Abstract

"Marriage is for woman the commonest mode of livelihood, and the total amount of undesired sex endured by women is probably greater in marriage than in prostitution." - Bertrand Russell, Marriage And Morals
The submission by the Central Government to the Delhi High Court has reignited the debate over whether Marital Rape, an explicit exception for the definition of Rape under S.375 of the Indian Penal Code, 1860, should be recognized as a crime. Discussions are heating up with the female rights activists fighting for removal of the exception and criminalizing forced sex by a man over his wife of 18 years or above, while the Central Government has been vouching for preservation of family ideals. This remnant of India’s colonial past is haunting it, while its colonizers have already abrogated it by the decision of the House of Lords in R v R where Lord Lane of the Court of Appeal observed that “the idea that a wife by marriage consents in advance to her husband having sexual intercourse with her whatever her state of health or however proper her objections (if that is what Hale meant), is no longer acceptable.” The Hon’ble Chief Justice of India (Retd.), Deepak Mishra, in his judgement of Joseph Shine v Union of India, opined, “And, it is time to say that a husband is not the master.” With this view endorsed by the Supreme Court in mind, many are holding their breaths to know the Judiciary’s stand on the issue. The paper studies the legality of Marital Rape in India through its history, legislations and the numerous precedents referring to the issue.

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