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IS MARRIAGE A CONTRACT FOR LEGAL SEX?

By Divya MB

A contract is an agreement between two or more parties. The two most important elements of a contract are an agreement between the parties and the enforceability. A marriage is a sacrament but it contains the elements of the contract. Forcing one’s own spouse to enter into sexual intercourse without their consent by another spouse amounts to “marital rape”. India is a country in which marital rape is not a criminal offence. Totally 36 countries in the world which criminalises the marital rape. In India, the victims of marital rape have to take recourse under the Domestic Violence Act, 2005. Exception 2 of Section 375 of the Indian Penal Code, 1860 provides for non-criminalisation of marital rape. Marital Rape is a clear violation of Article 14 of the Indian Constitution, 1950 which speaks about “Right to Equality” and Article 21 of the Indian Constitution, 1950 which talks about “Right to Life”. In this paper, let us discuss the status of marital rape in India in comparison to other Countries.

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