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Can a husband rape his own wife?

Marital rape in India: why is it still legal?

What is marital rape?

Marital rape is the act of forceful sexual intercourse with your spouse without

their explicit consent. This provision applies only to married women above the

age of 15 years. According to a 2019 report by the National Crime Records

Bureau (NRCB) titled ‘Crime in India’, about 70% of women are victims of

domestic violence. It is not unpredictable or uncommon that a conservative

society like ours perpetuates violence against women. To understand its

severity we need to examine the root of the issue.



What is rape according to IPC?

According to section 375 of the Indian Penal Code (IPC),

Rape is defined as “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: —

— Against her will.

—Without her consent.

— 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.

—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.

— 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.

— With or without her consent, when she is under sixteen years of age.”


IPC on marital rape:

Section 375 provides for the protection of women against their vulnerability

and prevention of sexual offenses against women. However, the exception (b)

provided under the act undermines the integrity of the section. The exception

states -


Sexual intercourse by a man with his own wife, the wife not being under fifteen

years of age, is not rape.

Hence the section explicitly divides the legal identity of a woman into

unmarried and married- the latter left without any legal recourse in case of any

sexual coercion initiated by her spouse.



What is consent?

The consent referred to in this act has been taken in the very primitive and

patriarchal sense. Consent may be an unequivocal verbal agreement or

through her acts or gestures in the form of non-verbal communication. If a

woman doesn’t physically resist the act, it will not be deemed as rape. The

most distressing aspect is the concept of ‘implied concept’. A woman, after

getting married, is said to have given her husband perpetual consent to all

sexual activity. Marriage has been regarded as consent to any and all sexual

activity which is quite appalling. The degradation of women and being stripped

of their rights as human beings are being legally sanctioned.


What does statistics say on marital rape in India?

Only 36 countries including India have yet to criminalize marital rape. As per

the report, in India, a woman is raped every 16 minutes, and every four

minutes, she experiences cruelty at the hands of her in-laws. An analysis of

the National Family Health Survey (NFHS) 2015-16 data indicates that an

estimated 99.1 percent of sexual violence cases go unreported and that the

average Indian woman is 17 times more likely to face sexual violence from her

husband than from others.




Where to get the help from towards justice?

The section discriminating between specific sections of women based on their

marital status is in strict violation of section 14 of the Indian constitution which

provides for equality and equal protection before the law. This section also

stands in violation of article 21 which emphasizes the right to life and personal

liberty. The right to life also includes the right to live with dignity and our legal

system is depriving the married women of our society of it.

Women however can seek the recourse of section 498A of IPC which provides

punishment even against her husband or relatives. She can also seek the help

of the Protection of Women from Domestic Violence Act, 2005 where she can

file complaints against forced sexual activity against her will even if the coercer

is her husband.



In case someone near you is facing any form of domestic abuse, help them out

by providing comfort and a guide on how to use these helplines.


Helplines (where to call for immediate help):

1. NATIONAL COMMISSION FOR WOMEN (DELHI Complaints: 011-

26944880, 26944883

2. Women Helpline (All India) Women In Distress:1091

3. Women Helpline Domestic Abuse: 181

4. Central Social Welfare Board -Police Helpline: 1091/ 1291, (011)

23317004

5. Shakti Shalini - women helter: (011) 24373736/ 24373737

6. Sakshi - violence intervention centre: (0124) 2562336/ 5018873

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