Impunity of Marital Rape: A Critical Analysis of Existing Laws and Regulations

  • Palak Jawa and Dr. Juhi Saxena
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  • Palak Jawa

    Research Scholar at Faculty of Law, Second Campus, University of Lucknow, Uttar Pradesh, India

  • Dr. Juhi Saxena

    Assistant Professor at Amity Law School, Amity University Uttar Pradesh, Lucknow Campus, Uttar Pradesh, India

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Abstract

Marital Rape is one of the most sensitive issues in India which is subject to constant debate and controversy. In India, specifically in Hindu law, marriage is a sacrament bond which provides rights to the spouses to cohabit legally, ethically, along with social sanctity for procreation. However, consent remains at stake when it comes to sexual intimacy in such a pious obligation. National Family Health Survey and United Nations Population Fund have conducted survey which has highlighted the plight of marital rape in India. India doesn’t have any proper legislation which could penalize such a silent rape. There had been several instances when the bill for penalizing marital rape got tabled in Parliament but couldn’t see the ray of hope of getting it passed. However, the Judiciary put an effort to enhance the age of wife from 15 years to 18 years under section 375 of IPC, 1860 by virtue of the landmark case Independent Thought v. Union of India (2017) 10 SCC 800. The plight of married women falling in the category of 18 years and above remained to be unaddressed. The irony for Indian women is that though being a part of the largest democracy, they are unable to get any remedy for this act. Even though there were changes brought in the major criminal laws of the country in 2023 where the government had an opportunity to address the plight of married women, but they failed to do it yet again. There is a pressure on Indian women known as “domestic obligation”, in the family. In such a scenario having consensual sex in marriage stands to be a misnomer. Wife objecting to having sexual intercourse with her husband becomes an issue of ego for the man. This happens as it is presumed that the wife consented to sex at any point of time as soon as she tied a marital knot with her husband. This is quite not picking the standards of Fundamental Rights enshrined under Indian Constitution where it compromises with the women's bodily dignity. Even the framers of law in India, have denied legislating over such an issue by saying that it can create an imbalance in the Indian families, which can also give a drastic change to the legal plethora. Other than this, there also exists a problem of the issue being proved or disproved in the court of law. This concern has rapidly become a part of an everyday discussion and hence a contemporary issue which we will attempt to do justice by covering in this paper.

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Research Paper

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International Journal of Law Management and Humanities, Volume 7, Issue 5, Page 1626 - 1638

DOI: https://doij.org/10.10000/IJLMH.118397

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