National Law University Odisha
The institution of marriage and the acts committed between a husband and a wife witnesses a dilution of the public-private divide. The article focuses on the offence of marital rape in the light of such divide by analysing the split verdict the Delhi High Court delivered in the case of RIT Foundation v. Union of India.
Till date, marital rape is not considered a crime in India. Through the article, the Author aims to explain why the judiciary needs to urgently intervene and declare marital rape as unconstitutional. Taking the marital status of the perpetrator and the victim as a defence, the consent of a woman to sexual intercourse has been repeatedly de-prioritised by various High Courts in recent times. Further, the Author analyses some cases to show how consent cannot be easily detected, but a look into the totality of the circumstances helps determine the same. Lastly, the Author provides suggestions for dealing with marital rape as an offence.
The author examines the constitutionality of the Restitution of Conjugal Rights and the State’s intrusion into private familial spheres. Beyond gender discrimination, RCR’s conception of marriage perpetuates inequality. It advocates for a reevaluation of this interpretation, not to negate expectations of intimacy within marriage but to challenge the legal enforcement of sexual relations as a conjugal right. The ongoing plea against the constitutionality of RCR offers an opportunity for the judiciary to redefine conjugal rights and reshape the institution of marriage.
Constitutional Law Society 