- The non-criminalization of marital rape in India proves to be a dreadful slur on the dignity and human rights of women.
- Exception 2 of Section 375 of the IPC immunes the husband against the punishments of marital rape.
- Rape of wife under the age of 18 years of age will be considered as marital rape.
- The concept of marital rape is violative of Article 14 and 21 of the Indian Constitution.
In Indian culture, marriages are always considered in high esteem, a sacred bond, a match made in heaven. But even marriages tend to fail sometimes. Among the various reasons of dowry, harassment and so on, marital rape is now a growing issue. Marital rape, the act involving forceful sexual intercourse with your spouse, is an unjust yet not so uncommon practice to degrade and disempower women.
Crimes against women have been there since time immemorial. Apart from harassment, dowry demand, and discrimination, domestic violence has always been a greater part of it. Sexual violence, including rape, comes within the larger ambit of domestic violence, but rape by husbands within marriages is still a shadowy concept in India and exact numbers are still not known. In today’s scenario, where majority of the countries have already criminalized marital rape, India stands one among the only 36 countries where marital rape is still not criminalized.
The patriarchal framework which is prevalent Indian families has constantly considered ladies as unimportant property of her better half or guardian. So, rape was considered as theft of ladies and a wrong against the spouse or guardian. Our legislature has been gravely affected by this belief system and disregards the offence of marital rape by keeping it under the shadow of marriage. Women are tolerating this with no will of their own over their sexuality.
Section 375 of the Indian Penal Code defines rape. It states that a man can be said to have committed “rape” if he has sexual intercourse with any woman without her consent, against her will, when consent has been obtained by provoking fear, without or with her consent when she is less than sixteen years of age or with any woman who is intoxicated or of unsound mind. There is an exception which states that, a man having sexual intercourse with his wife even without her consent, provided she is above fifteen years of age, and cannot be counted as rape. This non-criminalization of marital rape in India immunizes such acts from prosecution.
As per the current law prevalent in India, a wife is presumed to deliver perpetual consent to have sex with her husband just by entering into marital relations. Under the veil of marriage, a man and woman are believed to have given consent. The concept of marital rape in India is the epitome of what we call an “implied consent”.
Several legal amendments have been done in criminal law for the protection of the women, new offences against women have also been brought, but the non-criminalization of marital rape in India still undermines the dignity and human rights of the women.
Doctrine of Coverture: At the time when the IPC was drafted in the 1860s, a married woman was not considered to be an independent legal entity. So, the marital exception to the IPC’s definition of rape was drafted on the basis of Victorian patriarchal norms as they did not recognize men and women as equals, did not allow married women to own property, and merged the identities of husband and wife under the “Doctrine of Coverture.”
Violative of Article 14: Marital rape violates the right to equality enshrined in Article 14 of the Indian constitution. It creates two classes of women on the basis of their marital status. While the exception immunizes unmarried women from the same acts, a married has no other choice but become a victim. Although the Constitution guarantees equality to all, but our criminal law discriminates against women who are getting raped by their own husband.
Section 375 of the IPC: This Section was drafted to protect women and punish those people who are engage in the inhumane activity of rape. But Exception 2 of this Section exempts husbands from getting punished under this. This contradicts the real objective of the Section as the consequences of rape are the same whether a woman is married or unmarried.
Violative of Article 21: The concept of marital rape violates the rights enshrined in Article 21 of the Indian Constitution. This includes the rights to health, privacy, dignity, safe living conditions, and safe environment, among others.
Several judges have commented on this while passing a judgement.
- In the State of Karnataka v. Krishnappa, the Supreme Court held that sexual violence is a dehumanizing act and unlawful intrusion into the right to privacy and sanctity of a female.
- In the Suchita Srivastava v. Chandigarh Administration, the Supreme Court equated the right to make choices related to sexual activity and intercourse with rights to personal liberty, privacy, dignity, and bodily integrity as enshrined under Article 21 of the Constitution.
- In Justice K.S. Puttuswamy (Retd.) v. Union of India, the Supreme Court recognized that the right to privacy is a fundamental right of all citizens. This includes the decision for privacy regarding the ability to make intimate decisions which primarily consist of one’s sexual or procreative nature and decisions with respect to intimate relations.
In all these judgements, the Supreme Court has observed that the right to abstain from sexual activity for all women, irrespective of their marital status, is a fundamental right which is conferred upon them by Article 21 of the Constitution. Thus, forced sexual cohabitation proves to be violative of the fundamental right under Article 21.
Relevant case laws
1. Independent thought vs. Union of India
In this case, the Division Bench judges observed that, forceful intercourse with the wife provided she is below 18 years of age will be amounting to rape but if the spouse is above 18 years, then a non-consensual intercourse with the wife won’t be considered to be rape. Further, Justice Lokur stated that, to maintain harmony with the system of law, Exception 2 to Section 375 of IPC would be read as stating that sexual intercourse with a wife who is not below 18 years cannot be considered as rape. It observed that marital rape of a girl child is effectively nothing but aggravated penetrative sexual assault and therefore it can be punished under the provisions of the IPC. Through this case, Independent Thought has taken a major step to protect the girl child by criminalizing the sexual intercourse with a wife below 18 years. But the court remained silent in the case when the girl is not a minor.
2. Kharak Singh v. State of U.P. ; Govind v. State of Madhya Pradesh, ; Neera Mathur v. LIC etc,
In a series of cases like these, the Supreme Court has held that a right to privacy is inclusive and ensured under extent of Article 21. The Right of Privacy under Article 21 incorporates a right to be allowed to sit unbothered and not aggravated. Any type of intense sex damages the right of protection and sexual security. It is presented that the teaching of marital exclusion to rape damages a wedded lady's entitlement to protection by driving her to go into a sexual relationship without wanting to.
3. State of Maharashtra v. Madhkar Narayan
In this case the Supreme Court has held that every woman is entitled to her sexual privacy and no one can violate her privacy as and whenever he wished.
4. Nimeshbhai Bharatbhai Desai vs State Of Gujarat in 2018
In this case, the Gujarat High Court held that a wife cannot be considered as a chattel, and husband while having sexual intercourse with his wife, is fulfilling his marital duty and not merely using a property. But this must be done with equal dignity that he himself accords. A husband cannot be allowed to violate this dignity by compelling his wife to engage in a sexual act without her consent. Further, this judgement stressed on the fact that the bodily autonomy of all the women must be upheld irrespective of their marital status and urged the legislation to look into the serious issue of marital rape.
In this landmark judgement, it was held that marital rape occurs when the husband thinks that he owns the body of his wife. Such notions cannot be entertained by modern social jurisprudence. The court stressed on the fact that spouses in marriage today must be treated as equal partners. Considering the wife’s body as of your own and committing sexual offence against her wishes is nothing but marital rape. It can diminish the right to privacy which would constitute cruelty. Just because law does not recognize the ground, it does not mean the court can turn a blind eye into it. Thus, the court held that marital rape can be considered as a ground for divorce.
In the United Nations Declaration on the Elimination of Violence against Women, it provided the definition of violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual, or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.”
In 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) suggested the Indian government to take the necessary steps and criminalize marital rape. After the nationwide protest over the gang rape case of December 16, 2012, the JS Verma Committee set up also recommended the same.
If this law is removed, women will be safe in their own house from abusive spouses, can ask for help when needed to recover from marital rape and can save themselves from domestic violence and sexual abuse.
So, is marriage a license to get access to the notion of implied consent of a woman? Think about a woman who is not safe in her own house, who is getting raped everyday by her own spouse. How scare can you think that would be? How horrible she might be feeling? And on top of that, our legal system does not provide any laws against it. Marital rape is still not criminalized. Rape is rape, and that’s it. It is a dreadful offence against humanity. We cannot put any conditions, and exceptions to it. It’s high time that the legislature should take cognizance of this legal infirmity and bring marital rape within the purview of rape laws by eliminating Section 375 (Exception 2) of IPC. People need to raise their voices and our legal system must recognize this ugly reality!