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Perspective on Marital rape: Nimeshbhai Bharatbhai Desai v. State of Gujarat (2018)
The judgment of Nimeshbhai Bharatbhai Desai v. State of Gujarat focused upon the phenomenon of marital rape. A suit was filed by a wife against her husband claiming that he forced her to have non-consensual sex with him on several occasions. These acts mentally devastated her. He even used to torture her by indulging into carnal and oral intercourse. The applicant’s side argued that the only defense which can be made available is Section 498-A of IPC as marital rape does not constitute an offence in India. On the other side, it was argued that wife was continuously mentally and physically tortured by her husband irrespective of her consent. It violated her dignity and bodily integrity by virtue of Article 21, 14 and 19. Marriage cannot validate forced sexual intercourse with any female as she has her own individuality and conscious.
The dilemma which arose in front of Court was whether Husband can be prosecuted under section 376 (rape) and 377 (unnatural sex) of IPC, 1860. The issue revolved around the right of a wife to initiate proceedings for marital rape against her spouse. The Court considered the situation as unfavorable in matters of married women. According to the current legal scenario of Country, a wife gives implied consent to Husband to have sexual intercourse with her by virtue of being in bond of marriage. He cannot be prosecuted under Section 376 and 377 as sexual acts with wife after marriage is considered as his right. It automatically asserts that a wife has no say in matters of intimacy and her position is inferior to that of her partner. Any marital relation cannot provide unbridled powers to the husband to destroy peace of a woman.
This notion of marital rape has been normalized and converted into automatic consent. The law is such that it itself positions status of a woman as a chattel. No one should be given any right to violate another person’s autonomy, mental and bodily dignity. It is a matter of urgency and legislature should delve deep into the issue of marital rape which is not ‘normal’ scenario but a gross violation of fundamental right. Government should pay adequate attention to this problem and fill the gap of inequality between genders.
