• Shantanu Dubey



– Ms. Arpita Tripathi and Ms Ria Agrawal (Students NLUO)

To our amazement and disbelief, the growing societal expectations of masculinity in India are not only destroying the most sacred institution of marriage but also the self-worth of women in general. It’s because the majority of sexual violence is consistently reported within the marital relationship when the wife is forced to have sex without her consent under the pressure of masculine honor, threat and manipulation. The marital rape is having serious outcomes on wife and the children born out of wedlock. Ironically, there is no law which allows wife to press charges against forced sex by husbands. The Apex Court in the case of State of Maharashtra v. Madhukar Narayan Mandikar, (1991) is categorically rejecting the demand of declaring this form of intimate violence as rape inspite of the observation made, that women has right over her own body. Despite the recommendation of Verma Committee in 2013, and the observation made by J. Pardiwala of Gujarat High Court in 2018 clearly stated that forced sexual intercourse between husband and wife cannot be dubbed as rape because Indian Penal Code expressly prohibits it, rather it should be construed as rape. One of the reasons that can be attributed to the criminalization of such heinous act is in India child marriage is prohibited wherein the legal age of a girl to get married is 18 years. On the contrary, Indian Penal Code says sexual intercourse with the wife above age of 15 years would not be considered as rape.

Constitution being the supreme law of the land explicitly says under Article 51A (e) that it is the fundamental duty of every citizen to denounce practices derogatory to the dignity of the women. After marriage women comes under the jurisdiction of a single man who would govern her life & body and ceases to be under the jurisdiction of Indian law because Indian society considers sexual intercourse as obligation being oblivious about the evil consequences because of this detrimental notion. In more than 80 countries marital rape is regarded as criminal offence. As per 2018 National Family Health Survey, married women exceeding 80 percent have been subjected to forced sexual intercourse by their husband since the authorities turn a deaf ear because of the boundations that has been put by the legislature. In this fast paced society where we have adopted western culture this boundation needs to be unleashed because of the independency with which the woman lives her life leaving no stone unturned to help in the development of the nation. After 2013 amendments that has soundlessly acknowledged unqualified license to treat the wife as “chattel” and escapade her in any vicious manner as her husband wishes to do so.

Considering the other side of the coin, that is, even after 13 years of its enactment, where does Domestic Violence Act stand? The provisions of Domestic violence Act, 2005 wife cannot seek justice under this act too, even if, she is being raped by her husband because DVA is a civil law and the victim cannot seek criminal prosecution under it only alternative is that she can take remedy under cruelty. India, even in its 72nd year of independence, fails to protect women even behind the closed door. Equality and protection is a distant dream even in this era.

As the recommendations by 172nd law commission report was already lay on the table, but even it turned into disappointment. Following were some of the recommendations:

  1. An explanation II of Section 375 should be deleted and in furtherance of which Section 376 should also be deleted.

  2. A new offence, namely section 376E with the title ‘unlawful sexual conduct’ should be created.

  3. Sexual assault on any part of the body should be construed as ‘rape’.

In a country like India, where patriarchal notions act as a barrier and continue infringing the core constitutional rights of women based on autonomy like property rights and family rights due to over-riding effect of customary and personal laws.  It is high time to create awareness that shall recognize women as consent holders rather than passive recipient of her husband. Slogans/ campaigns can pave a lot in this regard. On a concluding note, legislature must take a step forward to repeal the discriminatory laws that are rooted in masculinity and patriarchy.

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