Criminalizing Marital Rape in India: A Step towards Sustainable Development
8 Pages Posted: 10 Oct 2022 Last revised: 1 Nov 2022
Date Written: July 30, 2021
Abstract
The United Nations in the year 2015 adopted certain Sustainable Development Goals with an aim to reduce discrimination of all forms including violence against women. Thus, Gender equality was adopted as the fifth goal for achieving Sustainable development. For any society to progress and prosper, it is imperative that it accords respect to women and provides an environment free from abuse, violence and discrimination. In an attempt to protect the rights of women various laws have been enacted from time to time to criminalize the different types of violence and abuse against women. However, from time immemorial, it has been thought that violence especially sexual assault including rape can only be perpetrated by strangers or outsiders. Within a marriage, a husband could never be thought to have committed the act of rape against his wife as her consent was presumed to be given by the fact of marriage itself. Marital rape is a part of the larger offence of sexual violence perpetrated by a husband against his wife. The term generally implies forced sexual intercourse by a husband with his wife without her consent. In the present scenario it could also include any kind of sexual abuse of the wife by the husband. Marital rape has also been classified as one where force only is used, a battering rape or a sadistic rape. The main concern of the researcher in the present paper is that the act of marital rape is not seen as a criminal offence by the Indian legal regime except in few circumstances. The reason for this is the notion that a wife gives her implied consent to marital intercourse at the time of entering the marital relation. The origin of this marital rape exemption can be traced to a statement by Lord Mathew Hale, a seventeenth century English jurist who enunciated the presumption of “matrimonial consent” which cannot be retracted. The patriarchal Indian society imposes an obligation and duty upon the wife to perform the marital obligation to her husband. Thus a dutiful wife, bound by the concept of sacramental marriage must always obey the command of her husband. Despite the repeated suggestions from international community as well as various committees in India, the government has failed to recognize marital rape as a criminal wrong. Thus reinforcing the age old notion that wife must consent to sexual intercourse in a marriage. In this paper, the researcher aims to present a brief historical perspective of the concept of marital rape, study the definition of marital rape and to critically analyze the existing legal provisions in India. A brief reference shall be made to the laws prevailing in other countries with regard to this subject. The present paper proposes the criminalization of marital rape in India and suggests that penalizing the same will help in preserving and regaining the lost dignity of a woman in marriage and would pave the way for Sustainable Development of future generations.
Keywords: Marital rape, implied consent, gender equality, sustainable development
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