The Laws on Marital Rape: Much Needed Reform in India

The wife's role has traditionally been understood as submissive, docile and that of a homemaker. Sex has been treated as obligatory in a marriage and also taboo. At Least the discussion openly of it, hence, the awareness remains dismal. Economic independence, a dream for many Indian women still is an undeniably important factor for being heard and respected. With the women being fed the bitter medicine of being 'good wives', to quietly serve and not wash dirty linen in public, even counseling remains inaccessible.

A marriage is a bond of trust and that of affection. A husband exercising sexual superiority, by getting it on demand and through any means possible, is not part of the institution. Surprisingly, this is not, as yet, in any law book in India

The definition of rape codified in Section 375 of the Indian Penal Code ('IPC') includes all forms of sexual assault involving non consensual intercourse with a woman. However, Exception 2 to Section 375 exempts unwilling sexual intercourse between a husband and a wife over fifteen years of age from Section 375's definition of 'rape' and thus immunizes such acts from prosecution.

As per current law, a wife is presumed to deliver perpetual consent to have sex with her husband after entering into marital relations. While unwilling sexual contact between a husband and a wife is recognized as a criminal offense in almost every country of the world, India is one of the thirty-six countries that still have not criminalized marital rape.

The Supreme Court of India and various High Courts are currently flooded with writ petitions challenging the constitutionality of this exception, and in a recent landmark judgment, the Supreme Court criminalized unwilling sexual contact with a wife between fifteen and eighteen years of age. This judgment has in turn led to an increase in other writs challenging the constitutionality of Exception 2 as a whole.

Marital rape is illegal in 18 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia. Rape in any form is an act of utter humiliation, degradation and violation rather than an outdated concept of penile/vaginal penetration. Restricting an understanding of rape reaffirms the view that rapists treat rape as sex and not violence and hence, condone such behaviour.

The importance of consent for every individual decision cannot be over emphasized. A woman can protect her right to life and liberty, but not her body, within her marriage, which is just ironical. Women so far have had recourse only to section 498-A of the IPC, dealing with cruelty, to protect themselves against 'perverse sexual conduct by the husband'. But, where is the standard of measure or interpretation for the courts, of ‘perversion' or ‘unnatural', the definitions within intimate spousal relations? Is excessive demand for sex perverse? Isn't consent a sine qua non? Is marriage a license to rape? There is no answer, because the judiciary and the legislature have been silent.