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VOLUME 2 : ISSUE 5
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ABOUT US

WHITE BLACK LEGAL is an open access, peer-reviewed and

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With this thought, we hereby present to you

WHITE BLACK LEGAL: THE LAW JOURNAL

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WHY MARITAL RAPE IS STILL A HUSH - HUSH

TOPIC IN INDIA ? SUB THEME :CRIMINALISING
MARITAL RAPE CANNOT DECENTRALISED THE
INSTITUTION OF MARRIAGE.
NAME OF THE AUTHOR : AKRITI KASHYAP
CONTACT : 9027376550
EMAIL ADDRESS: KASHYAPAKRITI2@GMAIL.COM
NAME OF INSTITUTE : AMITY UNIVERSITY LUCKNOW , UTTAR
PRADESH.
POSTAL ADDRESS: H.NO.1095, KUSHALPUR ROAD MAJHOLI MORADABAD.

ABSTRACT
The institution of marriage is defined very differently in different religions by different ways
based on cultural , religious and personal factors .Here , we are considering the marriage in
India only , we are citizens of a secular country . Many peoples of different religions are
living here together with peace and harmony. We all are following our own traditions and
culture based on our religion, we all are very well aware that we are living in a secular nation
. In many religion "marriage" is defined as: a sacrament . According to the Hindu Vedic
rituals and traditions marriage is defined as a " Samskaras", which means a compulsory ritual
to be followed by Hindus and this ritual is basically a commitment for whole of the life
between a husband and a wife . Marriage is basically a union between a man and a woman as
a husband and wife with many commitments , to pursue "Dharma", "Artha" (possessions),
"Kama" (physical and other desires) and at last "Moksha" (the liberation) . And according to
many other religions across the world marriage is basically about to have the legitimacy of
child . Being married also gives legitimacy of sexual relations within the marriage. But it be
understood that those sexual relations must be done with full consent not by meant of force or
violence . But being civilised person , when we are going to understand that a husband can
also rape his own wife ?

In India , women are getting protection from domestic violence by means of "PROTECTION
OF WOMEN FROM DOMESTIC VIOLENCE ACT , 2005" and there are many other acts
also given by our law . but have you think about it that if domestic violence is an offence
according to Indian law then why our law is not considering a " MARITAL RAPE" as a very

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harsh criminal offence against the diginity and self-respect of a woman. When Indian System
is going to understand that marriage does not mean the consent of having a woman body with
her husband and marriage does not mean the consent or wiliness to establish physical relation
or to have sex all the time whenever a husband needs . When our system is going to put
"MARITAL RAPE" in the category of rape.

CRIMINALISING MARITAL RAPE CANNOT DECENTRALISED THE

INSTITUTION OF MARRIAGE
It’s 2020 and India remains one among 36 countries where it's not a criminal offence for a
man to rape a woman being married i.e., rape under marriage .This asterisked exception
features in Section 375 of the Indian legal code that defines rape as a criminal offense. a
person commits rape if he has sexual activity with a lady against or without her consent, or if
she may be a minor. (The majority of valid consent is eighteen in India.) However, Exception
2 to Section 375 exempts unwilling sexual activity with a wife over fifteen years aged from
this definition of rape, thus making it legal for men to rape women — who happen to be their
wives — aged 15 and above.

According to the National Family Health Survey (NFHS)-4 released by the Union Health
Ministry , Marital Rape is the most common form of sexual violence reported by married
women in India and here women do not talk much about it as they even don’t consider
marital rape as an sexual offence and they think that providing sexual pleasure is the duty of
wife towards her husband but that’s not even 1% correct. Have anybody even thought that
why in India about 75% of women don’t even know that their husband could also rape them
and sexual intercourse without a wife’s consent is actually a type of rape ? Marriage doesn’t
give the authority of a woman body to her husband , he can’t control her as if she is her
property . The answer for this question lies only within the question only. Let me explain , we
are living in a society which is ‘male dominant’, here we consider that a man can never be
wrong , we all treat a man as a stronger and always the right gender on the earth . Because of
this rule of the society some brainless “man” consider themselves as the supreme authority
and they have the mentality that their wives are their property so that they can make use of
them whenever they pleases. I am not getting that why our legal system after getting many
cases of marital sexual offences recorded in their surveys , not “considering marital rape as a
very brutal offence” ? India , is among those 35-40 countries who have not criminalise this
offence . But most of the other developed countries had criminalised this offence as a brutal

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form of sexual violence against women. Also i am not getting that our NDA government had
opposed criminalising marital rape , saying it may destabilised the institution of marriage ,
even after looking at the survey of the National Family Health Survey (NFHS)-4 , which
survey says that “marital rape is the most common form of sexual violence reported by
married women” . There is a very basic question that if domestic violence is in the category
of offence in our nation and women are getting protection against it by Protection Of Women
From Domestic violence Act ,2005 then why Indian women are not getting protection against
the brutal form of rape nothing but “Marital Rape” in our own country and even after
recording so many surveys that women in their home are also not very safe , even from their
own husbands . When our society and legal system is going to understand that “marriage”
does not mean to have all time consent of a wife of establishing physical and sexual relations
with her husband , when our system is going to get there is many other things also to do after
marriage not only to have physical relationship all the time when husband needs , the consent
of a wife “ a women” is the most essential element to have sexual desires in marriage, Men
should not consider themselves supreme , they should know that forcing their wives to be
physical is a category of rape which is a very brutal offence known as “Marital Rape” , men
must have respect not only towards their mother , sisters but also towards their wives and also
towards each and every person of their society.

The concept of marital rape in India is that the epitome of what we call an ‘implied consent’.
Marriage between a person and a lady in India implies that both have consented to sexual
activity and it can't be otherwise. The Indian Penal code , 1860 also communicates an
equivalent . Section 375 defines the offence of rape with the assistance of six descriptions.
one among the exception to the present offence was “Sexual intercourse or sexual acts by a
person together with his own wife, the wife not being under fifteen years aged , isn't rape”.
However, this was read down within the case of Independent Thought v. Union of India as
“Sexual intercourse or sexual acts by a person together with his own wife, the wife not being
18 years, isn't rape”. Well, this very recent change is simply half a battle won. it's
discriminatory and violates the elemental rights of the Constitution of India. Thus, a red flag
reminding us that the Indian legal code and other legislations that normalize marital sexual
violence, are ancient and there's a dire got to amend them in accordance to contemporary
times.

The infamous case of Phulmoni Dasi wherein an eight year old child died of excessive
bleeding thanks to sexual activity by her husband who was in his mid-thirties at the time. But
the husband was convicted, not for rape, except for ‘causing grievous hurt by doing a rash

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and negligent act dangerous to life’ with one year of imprisonment. The subsequent two
points from the judgement helps analyse the overall attitude towards the marital rape and its
way relevant to it now. “The branch of the law which has no reference to this case is that the
law of rape.”

The Indian legal code , 1860 also communicates an equivalent . Section 375 defines the
offence of rape with the assistance of six descriptions. one among the exception to the present
offence was “Sexual intercourse or sexual acts by a person together with his own wife, the
wife not being under fifteen years aged , isn't rape”. However, this was read down within the
case of Independent Thought v. Union of India as “Sexual intercourse or sexual acts by a
person together with his own wife, the wife not being 18 years, isn't rape”. Well, this very
recent change is simply half a battle won. it's discriminatory and violates the elemental rights
of the Constitution of India.

These two points recognize the foremost common perspective of the legislation and therefore
the judiciary. The Protection of girls from violence Act, 2005 in its definition of violence ,
includes among other things, sexual assault which defines as, ‘any conduct of a sexual nature
that abuses, humiliates, degrades or otherwise violates the dignity of woman’. The definition
here doesn't specify the acts that constitute sexual assault .

On the opposite hand, Section 375 exception 2 absolves a husband from any crime if he
happens to rape his wife. Both these laws seem to be contradicting one another because rape
are often said to be a ‘conduct of a sexual nature that abuses, humiliates, degrades or violates
the dignity of a woman’. Both the laws make it absolutely ambiguous and wish to be fixed.
Interestingly, a legislation against marital rape came into being without actually calling it
‘marital rape’. Thus, the hesitance to interfere into the sexual lifetime of a marriage and to
call it after a heinous crime intrinsically of a rape.

Well, it took 127 odd years to catch up on the disastrous errors of the imperials made within
the Phulmoni case. In 2017, a PIL was filed by Independent Thought, a corporation that
works on child rights, to question the constitutionality of Exception 2 of Section 375. it had
been argued that the exception discriminated between married girl child and an unmarried
girl child because the latter would be considered rape and therefore the former isn't . Well,
there lies discrimination even when a wife isn't protected against rape from her own husband.
it's a failure to know two very different concepts—‘consent to marriage’ and ‘consent to
sexual intercourse’. They both can't be used interchangeably or as synonyms. If anything , an

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adult woman understands better the act of somebody sexually assaulting her. Thus, it's
equally important to guard married women above 18 years aged against the crime of rape.

“The law, it's true, is exceedingly jealous of any interference in matters marital, and really
unwilling to trespass inside the chamber where husband and wife live together, and never
does so except in cases of absolute necessity.”

“ Mother , he raped me!”, said the girl. ““How can this even possible?”, as being your
husband it’s his right! And being an “Ideal Woman”, this is your duty to give physical
pleasure each and every time when your husband needs, replied by mother.”

This is not any dialogue from any movie or show, but this the reality of our society , this is
how our people react after hearing these types of offences and ignore them. In 1800s, around
many years back, a girl of nearly 11 years of age was very brutally raped by her 35 years old
husband, the then colonial government proposed an amendment to change the consent of age
of a girl from 10to 12 years, but also at that time this idea was criticised so badly, but after so
many arguments and all, the amendment was passed in 1890. This was only a brief example,
of that time but think about today, could you even imagine that how our society would react
even if there would be an amendment to categorised “Marital Rape as an offence”, the basic
problem is in our system only, many people of our society criticise to accept new laws and
amendments , they don’t even think that they are for the welfare of our society. I don’t
understand that why this happens in our society, why we are not getting that “Marital Rape”
is a form of rape only. When our society and our people are going to understand that marriage
does not mean the consent. Okay, just forget for a while up to what we have discussed till
now and take your mind to the very brutal offence against the dignity and self respect of a
women i.e., noting else but “Rape”, the news of rape on television news channels , social
media etc., are nowadays very common, which was not supposed to be like this, i am not
getting that what is happening in our nation. Some of the political leaders are blaming the
western culture, clothes and “women” for being raped . But the reality behind this is not the
western culture and all, but such types of offences are occurring in our nation because of the
very low and cheap mentality of “Rapists”. India, is facing the very high number of rape
cases daily because of the increase in number of “Rapists”, Indian society is not teaching
their men, how to show and give respect to their women. Besides Equality, there must be
justice and equity also.

The argument against marital rape is as simple as that. It doesn't matter whether the
perpetrator may be a complete stranger or your husband of the many years; forcing a private

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to interact during a sexual act amounts to rape.Changes in law and society go hand in hand.
the most important battle to fight is that the patriarchy, institution of marriage and family
structure of India. Majority of marriages in India are ‘arranged’ during which women haven't
any say and therefore the relations consent to marriage on her behalf. Thereby, a wedding
automatically means a lady consents to sexual activity because for the longest time, women
are treated as a tool of procreation and to increase the family lineage. Section 9 of the Hindu
Marriage Act, 1955 which has been highly debated for years now, wherein a husband can,
legally, demand sexual access to a spouse is quite often only used against married women.
that ought to be enough proof to how little sexual consent women have in their marriages.In
case of such an unfortunate incident, it's getting to be extremely difficult for a lady to
question the very family structure she may be a a part of . The perpetrator here, is her own
husband; in an arranged marriage or otherwise. Even before she files a complaint, there'll be
family interventions and reconciliations that might cause re-victimization. it's a situation as
that of a double edged sword. She has got to question those very people whom she loves and
respects and it affects the family structure. Therefore, there should be enough care taken to
guard the survivors because it can also cause their abandonment. it's of utmost importance to
question such a system of family and to criminalize the act of marital rape because it's no
different from when a lady is raped by a stranger. Rape is rape, regardless of who the
perpetrator is and therefore the age of the survivor.

Back to the topic again, we should understand that categorising “Marital Rape” as a form of
“Rape” never violates the institution of marriage. But it be understood that those sexual
relations must be done with full consent not by meant of force or violence . But being
civilised person , when we are going to understand that a husband can also rape his own wife
? No doubt that, Marriage is a very holy sacrament according to Indian rituals and traditions,
but besides this, due to many people of our society with low and cheap mentality, this
institution of our tradition and culture is getting violated. This must be treated as early as
possible. We should understand that marriage is basically a formal and legal contact as well
as union between a man and a woman, that unites their lives, economically as well as
emotionally. Being married, gives the legitimacy to be in sexual relationship but within the
marriage and not outside the marriage. And also, marriage is defined very differently in
different entities, based on their cultural, traditions and rituals based on their religious and
personal factors. Here , we are considering the marriage in India only , we are citizens of a
secular country . Many peoples of different religions are living here together with peace and
harmony. We all are following our own traditions and culture based on our religion, we all

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are very well aware that we are living in a secular nation. But, India , is among those 35-40
countries who have not criminalise this offence . But most of the other developed countries
had criminalised this offence as a brutal form of sexual violence against women. Our Law
framers, somewhere are well very aware of “Marital Rape” as a form of rape, As under the
Indian Penal Code, 1860 under section 375 , which defines “Rape”, there is mentioned of two
exceptions, where under exception 2, there is clearly mentioned of sexual intercourse or
sexual acts by a man with his own wife , the wife not being under fifteen years of age , so at
this point, why there is a certain age given, why our law makers are not amending this
provision and convert this exception for women of all ages, why our law makers are not
getting that India is recording many cases of sexual harassment and violence after marriage
also, hence women of India needs special protection in case of marital rapes. Law makers
must understand that marriage is not a certificate of authority that a man can holds , in order
to have sexual pleasure whenever he needs , there must be the consent of his wife , it’s up to
the choice of woman that whether she is ready or not, Seriously there is required to change
our laws related to rape, each and every sexual or physical act or acts done by a man whether
husband or not but without a woman consent must be categorised in the form of “Rape” , and
that man must be punished accordingly. My motive to write this paper is not provide any type
of hatred or whatever, but to awaken those women who are facing such type of tortures in
their daily life routine . Like a human hand never have all fingers equal, so the people of our
society , which means, that every person is different from each other, may be a man is
harassing his wife inside home but it does not mean that all the men community is torturing
their wives , so this paper is not targeting every sector of society and every men or women of
society , the basic aim of this research work is to awaken those sectors of our society which
are facing such type of problems.

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