CRIMINOLOGY

TOPIC – JURISPRUDENTIAL EVOLUTION OF MARITAL RAPE

NAME – ABDULLAH

ID -LLM023222
ABSTRACT

Rape is regarded as one of the most heinous crimes in the Indian society and is mostly
committed against a women, there still exists a subset of rape which is even more heinous from
the victim point of view where the victim can not charge the accused with rape if she is married
to such perpetrator and has attained the age of eighteen years such laws prevalent makes one
question the reasoning behind such laws. Where one section of the Indian society preaches for
women empowerment and feminist movements there still remains the downtrodden section of
the society where women are subjected to such atrocities and if this isn’t enough these women
have to continue living with such offender due to lack of choice and the society looking
favorably upon the husband of the marriage. A large quantity of women have to face the brunt of
exception II of Section 375 of the Indian Penal code which decriminalizes marital rape when the
women is not under 18 years of age1. Non consensual acts of sexual nature when committed on
an unmarried women would be quantified as rape but similarly when the same is committed on a
married woman who has attained the age of 18 years and before the case of Independent thoughts
vs Union of India such age limit was 15 years as per the wisdom of the legislature who have not
been able to provide a sound reasoning as to why such acts are not under the purview of rape.
The paper analyzes the need for criminalizing marital rape, current inadequacies of alternate
charges and the critical analysis of the rationale legislature has behind such decriminalization.

1
Independent thought v. UOI, (2017) 10 SCC 800
Research Methodology
The research methodology used for the present research article is traditional Doctrinal research
method. As most of the information can be sought form the available literature by referring
books, articles, journals, websites etc. The study also used comparative method of legal research
by comparing the laws with respect to marital rape in UK, US and Australia.

Research Questions
1. What laws are there in India which are committed to providing alternatives of the section
375 and if they are working adequately.
2. Whether the opposing view of maintaining the institution of marriage by withholding
sexual autonomy of a wife holds any merit.
Contents
INTRODUCTION...........................................................................................................................................5
JUDICIAL PRONOUNCEMENTS REGARDING MARITAL RAPE........................................................................6
MARITAL RAPE UNCONSTITUTIONALITY....................................................................................................10
COMPARATIVE ANALYSIS...........................................................................................................................12
UNITED KINGDOM.................................................................................................................................12
UNITED STATES......................................................................................................................................13
AUSTRALIA.............................................................................................................................................13
ALTERNATE REMEDIES FOR VICTIMS OF MARITAL RAPE...........................................................................14
CONCLUSION.............................................................................................................................................15
INTRODUCTION

An act under which a husband compels his spouse to commit sexual intercourse with him is
termed as Marital Rape wherein the women has no consent in such an act. Since it has not been
criminalized the act is committed without the fear of getting charged with rape and such non
criminalization also gives a tag of such behavior to be acceptable in the society therefore it is
practiced in large numbers in the India society. This exception to criminalization is predication
on the traditional, social and conservative belief that a husband has an inherent right over the
sexual autonomy of the wife and the consent of wife to partake in sexual acts is a non-factor
thereby displaying the indifference of consent or non-consent. In the early 1960s several
developed countries recognized the concept of marital rape and thereby gave acknowledgement
to women’s right against such acts pertaining to sexual abuse as well as the protection of women
against such sexual aggression. The dawn of the 20th century a change in attitude to some
sections of the developed society and saw the criminalization of marital rape through reformation
of laws and mindset, such reformations was made on the bedrock of concepts of equity, justice
and good conscience.

Although several decades have went into reformation of society to change its attitude with
respect to women’s rights sexual abuse is still one of the major evils of the Indian society. Indian
society subjects women to several forms of patriarchal toxicity such as marital rape, domestic
violence, forced prostitution. Marriage in India is one of the oldest social institution in India and
one of the most sacred one despite the institution taking blows repeatedly in the modern world,
India having the lowest divorce rate in the world is the evidence of the strength and the sanctity
of marriage. It is accepted and respected by the two most important thing in an Indian’s life-
Society and Religion and due to the emphasis put on the institution the general trajectory is that
marriages in India are unbroken. India maintains and impressive Divorce rate of 1.1% even
though this statistic is impressive to say the least yet the other side of the coin paints an entirely
different picture, there were a total of 4,28,278 cases of crimes against women in 2021 in India.2
31.8 % of the cases were of domestic violence and when we look at the data of divorce it almost
looks like one of the reports are either fabricated, outright lie or maybe there is a reason that
women are remaining in marriages even after being abused mentally, physically and the
Husbands are doing these abuses with the some form of confidence that their marriage in the
eyes of society will remain intact even after such behavior if one had to take an educated guess
they would pick the latter as the truth. Domestic violence among these is one of the most
prevalent in the society so as the data suggests that even though women are being subjected to
such cruel forms of violence they somehow lack the option of getting out of such marriages the
social acceptance of such behavior by the husband as well as non criminalization of marital rape
gives a picture that the odds are stacked heavily against the married women in the Indian society.

2
Crime in India 2021, National Crime records Bureau
Marital Rape is currently recognized in 52 countries as a criminal offence as we can significant
disproportion between the countries who have and those who haven’t viewed this particular act
as criminal nature and the prime contradictions in criminalizing marital rape consists of
protecting the marriage as a sacrosanct institution, and will result in breakdown of families. In
the patriarchal society such as ours women are seen as chattels of their husband such mindset
was also challenged while decriminalizing adultery in the case of Joseph Shine v. Union of India 3
in this case the same institution of marriage was challenged where women had lost sexual
autonomy. According to the current reasoning of the legislature which is portrayed by the 172nd
law commission report wherein it was reported that the laws pertaining to rape had been
thoroughly reviewed and after such review was conducted it was concluded that there is no
necessity of amending the exception II of section 375 of the Indian penal code. The law
commission report further stated that every country has their own group of laws and such laws
are fabric of the society therefore if a certain law is suitable for one country would not
necessarily mean it was suitable for all. It isn’t so that no legislations have been enacted to
counter this particular evil of the society comprising of rape and domestic violence in the
confines of marriage but the increase in domestic violence cases as well as non recognition of
marital rape for women below 18 years leave an opinion that the system requires a through
reformation to bring change in the society to prevent violation of basic human dignity and
fundamental rights of women.

JUDICIAL PRONOUNCEMENTS REGARDING MARITAL RAPE

The supreme court has attempted to bring reforms in cases of marital rape and autonomy of
women to make her own sexual choices such is conveyed through the various judgments of the
apex court both in support of the above and against it spread across decades

In the Indian statutes a husband cannot be charged with marital rape since in the eyes of the law
it is not a criminal offence to have non consensual intercourse with a wife below 184 years of age
which was earlier 15 years of age. In the case of Queen Emperor v. Haree Mythee5 the court
observed that offence of rape doesn’t have any role in marriage if the age of life is above 15
years of age and thereby charged the husband under grievous hurt by doing an act so rash and
negligent that it would endanger life of an individual6 and thereby the husband walked away with
a charge for grievous hurt.

3
(2019) 3 SCC 39
4
Independent thought v. UOI, (2017) 10 SCC 800
5
(1891) ILR 18 Cal. 49
6
Section 338, Indian Penal Code, 1860
The apex court in the case of Suchita Srivastava v. Chandigarh Administration7 held that
complete freedom and liberty should be exercised by women to form their personal reproductive
decisions. It further held that right of a woman to make reproductive choices should be an
intergral part with respect to personal liberty. The apex court was of the view that the autonomy
to live their life with respect and dignity should be provided to every women of the society. The
rights above were not considered to be exhaustive and it would further include a woman’s choice
to restrain herself from indulging in any acts which are sexual in nature.

As we know the saying where there yin there is yang therefore while the apex court has had
pronouncements in support of women empowerment and prevention of domestic violence there
had also been some cases where the courts have followed black letter of law one such case is that
of Sree Kumar v. Pearly Karun8 wherein the Kerala High court was presented with the facts that
while there had been a judicial separation ordered the wife had opted to continue residing with
the husband which further resulted into the husband having forced unconsensual intercourse with
the wife and when this was presented before the High court it held that the hsuband was not
guilty of the charges of rape and the reasoning behind such acquittal was that the high court was
of the view that marriage was a contractual relationship with the consent of both parties
involved and therefore it is an obligation of the wife to surrender to the urges of the husband.
Naturally the decision was criticized but when you look at this case through a wide lens it
represents a problem in the Indian society where sexual autonomy and choice of a married
women is a foreign concept which is considered unsuitable to the ‘traditional values’ of the
society.

In Sareetha v. T. Venkata Subbaih9 court recognized that a women indeed is in possession of her
right to privacy as well as autonomy over her body but the fact that the husband has raped his
wife was not acknowledged by the court since. The court was of the view that non-consensual
intercourse has the capacity to violate the right to privacy of a women regardless of her being
married and such right does not lose its function merely because the parties are engaged in a
association of marriage. In Sakshi v. Union of India10, the apex court expressed concern and a
need to reform the offence of rape and suggested that the current societal conditions require a
change in the laws pertaining to rape so as to make sure that the safety of women is being
provided in both public and private aspects of a women lives.

7
(2009) 9 SCC 1
8
1999 (2) ALT Cri 77
9
AIR 1983 AP 356
10
AIR 2004 SC 3566
In the recent judgement of Independent thought vs Union of India11 both the judges had
unanimously held that after reviewing the facts of the matter the exception 2 of the section 37 of
the Indian penal code is invalid to the part that it would relate to married women of the age
between 18 to 15 years of age since this provision was in conflict with the article 14,16 and 21 of
the Indian constitution and further there were already punishments of similar caliber provided
under section 3 as well as section 5 of the Protection of chldren from Sexual ofences Act, 2012
which had laid down punishments in cases where the wife is the subject of sexual abuse and is
below 18 years of age therefore such provision came in conflict and the supreme court redacted
the exception of the IPC to the extent that it provided exemption of rape on a woman of age
between 15 to 18 years. Although the supreme court had criminalized the offence of marital rape
to those who fall under the age of 18 years and had been victims of unconsensual sexual
intercourse but the same rights had not been given to the married women who have attained the
age of 18 years and therefore cannot charge the husband with the offence of rape the supreme
court in this case had decided to opt out of the issue of whether exception 2 of the section 275 in
the Indian Penal code is unconstitutional or not.

The supreme court held in the case of Joseph Shine vs union of India12 this case was a landmark
judgement for providing empowerment to women and providing a blockade to the interference of
society on the autonomy of women over their bodies. The supreme court questioned the idea that
a woman was a property of the man while decriminalizing adultery it reviewed the lack of gender
neutrality in the provision of adultery and the concept of taking consent from the husband to
engage in extramarital affairs such problems led the supreme court to hold that wife is not
chattels of her husband and is in possession of right to have their sexual autonomy and held the
provision of adultery to be unconstitutional

In the supreme court case of Dilip Pandey vs State of Chattisgarh13 Husband was charged with
having raped his own wife who on being charged with rape had contended that since exception II
of section 375 of the Indian Penal Code had provided an exemption on marital rape thereby no
offence was committed by the husband and the husband was acquitted on the charges of rape

In a landmark order which was produced by the Kerala High court14 stated that just for the reason
that marital rape is not considered as an offence under the Indian Penal code does not necessarily
mean that if the same act had been committed could not give rise to a ground of divorce under
cruelty and the court was of the opinion that such ground was sufficient to attain divorce between
the affected parties.15

11
(2017) 10 SCC 800
12
(2019) 3 SCC 39
13
Dilip Pandey v. State of Chattisgarh CRR/117/2021
14
MAT. Appeal No 151 of 2015, Available at [Link]
12015_4.pdf
15
Nazuk Sood, Criminalization of Marital Rape in India: Need of the Hour, 5 INT'l J.L. MGMT. & HUMAN. 1205
(2022).
In the recent case of RIT foundation vs Union of India16 the Delhi high court had entertained a
plea which seeked to criminalize marital rape and hold the exception II of section 375
unconstitutional and a two judge bench was hearing the petition and gave out a split verdict. In
response, the Government claimed "It is not required to amend the Indian Penal Code in order to
see the criminalization of marital rape as a woman”.who has been sexually assaulted by her
spouse has a number of alternative criminal remedies ".Justice Hari Shanker who was not in the
favor of criminalizing marital rape by striking down the exception stated his reason for not doin
so, In his learned opinion he was of the view that since there is no ambiguity in the text of the
legislature there is no need for interpretation and further he was of the view that if the exception
was removed the husband who otherwise would not be charged would then after such removal e
charged with rape thereby constituting an entirely new offence which was out of the purview of
the court since the courts have not been given the authority to modify punishments therefore with
the same logic the courts can also not create an entirely new offence since it would amount to
judicial overreach. While Justice Shakdher was of the view that removing the exception II would
not create an entirely new offence The following grounds were established in order to ensure that
no new offence would be created:

- There is no discernible reason to give a violating spouse immunity in the case of marital
rape because the declared goal of the rape law is to protect women from the worst types
of sexual abuse. Therefore, if marital rape exception is used, the only effect would be to
broaden the scope of Section 375 IPC to include even offending husbands.
- A new offence or new crime would have been created if the elements of the original
offence were altered. If Marital rape exception is trucked down, the only thing that would
happen is that the offending husband would be considered guilty of the crime.
- A legal judicial method used by courts to sever what is unconstitutional and keep what is
interpreted as lawful is reading down, filling in the blanks and/or excising portions of an
offending section contained in a statute. Based on her marriage to the accused, marital
rape exception aims to ring-fence the criminal.
- According to the IPC, the act of omission or action is what is typically punished under
criminal law. The criminal code is act/omission focused and, in most circumstances, is
unconcerned with the identity of the crime's perpetrator.

In the case of Sakshi v. Union of India17 an NGO named Sakshi petitioned the Indian Supreme
Court in this issue. The aforementioned NGO requested in this petition that specific changes be
made to the penal law's definition of rape and that the updated definition include all forms of
forcible penetration under its purview. Sakshi argued that the current definition of rape narrows
and limits its legislative purpose and also violates women's fundamental rights protected by
article 21 of the Indian Constitution. ratio of the situation The court determined that any

16
(2022) 3 HCC (Del) 572
17
(2004) 5 SCC 518
legislative revisions to the current definition of rape would cause ambiguity, uncertainty, and
would also be detrimental to the rights of society as whole.

MARITAL RAPE UNCONSTITUTIONALITY

The British era is where the habit of not criminalising marital rape first appeared. Women were
not afforded the same rights as men while the Indian Penal Code was being written. Married
Women were not regarded as separate legal persons. The doctrine of coverture played a major
role in the development of marital rape. According to the "Doctrine of Coverture," a man and a
woman's identities are deemed to merge upon marriage. Marital rape was therefore not regarded
as a crime. The idea of a single identity for a husband and wife doesn't seem fitting in the era of
gender equality18. Women and men each have a unique individuality.

For the safety and protection of women, laws have been passed. Certain protections for women
are provided by the Indian Constitution. Marital rape contravenes the fundamental rights to
equality, life, and personal freedom that are guaranteed by Articles 14 and 21, respectively, of
the Constitution. Everyone has the right to equality under Article 14 of the Constitution. It states
that "State shall not deny to any individual within the territory of India the equality before the
law and the equal protection of the laws."19 While prohibiting class legislation, Article 14 allows
for fair classification. The definition of "sexual intercourse by a man with his wife, the wife not
being under the age of 15" under Explanation 2 of Section 375 is not rape within its meaning.

Rape, which is a crime under Section 375 of the Indian Penal Code, occurs when a male sexually
assaults a girl or woman. The Indian penal code's Section 375 does not apply to them if they are
married and the wife is older than 15 years old. Since it discriminates between married and
unmarried women, Exception 2 of Section 375 obviously breaches Article 14. The exception
divided women into two groups according to their marital status, and there is no reasonable
classification for the same.

According to the Supreme Court's ruling in the case State of West Bengal v. Anwar Ali Sarkar 20,
"Reasonable Classification under Article 14 should be based on the intelligent differentia and the
State is violating the fundamental right of equality guaranteed under Article 14 by not
criminalising the marital rape." The very objective of Section 375 of the Indian Penal Code is
obviously defeated by Exception 2. The spirit of Section 375 is in the protection of the woman,

18
"Criminalizing Marital Rape: A Comparative Analysis of Indian and US Laws", Available at
[Link] (last accessed on 22 "d January
2022)
19
Article 14, Constitution of India
20
State of West Bengal v. Anwar Ali Sarkar 1952 SCR 284
whether married or unmarried, and to punish those who indulge in the barbarous act of rape. The
goal stated in Section 375 of the Indian Penal Code is wholly at odds with exempting someone
from punishment simply because they are legally married to the victim.

If a woman is married or not, the repercussions of the rape are the same. Any woman who
experiences it feels the same physical and emotional pain. Married women could also have a
harder time leaving abusive situations since they are legally and financially dependent on their
husbands. On the other hand, the men are more motivated to have sex with their wives against
her will and without her consent because they are aware they won't be punished. Article 21 of the
Constitution guarantees the life and personal liberty of an individual. It states that "Except as
provided by law, no person shall be deprived of his life or liberty." The Supreme Court has
gradually broadened the scope of the Article 21-guaranteed right to life and personal liberty. The
right to life covers a wide range of rights, such as the right to a healthy body, the right to privacy,
the right to live with dignity, the right to a clean and safe environment, etc. Every person has a
fundamental right to a life that is lived in accordance with human dignity. It has nothing to do
with caste, gender, marital status, race, or religion.

The Supreme Court reinterpreted the Article 21-guaranteed right to life in "Maneka Gandhi v.
Union of India21." "Right to life" was defined as including both a physiological right and a right
to a life with dignity, according to this statement. In a similar vein, the Court stated that "Right to
life includes within its purview the right to live with the human dignity and all the basic
conditions of life such as adequate nutrition, clothes, and shelter" in the case of "Francis Coralie
v. Union Territory of Delhi"22. Article 21, or the right to live with dignity, is broken by marital
rape. In the case of Soka v. Emperor23, the court ruled that "Outraging the modesty of the wife
will be penalised regardless of whether she is of young age or has attained sufficient maturity to
appreciate the gravity of the deed. Independent of anyone's disposition, modesty is a natural trait
of womanhood ". Article 21 of the Indian Constitution guarantees married women the
fundamental right to live in dignity. Marital rape violates the basic dignity of a woman and is
consequently violative of Article 21. The right to privacy is covered by the right to life. The right
to privacy is regarded as a fundamental one that is vital to freedom and the preservation of
human dignity.

Right to privacy can refer to a variety of things, including bodily integrity, personal freedom,
data protection, protection from state surveillance, dignity, confidentiality, compelled speech,
and the ability to express one's own beliefs and thoughts. It is not just the "right to be left alone."
In "K.S. Puttaswamy v. Union of India24 the Supreme Court ruled that everyone has a basic right
to privacy, which is safeguarded by Article 21. The Supreme Court stated that a person's right to
privacy includes the freedom to make decisions about their sexual orientation. The wife who is

21
Maneka Gandhi v. Union of India 1978 SCR (2) 621.
22
1981 SCR (2) 516
23
Soka v. Emperor AIR 1933 Cal. 142
24
K.S. Puttaswamy v. Union of India 2017(1) SCC 1
forced to engage in sexual activity by her husband has a clear breach of her right to life and
personal liberty under exception 2 of section 375.

The Supreme Court ruled in State of Karnataka v. Krishnappa25 that "Sexual Violence, aside
from being a demeaning act, is an unlawful breach of a woman's right to privacy and dignity."
Additionally, it was noted that non-consensual intercourse constitutes both physical and sexual
abuse. Similar to this, the Supreme Court determined in the case of Suchita Srivastava v.
Chandigarh Administration26 that the right to personal liberty encompasses the right to sexual
privacy. In "Joseph Shine v. Union of India," Justice DY. Chandrachud further stated that
"Husband is not the master or owner of the sexuality of the wife."

According to the Supreme Court's ruling in the case of Bodhisattwa Gautam v. Subhra
Chakroborty27, "Rape is the most barbaric act which can be committed against any person and
violates the victim's fundamental right to live with the human dignity which is protected under
Article 21 of the Indian Constitution." This demonstrates unequivocally that having non-
consensual sexual contact with a woman, whether she is married or not, is rape. Thus, Exception
2 of Section 375 breaches Articles 14 and 21 of the Constitution, respectively, and Marital Rape
should be criminalised under Section 375 of the Indian Criminal Code.

COMPARATIVE ANALYSIS

UNITED KINGDOM

British Empire A husband argued that marriage gave unrevocable agreement to the "conviction
for attempted rape" in the famous R v. R28 ruling in the United Kingdom. Because the legal
fallacy that marital rape is an exception to the rule was debunked, the court judged him guilty.
According to the court, the nature of the parties' relationship has no bearing on whether or not
someone committed rape. However, there were a number of challenges to the historic ruling,
which found a husband responsible for marital rape. The House of Lords noted that "permission
needed to be taken and that consent can be withdrawn as per the wife's will" when these appeals
made it there in 2003.

25
2000(4) SCC 75
26
2000(9) SCC 1
27
Bodhisattwa Gautam v. Subhra Chakroborty 1996 SCC (1) 490
28
Lisa Featherstone, Rape in marriage: Why was it so hard to criminalize sexual violence?
UNITED STATES

By 1993, every state and the District of Columbia had approved laws prohibiting marital rape,
largely in response to the campaign for women's rights and equality. All US states now recognise
domestic rape as a crime, and many of them prosecute the offender in the same way they would
if the victim had been a married woman. The laws regarding rape between spouses still varied
slightly in at least two states, namely South Carolina and Virginia. In South Carolina, spousal
battery (rape) cases cannot be prosecuted unless the offending spouse's actions were reported to
the police within 30 days of the incident.29 Virginia allows for marital or individual counselling
to be used in place of court proceedings in some situations involving marital rape.

AUSTRALIA

Australian counties passed numerous revisions to their anti-sexual harassment laws between
1976 and 1994. The new legislation revised how victims should be treated and enlarged the
definitions of rape and other forms of sexual harassment. A Special Report led by Her Honour
Justice Roma Mitchell was commissioned by the radical Dunstan Labor government30 in South
Australia to look into sexual harassment, including marital rape. The Mitchell Report was direct
in its criticism of the idea that a married woman had committed to sex for the rest of her life. The
Mitchell Report recommended that cases of marital sexual harassment be handled by the Family
Court rather than recommending that the husband's immunity be revoked.

Many people were shocked when the South Australian government attempted to rescind
immunity even though the partners were still cohabitating instead of implementing the Mitchell
Report's modest adjustments. Marital rape has been made a crime in every Australian
jurisdiction, starting with a partial ban in South Australia in 1976 and continuing to a full ban in
New South Wales and Victoria in 1981. The Northern Territory did so in 1994 after Queensland
became the final jurisdiction to do so in 1989.

29
S.C. Code Section 16-3-615
30
Andrew Mack, A Rocky Road to Democracy: Don Dunstan and the Forces of Darkness Part 2, Vol. 80, JSTOR, Pg.9,
9-14, (2008)
ALTERNATE REMEDIES FOR VICTIMS OF MARITAL RAPE

The argument that adequate legal remedies already exist is frequently made in response to
arguments for criminalization. In the study that follows, we will look at the criminal law
separately in order to show how this assumption is incorrect. We place a strong emphasis on the
necessity to criminalise rape rather than criminalising violence against women in marriage as we
analyse the lack of criminal law remedies. In addition, we discuss how these alternatives fall
short of adequately punishing crimes like rape. Section 498A of the IPC is the most pertinent
provision that is frequently considered as a workable substitute for genuine criminalization. In
the IPC, Section 498A was added expressly to address situations of cruelty to women. There is
a contention that this is insufficient for two reasons, though. first argument is that there is a
clear distinction between cruelty and rape. Rape can be distinguished from a cruelty offence by
its nature and deed. The second reason is that incidents of rape cannot be adequately addressed in
this section. Rape should be recognised as a distinct crime. Beyond that, the crime of rape is
distinct due to the crime's inherent characteristics.

It certainly qualifies as cruelty, but this kind of cruelty differs from physical and mental abuse. It
is connected to intricate patriarchal and power networks. This is further demonstrated by the fact
that rape is treated differently in criminal legislation than grievous bodily harm or assault. A
change in rape law is a good sign for the advancement of women in society. Rape also has
distinct criteria for evidence under the law. The quantity and type of evidence that can be
presented vary depending on the type of offence. The goal of making marital rape a crime is not
merely to "throw the offender in jail," but also to hold the offender legally accountable for the
offence committed. It is unnecessary to reduce the discussion of women's rights to the need for
alternate means of obtaining justice when the constitutionally required system already exists. It
may be true in terms of practical application that a victim of marital rape may have other
legal methods which they can pursue, but this has no influence on the need to make marital rape
a crime. Equating rape with cruelty supports the patriarchal view of a woman's virtuousness.
There are arguments against this line of reasoning, the difference between treating a rape victim
as impure and criminalising rape owing to gender disparity and cultural attitudes. the
criminalization of rape as a distinct offence emphasises that it was the rapist or offender who is
alone responsible, not the victim. The offender is solely to blame for the crime, even if that is the
victim's husband, as the victim made no contribution to it in any manner. Another point being
which is that rape as a crime is distinct from cruelty given the distinction in the nature of the
offence and the evidence standards. This distinction between rape and cruelty may not matter
much if a woman has already been physically abused and raped, but it is extremely important in
all other circumstances for the following reasons. There isn't a one-size-fits-all definition of
cruelty, to start. Cruelty is defined under Section 498's explanatory statement. But the exact
definition of cruelty depends entirely on the facts of each individual situation. The married bond
between the husband and wife, their temperamental and cultural backgrounds, their physical and
mental health, and their interactions in daily life are all essential elements in defining cruelty.
Therefore as we see section 498A is not an acceptable alternative to rape and it downplays the
trauma suffered by the victims of such abuse.

CONCLUSION

The UN Committee report which focuses on Discrimination against women and prevention of
such discrimination proposed that marital rape should be regarded as criminal offence in India.
In 2013 age group who were able to successfully enforce rape charges was increased from 12 to
15 years however this minute but some sort of reform was criticized since it failed to show any
significant improvements for the condition of married women in the society and the status of
women remained the same. While the supreme court has further increased the age limit to 18
years to bring it in consonance with special laws such as POCSO the reform it brought is
strangely lackluster as the one in 2013, even though the government has on many occasions has
preached women empowerment and uplifting the status of women in society the strong
opposition towards crminalizing marital rape presents a diabolical stand of the ruling authority.
the effectiveness of such laws requires political will since when it comes violations of basic
human rights things cannot be left to the slow change in the mindset of society a slight nudge is
sometimes needed to point the societal growth to the right direction. Women have been
victimized from the inception of society it is necessary that they be viewed as autonomous
persons with equal rights and respect in the society rather than mere chattels. Marraige according
to the current mindset of the society is considered as a license to conduct sexual intercourse with
or without the will of the wife such evil structures of the patriarch needs to be mowed down so as
to uplift women and prevent psychological trauma for any future victims of such heinous crimes.