Criminalising Marital Rape in India and it’s Legal Aspects

Monika Kularia, Student, Fiver Year Law College Jaipur

 

“Of all the evils for which man has made himself responsible, none is so degrading, so shocking or so brutal as his abuse of the better half of humanity; the female sex.”

― Mahatma Gandhi[i]

Introduction

The above quoted Gandhiji’s words said back in 1921 ring true even today. Marital rape is a significant but often overlooked aspect of sexual crimes against women. It is one of the most common and repugnant form of masochism in Indian society hidden behind the steely drape of matrimony.

The law does not treat marital rape as a crime. In certain cases, even if it does the issue of penalty remains lost in a cloud of legal uncertainty. The legal system must accept rape within marriage as a crime. Further, women themselves must break free of societal fetters and fight for justice by refusing or protesting to act in accordance with the standards piled on to them as the weaker sex being submissive and docile. Marital rape is illegal in 18 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia. Rape in any form is an act of utter humiliation, degradation and violation rather than an out-dated concept of penile/vaginal penetration. Restricting an understanding of rape reaffirms the view that rapists treat rape as sex and not violence and hence, condone such behaviour.

This paper is an attempt to picture the discrimination, uncover the shortcomings and bare the fallacies of the criminal justice system in India as regards marital rape. It goes on to provide arguments and reasons necessitating criminalization of marital rape. Lastly, the paper suggests certain legal reforms essential to achieve the desired objectives.

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