Marital Rape: crime or not

Updated: Jul 13, 2020

Author-AtishreeGupta

The term “Rape” is elucidated under Section 375 of the Indian Penal Code as a person is said to commit rape who in cases have excepted that he had sexual intercourse with a woman undergoing conditions giving six descriptions where:

  1. Against her will

  2. Without her consent

  3. With her consent but done so by applying force or by threat

  4. With her consent where the man realize that he not being her husband but makes her believe that they are lawfully married

  5. When the woman is in a position of unstable mind or is intoxicated

  6. When the woman is under the age of sixteen years.

Now, when we come to Marital Rape the very meaning of the word means rape but here it means that an act done within the wedlock where the said act is committed without the consent or will of the wife by the husband. Now the question here is whether marital rape is a offence or not? It is defined under section 375(6) of the IPC where the section is defining marital rape as “with or without her permission when is under sixteen years of age clarifying stating that penetration is enough” and just under the clause an exception which says that “sexual act by a person with his wife where the wife is not of 15 years of age does not amount to rape” where under an amendment the word sixteen is replaced with fourteen.

Types of marital rape;

Force only rape: It means when the husband is using threat or violence as a way of obtaining sexual act without the permission of the wife. It usually takes place when the relationship are violent in nature.

Beat-up rape: It is the combination of beating and rape it happens when the sexual act is carried out with physical torture.

Obsessive rape: It is said to be the most barbarous form of rape where the abuser is obsessed into sexual activity where the abuser may use physical torture to get aroused.

Cases on marital rape are not reported so much as to the ratio of cases that are reported on rape as the reasons could be as India being a patriarchal

society where it is assumed that men to be superior to that of the woman. And that it is not easy to prove marital rape as it happens within the wedlock and is impossible to prove what is happened in the four walls. While the other being the less awareness of the situation they are in. Also a reason for not being reported is because in few cases where the woman is not self-dependent or because of the family applying pressure or the family’s reputation as in India once getting into the institution of marriage that implies to forever consent of all activities where the men think that it is okay to not have consent of the woman within the marriage that their no means yes and that it is okay to not ask a woman if she is comfortable or not. While in other countries like Britain, US has already criminalized marital rape where India is still lacking to make a decision. Where they give access to the acts like Domestic Violence Act and section 498A for cruelty. But in the section where it is actually defined about rape considers it only when the person is of sixteen years and not either way. It doesn’t talk about the consent of the woman to be there. Hence it answers the query of marital rape being a crime or not.

It has to become important to understand that it doesn’t have to limit only to a sub-clause of a section but to criminalize it and to know that it is important to have consent whether in a wedlock or not and that a word “no” means that the person is not comfortable and to understand it.




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