Non-Consensual Intercourse Is A Crime- Marriage Is No License

marital issues, violence, rape
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The social and legal union of two consenting adults- marriage, as we know it, is often a license to harass the woman partner physically and mentally.

Marital rape and non-consensual physical intimacy is one of the significant issues that is swept under the rug in our country and assumes significance when reported and legal recourse is sought.

In a historic judgement the Delhi high court while hearing the petition for criminalising marital rape stated that “Marriage does not mean that the woman is all time ready, willing and consenting (for establishing physical relations).”

The court further maintained that “It is incorrect to say that (physical) force is necessary for rape. It is not necessary to look for injuries in a rape. Today, the definition of rape is completely different.”

According to a 2018 National Family Health Survey, more than 80 percent of married women who have experienced sexual violence named their current spouse as the perpetrator, reports suggest.

Earlier, hearing a petition, a Gujarat High Court judge also said that marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalized.

A Kolkata-based NGO however, opposed the plea to make marital rape an offence, saying consent for physical relations is for all time when a person enters the institution of marriage, reports indicated.

The bench also preserved that since there are laws for the protection of women and all the aspects if was already covered under other laws then, “why should there be an exception in Section 375 of the IPC, which says intercourse or a sexual act by a man with his wife is not rape.”

The court disagreed with the petition by an NGO, opposing making marital rape an offence.

“There is no harm in criminalising marital rape because a rape is a rape. Just because the concerned woman is the wife doesn’t mean that she can be forced to do anything against her wish. We are nobody to question the observation of the court and on a personal note, I absolutely agree to it,” quotes Neel Bhargava, a city-based advocate. If a man finds his women to say no to intercourse for the night, there should be no problem in the husband to accept that and maybe just enjoy some time on or other adult video sites.

“However, the submission of the Men Welfare Trust should also be not ignored, and special care should be taken to ensure that this does not become a tool to harass men, like in a lot of cases where IPC 498 A has been misused.

Also, there is no obligation on the women to have intercourse, but denying intercourse also amounts to cruelty on the part of women and such denial for long, can be a valid ground for divorce.

“As far as proving marital rape is concerned, it is very difficult to prove. Sex is a very private affair and collecting information of such a private affair is practically not feasible. It all depends on the statements on the parties which can be motivated with any intention.

“The court said so because it understands that it is not necessary that there will be physical injuries in marital rape. There can be other ways as well which would compel the woman to get into it without being physically forced.

Hence the court said that physical injuries cannot be a requisite to prove marital rape. This is only limited to the aspect of evidence which the court already tried to negate. This in no way will affect criminalising,” Bhargava further explains.

“Mental torture, denying the lady to work and denying money for her survival because the husband wants to have sexual intercourse is also marital rape,” quips Meeta Manik, an activist for welfare of underprivileged women.

“There have been incidents when the lady was forced into it, since the husband had cut all the cords for her survival.

Kids been beaten up and the lady has to go through the torture everyday as these because he wants to satisfy himself.

Wanting to have non-consensual sex, be it with a wife or not, is a crime and the criminal should be punished.”

Sharing her insights on the case, Rucha Kumbhojkar, a Law graduate says, “A wife is supposed to be her husband’s companion and should be treated rightly.

However, some Indian men seem to be oblivious of this and are hence unaccustomed to the “No means NO” policy and the suffering has to be endured by the wife, who cannot say a word against her husband because of societal pressure.

“Such abusive men who do not understand the meaning of “No” but understand sanction clearly. This is for these men (and for the protection of women) who have faced this abuse that this law is a necessity.

However, I agree with the Men Welfare Trust that this law is liable to be misused, but that cannot be the sole basis for not criminalizing marital rape, as highlighted by the Judiciary in various cases.

There is a need of framing a proper law on this subject, wherein provisions must be made for giving a harsh punishment for the women who misuse this law.

“Although both, men and women aren’t obliged to have intercourse; refusing sex amounts to mental cruelty and is a valid ground for divorce.

Yes, it is difficult to prove marital rape. Proving marital discord could be one way of proving that the sex was non-consensual. Observations as to be behaviour of the husband must also be taken into consideration. Like, is he a person who frequently resorts to violence?

Another thing could be if the husband is known to being under the influence of alcohol or drugs etc,” she further adds.


#All views expressed are those of the respondent’s and Pune365 does not necessarily subscribe to them.

Loveleen Kaur

Loveleen Kaur

She loves travelling, dogs, sarcasm, humour and anything that spells F O O D, in that order. A writer on a journey to make positive stories a morning ritual and give society what it needs the most - optimism !!

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Loveleen Kaur