India is one of the thirty-six countries in the world that has not criminalized marital rape. Several writ petitions are filed in the High Courts and the Supreme Court of India challenging the constitutional validity of the exception of marital rape in section 375 of the Indian Penal Code. Eminent lawyers and activists contend that marital rape is a violation of Article 14 and Article 21 of the Constitution of India. Article 14 guarantees equality to all the people but Indian Laws discriminate against females who have been sexually assaulted by their husbands. When IPC was drafted and proposed, a woman was considered a dependent legal entity. She was considered a property owned by her husband. Therefore she did not possess as many rights which are now guaranteed to her as an independent legal entity and now with changing times their equal rights have also been recognized thus they are no longer considered an object owned by their husbands. Therefore, it is the high time that the Indian Penal Code gets an amendment with regards to the definition and exceptions to rape.
Similarly, Article 21 guarantees personal liberty to each individual. The Supreme Court in the case of State of Karnataka v. Krishnappa held that “Sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.” Judges have come to the same conscience and similar conclusions have been derived from cases such as Suchita Srivastava v. Chandigarh Administration and Justice K.S. Puttuswamy (Retd.) v. Union of India.
All these judgments do not distinguish between a married woman and an unmarried woman. The woman is considered a goddess and she is worshipped in the Indian Culture. That is why it is mentioned in the Holy Scriptures: “Naari tu Narayani”. It is the duty of all of us to protect the sanctity of this shlok and ultimately that of a woman. This conclusion has to come from both legal and social background. A possible argument could have been that even if the courts consider marital rape as a crime but if society does not believe this to be an offense then the judiciary also cannot do anything. But as it can be seen above, respecting women whether married or not is our intrinsic societal value, and when consent is ignored as done in a case of rape then there can’t be said to exist respect for women in society. Marital rape should be treated like any other sexual offense. But the harsh reality is that the victim is made to believe that this is her husband’s right and he has just exercised it and therefore she should not complain against it to anyone.
The social mindset should be changed because the consequences of such thoughts could jeopardize the freedom of speech and expression of a married woman. Just because she is married to a man does not give him the reason to provide him with the license to non-consensual physical relationships. The society has to make sure that the dignity of a female, girls and women both irrespective of their marital status, remains protected and the respect that we give to our culture and books also remain protected. Manusmriti mentions of a shlok:
yatra nāryastu pūjyante ramante tatra devatāḥ|
yatraitāstu na pūjyante sarvāstatrāphalāḥ kriyāḥ ||
This implies that where the women are respected, the divine is extremely happy and where they are not, all the actions remain fruitless. The ball is in the court of us as a society and we have to decide which way it should go; and which way would be correct and appropriate.
Indian Penal Code § 375, No. 45 of 1860, India Code
Marital Rape in India: 36 countries where marital rape is not a crime, India Today, Mar. 12, 2016.
The State of Karnataka v. Krishnappa, (2000) 4 SCC 75 (India).
(2008) 14 SCR 989 (India)
 (2017) AIR 2017 SC 4161 (India).