FEMINIST PERSPECTIVE: “MARITAL RAPE”

USHA RANI1

INTRODUCTION

Marital Rape refers to unwanted intercourse by a man with his wife obtained by force, threat
of force, or physical violence, or when she is unable to give consent. Not only in India but
Over the world there is a, spousal clause in ‘rape laws’. The exclusion of married women
raped by her husbands are private property rather than an autonomous self – determination
person2 .As far as the Indian legal system it is considered it is based on the understanding that
a husband cannot be held guilty rape which he may commit upon his wife.

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Patriarchal roots of marital Rape

It has based on based on the idea that men are superior to women its origin in ancient India
when women were viewed from the lens of possession with limited rights. This historical
trajectory of women being dependent on men generally forced them to become dependent on
their male counterparts instead of being independent economically and socially Based on
traditional gender roles, societal Norms and prevailing historical attitudes.

Status of India on Marital Rape

There is also a belief that, as there are many orthodox people present in India and the
government also have an orthodox view so criminalizing marital rape against husband is
treated as a ‘destabilized marriage 4. The Indian legal system does not provide any legal
provision for Criminalization of marital rape. New Proposed "The Bharatiya Nyaya Sanhita
Act 2023 section 63 defines rape5. This exception 2 of Section 375 of IPC exempts the fact
that the commencement of rape by a husband over his wife who is above 15 is not
punishable. It is just simply violating constitutional laws by being biased based on specific
provisions of IPC and brought significant change in exception 2 of section 63 of (BNS)
stating the change in the age of married women and provides that the consent based on age
1
CUSB2113125124, SECTION- B, 7TH SEMESTER.
2
Dr. Sanjay Sindhu & Monika Thakur, “Indian Perspective on the legal Status of Marital Rape: An Overview”.,
International Journal of Multidisciplinary Approach and Studies Volume 02, No.1, Jan - Feb 2015.
3
Sakshi Kumari, “Marital Rape in India: A Critical Analysis” Jus Corpus Law Journal, vol. 4, pp. 167-190,
Published 19 June 2024.
4
Anusuya Ghosh, School of Law, KIIT ‘‘MARITAL RAPE: AN UNDEFINED CRIME” Indian Journal of Law
and Legal Research Volume ,on 2, August-September 2021.
Supra note
5
Law &justice publishing The Bhartiya Nyaya Sanhita 2023

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should be 18 years that is, this provision increased the age based on consent from 15 to 18
years. The marital exception6

Why it is Favoured by Government

The Indian legal system does not provide any legal provision for Criminalization of marital
rape. However apart from this the role of section 375 of IPC, Within the purview of Indian
penal code 1860 granting married women legal remedy under section 498 A for cruelty or
through the Domestic Violence Act, 2005 7it covers sexual, physical, emotional, verbal
cruelty as well. Therefore, this act recognizes sexual abuse as a form of domestic violence.
Her Husband could be charged of 3 years. Also, The Constitution of India itself provides
ground. Article 14 grants equality before the law and equal protection of law to all citizen of
India. Article 15 strengthens the roots by creating an environment not to subject to
discrimination based on Caste, sex, race, place of birth, or religion and in the confines of
Article 21 immunity to protect sexual autonomy, bodily integrity, and acknowledgement of
reproductive rights provides safe ground against the severe offence of rape not in favour of
recognizes marital rape as an offence. The basic argument is given as due to stark cultural
socio-economic differences between two regions in the west it will not work in India. In India
due to illiteracy and religious 8 belief people will not accept marital rape as a crime. also
misuse like dowry and complex problem.

The Law Commission Reports9:

The 44th Law Commission Report (Law Commission of India, 1971) 10: It suggested that
divorced spouses should not be covered by the exclusion clause and pushed for the criminal
justice system to treat marital and non-marital rape differently. The 172nd Law Commission
Report11, which was adopted in March 2000, specifically questioned the legality of the
marital rape exclusion provision. The Commission proposed that "sexual assault" be used in
place of "rape" and that Section 375 of the IPC should cover all penetration types, such as
vaginal, oral, and object penetration. (Law Commission of India, 2000).

6
,
7

8
Supra note 2.
9
Satyendra Kumar Pandey, “legal approaches to marital rape: an in-depth comparison of india and the us” mukt
shabd journal,volume xiii, issue vi, june/2024.
10
http://www.lawcommissionofindia.nic.in/rapelaws.html, accessed on 18.11.2024.
11
Ibid.

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(The Protection of Women from Domestic Violence Act, 2005): The main objective of this act
is to address the inconsistencies found in other laws, This law reflects the changing mindsets
in Indian society and culture regarding the treatment of women.

ACCORDING TO UNITED NATIONS

The feminist movement along with human rights movements played a vital role in
challenging traditional norms and advocating for identification of marital rape as a form of
domestic violence. raising awareness and advocating for the recognition of marital rape as a
form of violence. Some of the movements include:

1. First Wave (1848 – 1920): This first wave of feminism was highly focused in favour
of white women's rights and passion for multiple resolutions for the specific rights of
these women incorporating the right to vote.
2. Second wave (1960-1980): focus on matters such as reproductive rights, domestic
violence, and sexual autonomy.
3. Third wave (1990s-2000): This wave focuses its attention on subject matters like
marital rape, sexual harassment in workplace and how disproportionately such
offences affect women of different backgrounds.
4. Fourth wave present day: This wave highly focuses on sexual abuse, sexual
harassment, sexual violence, the objectification of women etc. along with advocation
for homosexuals, transgender and people of colour, to heighten their contributions in
society. One of the most famous movements within this wave is the “MeToo
movement”.
5. In 1993 (December), the UN’s High Commissioner for Human Rights
published the Declaration
On the Elimination of Violence against Women and declared marital rape
as a human rights violation12. The feminist movements, The Human rights movements
have been acting as a tool in advocation for recognizing the offence of marital rape as a
crime. Some of the notable human rights movements include:

1. Universal Declaration of Human Rights (1948): Human rights declaration addresses

12
http://www.ebcindia.com/lawyer/articles/645.htm, and
http://www.livemint.com/Politics/b6HcnmMqYadNzWAP05FbEO/Behind-closed-doors-Marital-rape-in-
India.html, last visited on 18.11.2024.

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 2. Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW).13 It highly focuses on attaining gender equality and addresses the issues
concerning the rights of women and their protection.
3. Beijing Declaration (1995) and Platform for Action highlighting the significance of
addressing violence against women, including within marriage, and urging
governments to take action.

And many countries adopt law on marital rape including Soviet Union, Poland, Sweden,
Denmark,

CONCLUSION

The Conservative mindest play a crucial factor in India’s decision not to take marital rape as a
crime. Being a citizen of this country we must think about this issue. In case of Rape, if
protection is to be given then it should be given to both married as well as unmarried. A
citizen’s fundamental rights are guaranteed by the constitution, including the right to marry
and the right to live in dignity. However, if martial rape is not criminalised, a women losses
her fundamental right to live in dignity. Denying justice protection against such atrocities is,
therefore, a complete violation of law. Thus, the crime of marital rape must be made a
criminal offence to improve status of women in India. No need of colonial era mindset.

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