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We have to grasp the concept of rape before discussing the phrase marital rape. Rape is defined as a male who commits rape when he enters his penis into a woman's vagina, in whatever way, according to section 375 of the IPC in 1860. It is intangible how much it has gone into the vagina. Even a man's least penetration into a woman's vagina is like rape.

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Marital rape refers to unwanted, or inept sexual intercourse of a man with his wife, obtained via unauthorised strength, the threat of force or physical assault. It is a form of domestic violence. Marital rape is the act to force a wife to have sex without her consent. It is unjust and not a very uncommon way to disempower women. In today’s time, many countries criminalize the act of marital rape. Unfortunately, India is one of the countries where marital rape is still not criminalized. Non-criminalizing marital rape impairs the dignity and basic human right of women.

{This Article aims to elaborate on the lines - marital rape act, marital rape, Marital Rape Laws }

Rape is defined in section 375 of the Indian Penal Code, 1860(IPC). Rape includes all forms of sexual assault and non-consensual sex with women. Exception 2 of section 375 non-criminalize marital rape. Unwilling sexual intercourse between husband and wife not being under the age of 15 years is not amount to rape. Once the couple is legally married, it is believed that both have consented to sexual intercourse for as long as the marriage lasts. 

{This Article aims to elaborate on the lines - marital rape act, marital rape, Marital Rape Laws }

In the historic decision, the High Court of Kerala held the judgment that said; though marital rape is not recognized in Indian penal law, it is a valid ground to claim divorce. A division bench of court has observed that marital rape occurs when the husband thinks that he owns his wife’s body and It did not inhibit the court to recognize it as an act of marital cruelty. Court also said that “desire that can not be satisfied for wealth and sex of a spouse also amounts to cruelty”. 

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The Hon’ble Court mentioned that marital rape was an important reason for divorce notwithstanding its failure to constitute a criminal crime in India. "Even though such behaviour cannot be penalised it falls within the physical and medical cruelty of a husband's licentious disposition, which ignores the autonomy of the wife," says the Kerala HC.

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An order to recognise the individual rights of a woman during her marriage was given by a two-judge bench from Kerala High Court Justices (A Muhammed Mustaque and Kauser Edappagathe). At the hearing of a woman's request to divorce her spouse because of harassment, the bottom handed the order on July 30th.

Sex plays an important role in matrimonial happiness but in this case, the wife was subjected to sexual perversion against her will. In a marriage, both husband and wife had a choice, a choice not to suffer, which was fundamental and guaranteed under the constitution. Marital rape violates the article 14 and 21 of the constitution. Therefore, marital rape also violates fundamental rights. If the court denied the divorce that means the court compels the spouse to suffer against her will.

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The bench also observed that the right to respect spouse physical and mental integrity encompasses bodily integrity, any disrespect of bodily integrity is a violation of individual autonomy. In a marriage, both husband and wife possess privacy as an invaluable right as an individual. Marital privacy is connected to individual autonomy and any intrusion physically or otherwise can violate the privacy. In modern jurisprudence, both husband and wife are treated equally and the husband can not claim any superior right over the wife with respect to her body and individual status. This would also constitute cruelty.

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The further court observed that the need of the present time is that marriage and divorce come under secular law. Division bench judges said that there can not be difficulty in having a common law for all the communities at least for marriage and divorce. Secular law will provide women with the right to equality and justice in a court of law irrespective of their religion in matters concerned with marriage, divorce, maintenance, adoption. 

It is argued that criminalizing marital rape can destroy the institution of marriage. However, rape also has the potential to destroy the institution of marriage. Criminalizing marital rape also concern with misuse. It is difficult to prove the commission of the offence. It is observed that denial of sexual intercourse is a common ground for divorce. The Delhi High Court held that denial of sexual intercourse to a spouse without sufficient reason is mental cruelty and hence a good enough reason to seek divorce.

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However, the aforementioned rulings restate the right of women to physical integrity, sexual privacy, independence and dignity as part of Article 21's right to privacy. This would include wives. The 2018 Gujarat High Court observations in Nimesh Bhai judgement and last week's recent judgement by the Court of Kerala were not likely to provide a true overview of the present state and patriarchal attitudes which remain deeply inherent in the ethos of the society, and which the married women are not a slap in the face.

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It is morally imperative to outlaw marital rape & the contention it holds right now. In need of marital custom and purity, the government cannot neglect or disregard it. The exemptions from the recommendations of the Verma Committee must be applied sooner rather than later, including modifications to the various religious legislation, such as the Hindu Marriage Act. This ruling is more than a push for the government; it gives a route ahead. It remains to be seen whether the mindset and society as a whole are changed.

Unfortunately in India, marital rape laws does not have criminal repercussions, but this judgement is certainly a step forward until lawmakers criminalise martial rape. It might be an excellent basis for divorce.

{This Article aims to elaborate on the lines - marital rape act, marital rape, Marital Rape Laws }