NATIONAL LAW SCHOOL OF INDIA UNIVERSITY
FAMILY LAW- I
ID NO- 2033
BA (LLB) HONS.
2nd Year, 5th Trimester
DATE OF SUBMISSION- AUGUST 7, 2014
TABLE OF CONTENT
1. Table of statute
2. Table of cases
4. Marital exemption- origin and rationale
5. Marital rape and laws in India
6. Marital rape from family law aspect
7. Marital rape vis-à-vis constitution of India
8. Judicial stand
TABLE OF STATUTES
i. The constitution of India.
ii. The Dissolution of Muslim marriages act, 1939.
iii. The Divorce act, 1869.
iv. The ...view middle of the document...
xviii. Emperor v. Shahu Mehrab, [AIR 1917 Sind 42].
xix. Saretha v. T. Venkata Subbaiah, [AIR 1983 AP 356].
When we come across the word rape, the impression we get is that of a perpetrator who is stranger to a woman. Usually, we do not think of the fact that rape can exist in a marriage as well. It is hard to believe that a husband rapes his wife because he is thought to exercise his conjugal rights. This indicates that a woman has no right, even to her own body and is subject to the will of the husband. Even though masochism in marriage in the form of marital rape is the most prevalent in the present scenario, it has escaped the arms of law. Marital rape can be defined as any unwanted intercourse or penetration (vaginal, anal, or oral) obtained by force, threat of force, or when the wife is unable to consent. Despite its predominance, it has received very little attention even by the criminal justice system which seeks to promote peace in the society by punishing criminals.
The word rape as it originally means “to seize” is a coercive, non-consensual intercourse with a woman. It is an offence against a woman’s property. The Supreme Court has held it to be a ‘deathless shame and the gravest crime against human dignity. However, the legislators intend to protect a woman’s property only against the outsiders and not the husband due to which marital rape is found in exception clause if we look at section 376 of the Indian penal code. In India, a woman is considered to be the property of her husband and a man cannot be perceived to violate his own property. Marital rape is quite complex as the nature of a marital relationship makes it hard for a woman to even consider herself as a victim. This is the reason behind under-reporting of marital rape cases. Even if she wants to report, she is unable to because of her financial dependence on her husband. Many countries have either enacted a marital rape law, or have repealed marital rape exceptions or have started treating marital rape and ordinary rape on an equal pedestal. This indicates that marital rape is seen to be as violation of human rights. However, in India, marital rape is hidden behind the sacrosanct of marriage. Many legislations have been enacted in India which protect women inside the four walls of a matrimonial house, which include laws against dowry, domestic violence, cruelty, etc. However, the biggest matter of concern is that no law has been made against marital rape. Those women who are raped by their husband are most likely to be raped a number of times as she is in a bonded relationship with the husband.
MARITAL EXEMPTION- ORIGIN AND RATIONALE
From very ancient times, husbands have been given the right to force their wives as to have sexual intercourse with them. As discussed earlier, the meaning of the word rape also gives a license to rape to the husbands. Rape means to have sexual intercourse with a woman other than the wife without her...