A major need for change: Marital rape law in India

The word women and safety has always appeared very ambiguous and contradictory whenever it comes to Indian society. We all are well aware of the terms sex and rape but one cannot use this word when they are staying in a joint family, the moment you use the word sex you will get a cold stare from your mother stopping you from not using that word Infront of your parents or you will be judged by your uncles and aunts because in India sex and rape are still considered as a major taboo.

Rape has always existed in India since time immemorial. It happened back during the Mughal era and is still happening in 2021.  Section 375 of the Indian Penal Code defines rape as a criminal offence. A man has committed rape if he has sexual intercourse with a woman without her consent. However, exception 2 to section 375 exempts unwilling sexual intercourse, not as rape, and makes it legal for a man to rape his wife, hence the term ‘marital rape’! It has been seen that out of 20 hardly 2 or 3 people might have heard about this law, and one should not be blamed because the government never talks about criminalising it and no one in their election manifesto or even in their speeches talks about it.

Then why do Indian men still have the right to rape their wives in India? India is one of the 36 countries where it is still legal to rape your wife. Although various writs have been filed in Supreme Court and High Court and currently, they are flooded with it. In 2020 a writ was scheduled to be heard in High Court. Law on marital rape is a necessary reform in our legal system and should be kept on top priority for the government too. It is a matter of concern, that while on one the country is celebrating the glorious decision in the legal arena from Supreme Court in the matter of ‘triple talaq” and ‘Ram mandir’ on the other hand to the general disappointment that the central government still does not prioritises of viewing marital rape as a criminal offence. As said by Justice Arijit Pasayat: “While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female”

Photo by Sora Shimazaki on Pexels.com

Marital rape is a violation of Article 14 and Article 21, where both rights form the very base of the Indian Constitution. Article 21 of the Indian Constitution, incorporates the right to live with human dignity and is a standout amongst the most fundamental component of the right to life which perceives the independence of a person.

Then what’s holding India to criminalise it? If laws on adultery can be decriminalised then why not martial rape which is a grave issue in today’s world. Well, the answer lies in the very definition of marriage and the institution of marriage. When two people are getting married and anything which happens between the two is their matter of concern then no third party should intervene even if it’s killing your wife for dowry or the want for a male child. Moreover, according to many politicians, it goes against Indian culture. In August 2010, Former Chief Justice of India Dipak Misra said that “marital rape is a western concept”.

The myth behind martial rape should be broken and government need to take drastic steps in criminalising such a law that degrades the wellbeing of women. It is the year 2021 things are changing at a higher pace, crimes are reaching new heights and taking a step towards criminalizing this law shall pave way for many women who have suffered or are still suffering to take a sigh of relief.

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