The Archaic Notions of Consent Theory: A Need to Criminalise Marital Rape in India

Diya Dutta
 Maharashtra National Law University, Mumbai, India.

Volume III, Issue III, 2020

Today, India comes under the category of countries being one of the most unsafe place in the world. While we extensively talk about how women are deprived of their human rights in public, work place, or home, we often neglect how the worst manifestation of violence begins from their very bedrooms; a place which is supposed to be the most protected and intimate zone in a person’s life. Its more unfortunate that even our laws don’t acknowledge heinous offences such as marital rape to be a crime as according to the existing jurisprudence a spouse cannot rape his wife. Further, the State has tried to justify not criminalising marital rape by giving reasonings such as how criminalising shall destabilise the institution of marriage, subsequently tarnishing the sanctity of a matrimonial sphere and to having already existing alternative remedies in law for women. This paper shall depict how these arguments against criminalisation marital rape are erroneous. Through an analysis of the inception of the marital rape exception clause and analysing Article 14 and 21 of the Constitution of India, it shall be argued that the marital rape exception clause found in the Indian Penal Code, 1860 is wholly unconstitutional. Further, it shall be duly noted that there is a the lack of existing alternative remedies for a woman to seek redress under if she is raped by her husband, thus concluding that criminalisation of marital rape is wholly necessary.


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