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    Marriage: A License To Rape: 2018 SCC Online Guj 732. (2017) 10 SCC 800

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    Pragya
    While some courts have called marital rape a "disgraceful offence", the legal system in India still does not criminalize marital rape. The document argues criminalizing marital rape is urgent to restore trust in marriage and challenge views

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    Marriage: A License To Rape: 2018 SCC Online Guj 732. (2017) 10 SCC 800

    Uploaded by

    Pragya
    24 views2 pages
    While some courts have called marital rape a "disgraceful offence", the legal system in India still does not criminalize marital rape. The document argues criminalizing marital rape is urgent to restore trust in marriage and challenge views

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    Marriage

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    While some courts have called marital rape a "disgraceful offence", the legal system in India still does not criminalize marital rape. The document argues criminalizing marital rape is urgent to restore trust in marriage and challenge views

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    © All Rights Reserved
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    Download as docx, pdf, or txt
    24 views2 pages

    Marriage: A License To Rape: 2018 SCC Online Guj 732. (2017) 10 SCC 800

    Uploaded by

    Pragya
    While some courts have called marital rape a "disgraceful offence", the legal system in India still does not criminalize marital rape. The document argues criminalizing marital rape is urgent to restore trust in marriage and challenge views

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
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    MARRIAGE: A LICENSE TO RAPE

    Section 375 of the Indian Penal Code exempts Sexual intercourse by a man with his own wife,
    the wife not being under eighteen years of age, is not rape. In India, it is perfectly legal for a man
    to rape a woman as long as they are married.

    The marital rape exemption originated at common law with Lord Matthew Hale's declaration that
    ‘the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their
    mutual matrimonial consent and contract the wife hath given up herself in this kind unto her
    husband, which she cannot retract.’

    Emphasis on women’s chastity increased during the 18th and the 19th centuries. Rape began to
    be perceived as a threat that woman faced outside the household, which their fathers and
    husbands had to protect them.

    It was under the influence of these laws and attitudes that the IPC was drafted in 1860, section
    375 categorically excluded marital rape from the definition of rape. In 2012, in response to a
    judicial committee’s recommendation to criminalize marital rape, a parliamentary standing
    committee responded that doing this would put the entire family system under great stress.

    In Nimeshbhai Bharatbhai Desai vs. State of Gujarat1, the High Court of Gujarat termed Marital
    Rape as a ‘disgraceful offence’, and elaborately dealt with the issue of Marital Rape stating that:
    making marital rape illegal or an offence will vanish the destructive attitudes that promote this
    attitude. However, since the Indian legal system does not criminalize marital rape, the Court
    made the husband liable only for outraging the modesty of his wife and for unnatural sex.

    In Thought Independent vs. Union of India2, the SC criminalized sexual intercourse with a minor
    wife aged between 15 to 18 years, but has refrained from making any declaration regarding the
    Marital Rape of a woman above the age of 18 years. It was held that exception 2 to Section 375
    of the Indian Penal Code as being violative of articles 14 and 21 and thereby being
    unconstitutional.

    1
    2018 SCC OnLine Guj 732.
    2
    (2017) 10 SCC 800.

    1|Page
    The fight to criminalize marital rape in India is not about changing the law on paper. It is about
    attacking the age-old mindset that still views a woman as her husband’s property and not as an
    individual with her own agency. It’s about fighting against the very notion of marital sanctity
    that is based on the subjugation of women. Also, it is about challenging this larger rape culture
    that denies women their basic rights, respect, and bodily autonomy. Medical evidences have
    shown that rape has serious and long-term consequences for women. Such heinous sexual actions
    must be prohibited. The necessity to criminalize marital rape is urgent in order to restore trust
    and faith in the institution of marriage. Therefore, the exemption of husband from the law of rape
    could be given up now.

    2|Page

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