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time that such a comment has been made . Sir Mathew Hale , Lord Chief Justice of England in his History of the Pleas of the Crown ( 1736 ) has said : “ But the husband cannot be guilty of a rape committed by himself upon his lawful wife , for , by their mutual matrimonial consent and contract , the wife hath given up herself in this kind unto her husband which she cannot retract .”
Sadly , nothing much has changed since the repressive 17th century England . In 2014 , a court in Delhi , recently , acquitted a man of raping his wife . It ruled that since the victim was married to the rapist , the attack could not be considered rape . In fact , it said that the act was not even rape . The victim had said that her attacker had drugged and married her in 2013 and then forced himself on her . The rapist ( her husband ) denied the charges . Justice Virender Bhat stated : “ The parties being husband and wife , the sexual intercourse between the two does not come within the ambit of the offence of rape , even if the same was against the will and consent of the victim .”
This judgment reiterates that once a woman is married she doesn ’ t have the right to refuse sex with her husband which is in direct contravention of the principles of human rights . In other words , once married , the husband gets legal sanction to
28 Legacy India | June 2019 have sex with her — consensual or forced .
The National Database on Sexual Offenders contains 4,44,000 entries of rape cases that have been reported till 2018 . But , there are no clear statistics that indicate how many marital rape cases have been filed or reported till now . The fact in itself is enough to show that how marital rape is ignored in our country .
Ajita Sharma , Advocate and practicing lawyer at the Supreme Court says it is discouraging to hear something like this from a prominent person from the judiciary . “ It is discouraging to hear this comment from the former CJI . He shouldn ’ t have said it especially because he is known to be a pro-women judge , though his judgements are not well articulated but the perception is that he is pro-women judge . He has given the judgement on adultery and Sabrimala , so something more was expected from him ,” she tells you .
Sharma says that most women don ’ t even realise that marital rape is a violation of their bodies . “ Most women don ’ t see marital rape is wrong . They don ’ t realise that it is violation of their bodies . They don ’ t consider it equivalent to rape . They don ’ t see it as a crime . But when some women do realise that this is wrong they go to a hospital for treatment of injuries , if any . But still www . legacyindia . in