MARITAL RAPE APPROACHES
AUTHOR – MANSI KHATRI, STUDENT AT JINDAL GLOBAL LAW SCHOOL, OP JINDAL GLOBAL UNIVERSITY
Best Citation – MANSI KHATRI, MARITAL RAPE APPROACHES, ILE JOURNAL OF WOMEN STUDIES (ILE JWS), 1 (1) of 2023, Pg. 21-24, APIS – 3920 – 0059 | ISBN – 978-81-964391-3-2.
Pati, Patni Aur Woh (Consent)
A careful perusal of literature reveals that feminists across the globe continue to highlight their concerns over law and social reality of rape.[1] It is undisputed that the number of rape cases in Inpal is dreadfully high, and the threat of rape affects the lives and freedoms of most, if not all women.[2] At the outset, it becomes imperative to mention that criminal law perceives the private act of ‘sex’ as criminal in the absence of ‘consent’ by the woman. To this end, unequal economic and social setting of the individuals,[3] or their masochistic tendencies does not determine the criminal character of sex if the consent has been found to be valid.[4] The validity of consent in-turn becomes irrelevant in the classic instance of marriage wherein the submission (consent to sex) of a woman (wife) to her husband is her deemed duty.[5] This report reflects on the statutory laws of Inpal encompassing the exception of marital rape as exception 2 to Section 375 of the Penal Code. The aim is to provide a holistic understanding of the law for ideation of protection of rights in the criminal law. The report hereby focuses on three interpretations of law.
[1] See Susan Brownmiller, Against Our Will (1975) cited in Gary LaFree, Rape and Criminal Justice: The Social Construction of Sexual Assault (Belmont: Wadsworth, 1989); Lynne Henderson, ‘Rape and Responsibility’ (1992) 11 Law & Phil 127.
[2] Geeta Pandey, ‘Nirbhaya case: The rape victim’s mum fighting for India’s daughters’ (BBC News 15 December 2022) < https://www.bbc.com/news/world-asia-india-63968198 > accessed 2 April 2023.
[3] Catharine A. MacKinnon, ‘Rape Redefined’ (2016) 10 Harv L & Pol’y Rev 431 at 444.
[4] ibid at 445.
[5] See Lisa R. Eskow, ‘The Ultimate Weapon?: Demythologizing Spousal Rape and Reconceptualizing Its Prosecution’ (1996) 48(3) Stanford Law Review 677 at 679.