Marital rape is an important but frequently disregarded problem that questions the basic concept of consent in the context of marriage. This article focuses on the validation and cruciality of consent in a marriage. Our society holds this misapprehension that there is an implied perpetual consent in a marriage, and sexual intercourse, even forcefully between a husband and a wife, could not be classified as rape. This article explores the complexities surrounding marital rape and the cultural mindset of people holding stigma in the society. It implores that living in a patriarchy-dominated society where the victim is blamed and is deemed to bring shame to the family.

This discourages women from reporting It underscores the social stigma that prevents women from reporting these violations, often resulting in victim-blaming and feelings of shame. This article focuses on the legal aspect that there is a gap in legal recognition and the insufficiency of the legal fraternity in criminalising marital rape. It examines the loopholes enshrined in the colonial era book, Indian Penal Code (1860), and the way through which the Child Marriage Act and the Protection of Children from Sexual Offences (POCSO) override these laws. The article additionally examines the mental and physical effects of marital rape on survivors, demonstrating how it diminishes women to nothing more than objects for sexual pleasure.

It addresses the male-dominant views that sustain a sense of entitlement in men, frequently resulting in misunderstandings about consent. The article promotes reforms in the Indian legal system by examining international legal standards, especially in nations that have made marital rape a crime, to guarantee equal legal protection for all women. It elaborates on the comparison between different west countries that have criminalised marital rape.

The goal of this article aims to highlight the critical necessity of recognising marital rape as a grave infringement of human rights, calling for changes in societal perceptions and legal systems to safeguard and empower survivors.

Introduction
Marital rape is an act of sexual intercourse with a spouse without their consent; it happens when one partner forces the other to have sex with them without the clear affirmation of their consent. In this scenario, the affected ones are mostly women.

Marital rape is not yet recognised as a crime in India. There is a gap in legal recognition, as this issue is often misunderstood due to cultural myths, societal stigma, and outdated laws.

It is a violation of women's right to bodily integrity, autonomy, and dignity. Out of 185 countries, 77 have criminalised marital rape, including Britain. A no means no. If a person says no, it signifies no. The consent of a person should be respected in all stages of society. Nearly 30% of women are victims of marital rape. It is still considered taboo in our society.

Men tend to hold the preconceived notion that marrying someone gives them the official license to fulfil all of their desires without the need to ask for their consent.

Marital rape should be discussed because rape is itself a very heinous crime where the hardships and emotional disturbances faced by the victim are immense, and just being married to the victim does not absolve the perpetrator from that crime, as it is a violation of the rights of the survivors where the survivor needs justice, protection, and support. Our society holds this misconception that consummation in a marriage is always consensual, so discussing marital rape would recognise the legitimacy of a spouse's right to say no.

Imparting sex education to the younger generations and the teachings about respecting a person's autonomy and making the sexual offence laws more stringent would take cognisance of the society about different forms of rape, like marital rape and relationship rape, and it would bring reforms and refinement in the society. Talking about marital rape bears a stigma in our society. It is anticipated by the folks of our country that a woman solely must perform the service levied by their husband, but what about their right to freedom of speech and expression, gender equality, and other humanitarian rights? [1]

Why Does Men Rape Or Feel An Entitlement?

There's a pervasive influence of patriarchy and aggressive masculinity in our society. Men often tend to dominate women or hold entitlement over them in society[2]

Women's consent matters none to them, and they treat the bodies of women as subjects of violence or objects of control.

When interviewed, men were confused about the term "consent, often believing that a woman's resistance was merely a formality rather than a refusal. Consent is essential when we intrude upon someone's bodily integrity. [3] Due to the socio-economic factors lying in the patriarchal society where the birth of a son is celebrated as a festival of legacy and a girl's arrival is conceived as an ill fortune, men perceive a notion about holding a superior authority over the woman. When in rage, Men's feelings of anger and frustration are outward towards the woman. There's a lack of proper sexual education among men where consent never mattered and, as a means of asserting control, lauded a powerful masculinity. They confuse aggression with love and view possessive behaviour as a sign of affection.

The hypersexualised media and readily available pornography are shaping men's perceptions of women. With the content in the market, they are accustomed to the fact that women are available for men's personal needs, so they couldn't bear the denial specified by the women. The normalisation of violence against women in films and online content creates a toxic environment where aggressive sexual behaviour is glorified and is considered a cool masculinity among boys.

Marital Rape's Impact On Mental And Physical Health

It is a crime against a woman that undermines her dignity and self-worth, and when this happens within the confines of a marital home, it dehumanises her to the level of an object intended solely for sexual gratification. Women are more prone to vulnerability and suicidality during those phases, suffering from the hardest stages of grief, post-traumatic stress disorder (PTSD) and depression.

For a woman, it's not a stranger who's invading her body-it's her husband, who has made numerous promises and vows to protect her body and soul. The emotional pain women go through after this phase is immense. They are traumatised.

This situation is more horrific for the housewives because

In most cases, women who are not financially independent agree to keep themselves confined and restrained in their own houses because they have nowhere to go and don't have any source of income to sustain the well-being of their lives. They are fully dependent on their husband for survival.

They trust their husband a lot; trust eventually breaks after the exploitation, and after that, they feel vulnerable in their skin. The communication gap widens between the couple. The perpetrator, despite doing a crime, roams freely in society—because just being married to a woman absolves him from committing a crime.

Cultural Backlash And Myths Sustaining In The Society:

In our society, where the patriarchy prevails, or the society is ruled by the patriarchal puppets, marital rape is deemed to be acceptable in society and is considered to be men's right and the duty of the woman to perform the conjugal acts irrespective of the lady's consent. Marriage is regarded as a sacred institution in society; it emphasises the stable relationship of two souls intertwined together in a lifelong affair.

They grow together, fulfil all the essential duties like procreation, perform all the social responsibilities, live in harmony, and face every obstacle of their life together, which eventually deepens their bond. They are also considered one person in the eyes of the law, though these expectations do not entitle the husband to coerce or force his wife into sex against her will.

Marriage is a pure social institution that promotes social stability, but this should not give man the privilege to dominate or perform any unlawful act. According to society's beliefs, marrying someone inherently implies consent, making it difficult for them to understand the notion of marital rape.

The victim is massively blamed for reporting such incidents and is ostracised from their families and society for failing to perform their marital duty and also bringing shame to the family by dishonouring them.

The stigma that this subject matter holds discourages a woman from reporting, speaking out, or seeking help—perpetuating a cycle of silence that goes on and on. It is argued that criminalising marital rapes could undermine family stability and cause an increase in divorce cases. In our society, even after committing a crime as brutal and heinous as rape, the victim is always blamed, and the perpetrator is left in a room to weep.

Legal Perspective:
Historically, there were no laws for the protection of the rights of women afflicted by marital rape. And in a diverse country like India, known for its rich culture and heritage, husbands of women were treated as gods, and serving their husband's needs was considered a sacred duty for women. Moreover, on 4 October 2024, the union government filed an affidavit that citing rape under the institution of a marriage can be excessively harsh and disproportionate; they consider it a matter of privacy and a private affair between husband and wife.

In the matter of Harvinder Kaur vs. Harmander Singh, the Delhi High Court ruled that the Indian Constitution could not interfere in domestic affairs, as it would undermine the institution of marriage. The tribunal also mentioned, "In the privacy of the home and married life, neither Article 21 nor Article 14 of the Indian Constitution have any role to play.".

The legal framework of our country governing marital rape remains inadequate and reflects deep-seated cultural attitudes towards marriage and gender roles. It is rather more complex and creates contradictory landscapes for women. The judiciary acts as the guardian of the constitution and the watchdog of democracy, but the recent judgments by the legal fraternity failed to acknowledge the dignity and integrity of women. During the recent judgment, the court stated their verdict on marital rape that "criminalising marital rape may seriously impact the conjugal relationship and may lead to serious disturbances in the institution of marriage.".

In the previous law, Indian Penal Code (IPC), 1860, exception 2 of Article 375 talks about rape, and when there's forced sexual intercourse, and the wife is not under the age of 15 years, it is not considered to be a rape, and men could easily be exempt from the bars; it was one of the loopholes enshrined in the book of the colonial era. But after the enactment of Bhartiya Nyaya Sanhita, 2023, first of all, there was no separate provision for marital rape, and secondly, Section 63 (rape) of BNS rules out forced sexual intercourse by a man with his wife aged over 18 years, as rape.

This gap in legal provision does not consider the welfare of women at large and only comprises a specific sector of society. Karuna Nundy, a senior advocate, cited the chief justice of India, D.Y. Chandrachud, that "A rapist remains a rapist, and marriage with his victim does not absolve him of the crime. . [4]

A 135-year-old case of pulmone dosee—where an 11-year-old girl was killed due to the penetration by her 35-year-old husband. Her death was attributed to injuries inflicted on her wedding night. And not as rape because the jury stated that the girl is a wife and above the age of consent. Still, after 75 years of independence, we are struggling hard to criminalise marital rape, and the institution of marriage is prioritised more than the victim's need for justice.

The Indian Supreme Court ruled on October 17, 2017, in the case of Independent Thought v. Union of India, that sexual intercourse with a spouse aged 15 to 18 is considered rape. The Court found the exception to Article 375 to be unjust and biased, breaching Articles 14, 15, and 21 of the Constitution.

It was pointed out that child marriage violates the human rights of children and is particularly detrimental to girls' rights, including their right to control their bodies, make reproductive decisions, and "the right to develop into a grown woman." The Court's decision was made to address a notable discrepancy in the age of consent laws: while the POCSO Act, 2012, establishes 18 years as the consent age for all genders, the rape law clause in the Indian Penal Code specifies that married girls can consent at 15 years old. [5]

Consequently, when a girl under 18 has consensual sex with her husband, it is legally seen as non-consensual. Still, when a female is married, it is presumed that the intercourse is consensual, even if she disagrees.

Essentially, a girl under eighteen who cannot provide consent is considered to have given her husband permission for all sexual activities at any time. The Court found it ridiculous to differentiate based on the "interest of the child," particularly concerning girl children. Moreover, this discrepancy cannot be maintained, especially because Section 42A of the POCSO asserts that if there is any inconsistency, the POCSO regulations will be given priority over any other laws.

Different west countries have recognised marital rape as a crime; for example, in the United Kingdom, marital rape was criminalised in 1991 after the landmark case of

R vs. R. . Before this judgment, it was held by the sovereign that consent was already implied in a marriage.

In the important case of r v. r, the House of Lords determined that a husband could certainly be convicted of raping his wife. The court held that marriage does not automatically imply consent to sexual activity and that any sexual intercourse without consent, even within a marriage, constitutes rape. The legal recognition of marital rape in the U.K. has been ingrained in the Sexual Offenses Act 2003, which explicitly mentions the very fact that "rape can occur within a marriage or a civil partnership, and that consent must be obtained for every sexual act, regardless of the relationship between the parties.

In Canada, marital rape was criminalised in 1983, when the Criminal Code was amended to remove the marital exemption that had previously existed. Before the amendment, the law had treated sexual intercourse within marriage as an automatic consent. However, the 1983 change in the law recognised that a wife has the same right to refuse sex within marriage as anyone else.

The landmark case R v. C.A.M. (1996) further clarified that a spouse could indeed be convicted of sexual assault (rape) in the context of marriage, emphasising the principle that consent must be given for every act of sexual intercourse, regardless of the marital status of the individuals involved.

Violation Of Rights:

As stated in Article 14, "Everyone is entitled to equality before the law and equal protection under the laws within the territory of India."

Marital rape laws that fail to classify rape within marriage as a crime create a gender-based distinction that adversely affects women, similar to the legal framework in India. Although women in various relationships (like non-marital ones) have full protection under rape laws, the legal system distinguishes between genders in these cases by allowing sexual assault within marriage without any legal recourse.

Marital rape can be seen as a breach of Article 14 because it denies women the same legal safeguards and recognition of their autonomy that are afforded to victims of sexual assault who are not married.

The law directly contravenes Article 14 by providing unequal legal protection that exempts husbands from penalties for raping their spouses. Regardless of their marital status, the law does not guarantee women equal access to justice and legal remedies concerning sexual violence.

Article 21 of the Indian Constitution secures the right to life and individual liberty, encompassing the right to bodily integrity and dignity. Marital rape undermines both women's right to be free from sexual violence and their bodily autonomy. Women are fundamentally deprived of this basic right to personal freedom under Article 21 due to the refusal to criminalise marital rape.

End Notes:

1. Ravenna Rao Kulkarni. Criminalisation of marital rape in India. Understanding its constitutional, cultural and legal impact. Nujs Law Review (March 2019)
2. Bhagyashikha Saptarishi. Marital rape and law. Manupatra (2021)
3. Marital rape in India. Dhristi IAS (22 Dec 2020)
4. Nazrin Bano. Marital rape in India. IP Leaders Blog. November (2021)
5. Sangamitra. Marital rape. Legal Services in India (2021)