded as a stable, enduring arrangement typically based at least in part on a sexual bond of some kind. It is an institution for admitting men and women into family life, legitimating off-springs and establishing other rights and obligations of husband, wife and children. For a peaceful and happy marriage relation, emotional feelings like love, care, possessiveness, loyalty etc are required. Other than these abstract feelings physical intimacy is also required which make the couples one single entity. Every man as well as woman have sexual desires. According to Indian society marriageis the only way to fulfillthose desires. But that desiresshould be mutual.For some men the sacredrelation of marriageis a license of doing sex with their wives.

In India if you do some sexual act with a girl without her consent it will be considered as rape but the same act with your wife is not rape. It is so called right of husband. Men when frustrated want sex, when angry want sex, when sad want sex and with marriage they get complete freedom of sex with their wives whenever they want. The wish of women doesn’t matter as it is considered as the moral duty of women to keep their husband happy. Woman herself has no choice.This is the mentalityof our society. It is not only in India but in the whole world. This is

a kind of problem which women can’t even share with someone. What you will expect the response of police if a woman goes to them and says that I got raped by my husband? It will be laughter and she will become a joke. The answer she might get is that ‘he is your husband, he has all right to do that, if a men will not relieve his fatigue with his wife then where he will go? What’s wrong in that?’ In some cases even the parents will say the same because they don’t want that their daughter should leave husband’s home as they have to face shame among the society because in our society it is very shameful if a girl lives separate from her husband. Then what should a woman do? What she can expect from the society where she is told that it is the duty of a wife to give pleasure to her husband without worrying about her own pleasure. You can’t pour from an empty cup similarly you can’t expect a woman to give pleasure when she herself is not happy. This is the situation in the whole world but in most of the countries it is legallyrecognized as crimebut not so in India.

It may be a minorissue for someonebut the truth is that no one can even imagine the situation of the woman who suffers daily. In some cases husbands force their wives to do oral and anal sex and use violent methods if refused by the wife. All this have major physical, psychological and mental effects on the woman. Forced sex can cause bruising and bleeding in and around the vaginal or anal area, also on other parts of body from coercive violence. Forced and unsafe sex can cause urinary infections, uterine fibroids, unwantedpregnancies, sexually transmitted diseases (SITs), diseases like vaginismus (a condition affecting a woman’s ability to engage in any form of vaginal penetration) etc. This is not all,marital rape also have psychological consequences like depression, sleep disorders, eating disorders, anger, feelings of personal powerlessness (woman feels that her husband is the owner of her body), distrust of others, feelings of anxiety and stress. All these are just some examples. Its consequences are far more than that.

The main problem is that if all this is caused to a woman by someone other than her husband then, it is recognized as crime. But if same is done by a husband with his wife then it is acceptable. When rape is committed with a woman many people raise voice, some can be seen as doing candle march but the same violence done by a husband with his wife is considered the right of men. Doesn’t this seem unfair? Here the only fault of woman is that she is married with her violator. As after marriagewoman is considered no longer to be the owner of her body, her husband becomes the owner of her body as if she is not a human being and is just a property owned by someone.\

In India section 375 of Indian Penal Code (IPC) defines rape. The definition of rape has some exceptions as well. One of those exceptions is- ‘sexual intercourse by a man with his wifewho is older than 18 years of age’. It means that if a man did sexual intercourse whether it is consentual or not will not be considered as rape. So as per current law, a wife is presumed to deliver perpetual consent to have sex with her husband after entering into marital relations. It means that consentof married womandoesn’t matter after marriage. What matters is the will and pleasureof man. Article 14 of Indian Constitution says that “The state shall not deny to any person equality before the law or the equal protection of the law within the territory of India”. This shows that law in India itself contradict each other. How can one talk about equality when the law itself discriminates between two women just on the basis of relation with the accused. Article 21 of Indian Constitution says about right to live and right to live with human dignity. Is that right not for married women who have to lose her dignity daily? It’s a big question, the answer of which should befound out.

Yes it is true that rape victims in India have to wait so long for justice and even sometimes justice delivered after waiting for so long doesn’t carry any meaning in it. But the marital rape victims are not given justice. In a recent case the Chief Justice of India asks whether rape accused would marry the alleged victim. It means that a person can avoid his conviction if he marries the rape victim. A same type of law prevails in Morocco in which the accused marries the girl whom he raped to avoid punishment. But it was repealed because it is not a punishment for accused but a prize. It will be easy for men that first rape a girl and then marry her. How can we expect that a rapist will respect the girl after marriage? How can a sudden change of heart can happen. In some different case the CJI asked a girl’s lawyer “when two people are living as husband and wife, however brutal the husband is, can you call sexual intercourse between them ‘rape’?” In a case, instead of meting out harsh punishment the Supreme Court asked the accused whether he would be willing to marry the victim or take risk of going to jail. Once a minister said that “If we criminalize the marital rape then husbands will be found more in jails rather than homes”. Some say that by criminalizing marital rape, crime against women will not decrease. Do murders decrease by criminalizing murder? Clearly no. Sometimes the women ministersgave same type of remarks. How can one seek justice when such type of thinking prevails in our society, when top officials of our country say such things? How can we expect from our judicial system to criminalize marital rape when marriage is seen as a solution of crime of rape. When justice givers have such mind set then what can a woman expect from society? In India if the accused proves that he and the victim was having a consentual sex in past than judiciary takes a soft corner for the accused. It is said that if the woman was not having any problem in sexualintercourse first time then it means that she will not have any problem next time also. The question here is that if a woman gave her consent for sexual intercourse once then should it be considered as implied consentfor sexual intercourse each and every time? It’s a big question and important one to find its.

As we know that during Covid-19 lockdown everyone was locked at their homes. Men who usually go outside for work and who do not have much habit to live at homes, had a suddenchange in their lifestyles when they were forced to live in their homes 24x7. This lead to frustration, anxiety, stressin them and the cost of this hadto be born by their wives.The number of marital rape cases increased during covid-19 lockdown. According to the National Commission of Women (NCW) there was a spurt in crimes against women during the Covid-19 lockdown with average monthly complaints received by NCW rising from 1,411 per month during the period January- March 2020 to 2,165 per month during April-December 2020, according to data put out by a parliamentary panel. How can we expect safety of a lonely girl at night when women in their own homes are not safe? Everybody talks about women rights, men-women equality, feminism but the problem is that these are just words having no actual meaning. A wife should have same rights over her body as any other woman. All this proves that marital rape is an unaddressed stigma of our society.

One can wonder that when we all know about this problem of women then why we can’t criminalize the marital rape when in more than 100 countries of the world marital rape is a crime. The point raised by opposition of this criminalization of marital rape is that by this women may misuse their rights. They can use the rights which are given to them for defense as weapon for revenge. It had been seen that many wives claim false charges of dowry and domestic violence on their husbands and in-laws. So, it may be the case that a woman may claim false charge of marital rape on her husband. In addition to that, the marriage is a publicactivity but activities

like sexual intercourse are very much private. How can one find out what happened in the private space like bed room. How will a husband prove his innocence? Women can easily play victim card. No one can find out whether the husband is telling the truth or wife is telling the truth. Therefore we can’t rule the law in favor of any one extreme end. We have to choose a middle path. Women should not be easily trusted and at same time marriage shouldn’t be considered as license to do sex. For this to begin the crime of marital rape should be recognized. As the IPC was made in 19th century according to traditions of Victorian society of England, at that time women were not given any separate rights. Husband and wife was considered as single legalentity. Therefore therewas no mention of rape in marriage. The same law was implemented in India since then. But the time has changed now. Today woman is aware of her rights. So, exception 2 of IPC should be amended and non consentual sex with one’s own wife should be considered as rape. After Nirbhaya gang rape case ‘The Verma Committee’ was constituted to recommend amendments to the criminal laws and the Criminal Law (Amendment) Act, 2013 was passed. The justice J.S. Verma Committee had advised that the law should specify that a marital or another relationship between the perpetrator and victim cannot be a defense against sexual violence. But it was not implemented. So, it should be taken into cognizance. In the landmark judgementof the European Commission of Human Rights in C.R. vs U.K., itwas concluded that “a rapist remains a rapist regardless of his relationship with the victim”. In other judgement in Shimbhu & Anr vs State of Haryana (2013), the Supreme Court said that the offer of rapist to marry the victim cannot be used to reduce the sentence prescribed by law. Supreme Court in many cases has said that compromise in rape cases is out of question but it doesn’t reflect in our laws. Most of the countries in the world consider marital rape as crime but India is not oneof these. In 2013, the UN Committee on Elimination of Discrimination against Women (CEDAW) recommended that the Indian government should criminalize marital rape. Thereforeit is high time that India should take steps towards this issue but not blindlyonly in the favor on women. As it had been seen that some men also suffer from domestic and sexual violence but there is no such law by which men can complain about such violence. We should not do the same in criminalizing marital rape. Although it may be rare but laws on marital rape should consider both men and women. For this we should take example from countries which recognize marital rape. Most of the countries define marital rape as ‘Act of sexual intercourse with one’s spouse withoutthe consent of the other spouse’. Once a woman files a case of marital rape

against husband, proper medical checkup should be done to find whether force was used or not as mostly in consentual intercourse no marks of force can be seen. Psycho-analysis of women must be done to find out whether the woman was really forced to do sexual intercourse or it was with her will. Women should also be financially independent so that they don’t have to worry about what they will do if they leave their husbands and they don’t have to suffer just because of their children.

This is not only a legal matter. It is a social matter where patriarchy still prevails in our society. Men should understand that they are not the owner of their wive’s bodies. They are their better halvesand should be treated as theirequal. Hence, law and societyshould join hands to removethis social stigma.



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