MARITAL RAPE IN INDIA: DOES THE LEGISLATION UNDERSTAND THE CONCEPT?
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Abstract
Marital rape is sexual violence within the ambit of marriage. It is sexual intercourse imposed or forced by the husband on his wife, as a matter of right, without considering her right to choose and free will. Though it is a form of violence, it lacks criminal sanction. The definition of “Rape” as per the Indian Penal Code, 1860 includes in its scope any non-consensual sexual intercourse with a woman. However, there is an exception to the heinous crime of rape when its occurrence is within the sacrament of marriage.
It is the need of the hour to criminalize the offence of marital rape by amending procedural and substantive laws. This Legislative move will protect the livelihood, rights and interests of women, uplifting the status of the feminine gender, stepping towards a developed nation from a mere patriarchal society. As rightly stated in the case of K.S Puttaswamy v. Union of India, such laws will affirm the right of privacy of an individual by giving them the yardstick of control in making decisions concerning their own body. This also reinstates the right to selfdetermination.
The Authors seek to address the problem of the inability of the Legislature and Judiciary in dealing with the concept of marital rape. The essay has four sections. The first dealing with the definition of rape, marital rape given by various scholars belonging to different schools of thought and how it is a form of sexual violence. The second section deals with the scope of rape and marital rape in India. The third component of the essay focuses on how the crime of Marital Rape is approached by the United Kingdom and Canada. The essay is concluded by the fourth section emphasizing the need for marital rape laws in India, what can be adopted from foreign legislations and the importance to reinstate that a marriage certificate is not treated as a license to rape one’s spouse.
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