AN ANALYSIS OF MARITAL RAPE

Abstract

Marital Rape refers to rape committed when the perpetrator is the victim’s spouse. The definition of rape remains the same and the essential ingredient to constitute the offense is lack of consent. The burden to prove the lack of consent usually rests on the victim. In some cases, where a minor is involved, it is presumed that consent did not exist as minors are incapable of granting consent as per law. In certain other cases, the consent is presumed to exist i.e. when the perpetrator and victim are married. In such instances, the idea of marital rape becomes anti ethical. At present, fifty-two countries have laws recognizing that marital rape is a crime. In some other jurisdictions including India, marital rape is not a crime. Marital relationship between the perpetrator and the victim prevents the application of laws relating to rape to the offense of marital rape. The reason for not penalizing the offense of marital rape is many folds. The first reason stems from the understanding of wife as subservient to her husband. Women were treated as chattels to their husbands and were not given any rights in marriage. The second reason states that once married, the identity of the woman is merged with that of her husband and the law did not give a woman, personality independent of her husband. With the development of feminism at the post 1970s, these reasons were no longer at the forefront of the advocacy to not criminalize marital rape. The present justification for not criminalizing the marital rape is on the basis of implied consent theory where there is an irrefutable presumption of consent when a man and woman enter institution of marriage. And, criminal law must not interfere in the marital relationship between husband and wife which is a private sphere and no one can penetrate into

This paper, firstly analyses the history of the marital rape in Indian legal system; secondly, it analyses its interplay with the constitution and the concept of alternate remedy; thirdly, it analyses how marital rape is also turned a blind eye in procedural law and how the argument of Right to Privacy impacts in the criminalization of the marital rape.