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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. It is a non-consensual act of violent perversion by a husband
against the wife where she is physically and sexually abused.
Indian Statistics : The UN Population Fund states that more than 2/3rds of
married women in India, aged between 15 to 49 have been beaten, raped or
forced to provide sex. In 2005, 6787 cases were recorded of women
murdered by their husbands or their husbands families. 56% of Indian
women believed occasional wife-beating to be justified.
Origin of term Rape: Raptus, the generic term of rape was to imply
violent theft, applied to both property and person. It was synonymous with
abduction and a womans abduction or sexual molestation, was merely the
theft of a woman against the consent of her guardian or those with legal
power over her. The harm, ironically, was treated as a wrong against her
father or husband, women being wholly owned subsidiaries.
http://www.indialawjournal.com/volume2/issue_2/article_by_priyanka
.html
Origin of exemption of marital rape in western World: Laws of modern
western liberal democracy are basically rooted in Christian teachings. In
Christianity sex before marriage( fornication) and sex outside
marriage(infidelity) is considered sin. But sex inside marriage is a duty hence
marriage was treated as synonymous for license to have sex.
Thus most of the old English and civil laws treated marriage as an institution
where husband has full right over his wife including her sexuality. Thus The
Indian Penal code which Borrowed heavily from Victorian Tradition Never
considered marital rape as crime
Wikipedia/ marital rape section
Indian Laws : Marital Rape is not considered rape according to
Indian Penal Code. Section 375, the provision of rape in the Indian
Penal Code (IPC) mentioned as its exception clause- Sexual
intercourse by man with his own wife, the wife not being under 15
years of age, is not rape. The only respite for women is that
Domestic Violance act 2005 offers a civil remedy for marital rape
and section 498A considers perverse sexual misconduct by husband
as a crime.Also under this act woman can seek separation from her
husband on account of marital rape

http://www.indialawjournal.com/volume2/issue_2/article_by_priyanka
.html

Thus indian laws equate rape with a ct of domestic violence . the


implication that after marriage one cannot refuse sex , equates
institution of marriage to that of slavery or bonded labour. Article 2
of the Declaration of the Elimination of Violence against Women
includes marital rape explicitly in the definition of violence against
women. Every citizen in the country has a right of liberty ,life and
privacy. Is entering into institution of marriage an agreement that
one can be sexually abused all life???

Law Commission and Marital Rape


The Law Commission of India in its 42nd report put forward the
necessity of excluding marital rape from the ambit of Section 375.
In their words naturally the prosecutions for this offence are very
rare. We think it would be desirable to take this offence altogether
out of the ambit of section 375 and not call it rape even in technical
sense. The punishment for this offence may also be provided in a
separate Section.
There was widespread opposition to the report of law commission
by various female right group activist to include marital rape as
criminal offence.
The 172nd law commission report recommended that 2nd explanation
in article 375 of IPC be deleted (Sexual intercourse by a man with
his own wife, the wife not being under fifteen years of age, is not
rape). Yet Govt refused to do anything on this as it believes
criminalizing marital rape will threaten institution of marriage.
Constitutional basis of criminalizing marital Rape
Article 14 guarantees a fundamental right of equality before the law
and equal protection of laws to every citizen of India. However it
also requires that the equals within a society are not treated
unequally and that the unequals of the society are not treated
equally.

The two requisites of a valid classification were laid down by the


Supreme Court, as early as in 1952: a. The classification must be founded on an intelligible differentia
which distinguishes those that are grouped together from others;
and
b. The differentia must have a rational relation to the object sought
to be achieved by the legislation
IPC article 375 has made a classification on the basis of marriage.
While it protects unmarried women ,there is an assumption that
married women have lost the right of consent after marriage. This
differentia is against the principle laid down in constitution. Getting
married does not mean the relinquishment of the right to consent or
liberty. Married women also ought to be protected by state in their
private sphere.
Thus the differentia classification used by IPC based on marital
basis is against the principle of article 14 as envisioned by the
constitution
Article 21 of the Indian Constitution enshrines in it the right to life and
personal liberty. Post Meneka Gandhi vs Union Of India it has become the
source of all forms of right aimed at protection of human life and liberty. The
marital exemption to rape violates right to privacy, right to good health, right
to bodily self determination which have been recognized as integral part of
right to liberty.
http://law.galgotiasuniversity.edu.in/pdf/issue2.pdf
Verma Commission
Verma commission which was set up in wake of 16 december rape
incident in delhi gave the following observation on marital rape
Consent in such cases will not be presumed in the event of an existing
marital relationship between the complainant and the accused
But The parliamentary committee on criminal amendment law 2013
gave its opinion that criminalizing marital rape will threaten the
institution of marriage and hence the offence remain decriminalized

Thus the debate has to finally revolve around the definition of


marriage. Is marriage a civil union between two person to live their
life together with oath of loyalty for each other OR marriage is an
institution based on power control and dominance where woman is
just a part of property of Man. Being married does not mean
losing the right to privacy. The classification of victims on basis of
marriage is totally against basic human rights. It reduces women to
mercy of men infringing upon the sexual autonomy of women

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