Marital Rape: Does marriage extinguish rape?

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Defined as non-consensual sexual intercourse with one’s spouse, marital rape remains one of the least examined facets of rape in India. The existing rape laws in India expose the darker patriarchal mindset of treating women as their husband’s property, thus rendering them a much inferior standing in a marital relationship. Marital rape has been recognised as a criminal offence in more than 106 countries but India chooses to be one of those 36 countries who prefer to leave this aspect completely untouched.

This article deals with marital rape in present Indian context.

Let’s peek into the historical background, shall we?

The 42nd Law Commission’s report recommended that sexual intercourse by a man with his wife who lives separately, without her consent would not be covered under the ambit of marital rape exception.[1] The Law Commission’s 172nd report however refrained from removing this exception completely as it believed it would be an unnecessary excessive intervention in a marital relationship.  [2]

Years later, the Justice Verma Committee set up in 2013 as a response to the horrific Nirbhaya Gang rape case (2012) strongly recommended to remove the marital rape exception and criminalise the act as it leaves married women devoid of their fundamental rights. However, this recommendation was not paid heed to and was not made a part of the Criminal Law Amendment Act 2013.[3] The said suggestion was disapproved by the Parliamentary Standing Committee on Home Affairs for supposedly 2 main reasons: The first being that it would seriously injure the holy institution of marriage  and second that married women were already entitled to raise their voice against any sexual violence, which qualified as cruelty within marriage.[4]

A private member bill proposing to criminalise marital rape in India was put forward in Lok Sabha in 2015. The bill saw no progress and the government has shown least interest in taking action with regard to this. Two years later, a Public Interest Litigation (PIL) was filed before the Delhi High Court by RIT Foundation (a social organisation) challenging the constitutional validity of the marital rape exception. The Delhi High Court, unsurprisingly argued against the petition. [5] Since then, many petitions have been filed, many debates and discussions have been held but all in vain.

What does the existing law say on marital rape?

According to sec 375 of Indian Penal Code (IPC),

A man is said to commit “rape” if he—

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or

makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina,

the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina,

urethra, anus or any part of body of such woman or makes her to do so with him or any other

person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him

or any other person, under the circumstances falling under any of the following seven


Following this, there are 2 explanations and exceptions provided, out of which the second exception holds significance in the present context. The second exception reads as –

“Sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape.”[7]

After Supreme Court’s landmark judgement in Independent Thought Vs Union of India in 2017, section 375 of IPC saw amendment by the Criminal Law Amendment Act, 2013. The aforementioned exception is now to be read as “Sexual intercourse or sexual acts by a man with his wife, the wife not being under eighteen years of age, is not rape.” This verdict holds significance since the language used in IPC posed a serious question: If marriage of a girl below eighteen years of age is not legal then how can marital rape of a girl between 15-18 age group can even be justified? The SC’s verdict though cleared this ambiguity, preferred to stay silent on the issue of marital rape of women above eighteen years of age.

 What exactly is wrong with the Status quo ?

The decriminalized state of marital rape in India is not only unfortunate but also legally impermissible since it outwardly goes against many constitutional provisions. Here, we’ll discuss them one by one.

Article 14 : The two important elements of article 14 are test of reasonable classification and standard of arbitrariness. The very fact that such a sharp distinction as this has been made on the basis of marital status and not on the basis of consent of the woman itself speaks of the unreasonability of the classification. Moreover, denying women of their right over their own bodies post marriage, under the garb of protecting the sanctity of marriage is way too arbitrary.

The reasonable classification test comprises of dual elements: intelligible differentia and rational nexus to the object sought. It means that if there are certain groups categorised and treated differently, such classification must rely on reason and must have a rational connection to the aim that is sought to be achieved by law through such classification. The classification in this context, as explained above is based on an unreasonable criterion and the distinction between married and unmarried women on such basis fails to prove any rational nexus to the aim of preventing or criminalising rape.

In the Joseph Shrine case, it was observed that, as stated by section 497 that a husband owns the sexuality of his wife is too arbitrary.[8] The illegality of this exception in rape law is set up on the trial of arbitrariness. The arrangement is nonsensical to the extent that it gives invulnerability to married spouses for non-consensual sex, while exactly the same demonstration is condemned if there should arise an occurrence of unmarried persons. It makes a vague and unreasonable distinction between the sexual exercises inside and outside marriage. In doing as such, it not just invalidates the point of rape law, which is to punish the culprit of non-consensual sex, regardless of who they are, yet in addition forces an unbalanced weight on the woman to acquire a lawful cure.

Article 15 : Article 15 of the Indian Constitution prohibits discrimination on grounds only of caste, religion, sex, race, and place of birth. It further states that discrimination can be allowed for the benefit of women and children and those of backward castes; a form of pro-discrimination. The present status of marital rape however doesn’t fit into it.

Considering the present comprehension of article 15, the marital rape exception, which lays on the ideas of order among a couple, exposes the injustice embedded within it. The woman’s status is ascribed to that of a quiet creature latently submitting to the impulses of the spouse, dispossessed of any quantifiable level of independence, which reduces the woman to a mere object inside the conjugal structure. The generalization that she is needed to be inactive and her sexual independence is shortened has effectively been held to be in opposition to Article15 in Joseph Shine.[9] The present state of affairs overlooks the physical and mental integrity of women, hence, depriving them of their equivalent worth. It moreover  denies them of autonomy over their own bodies simply on the premise that they are now married. Such blatant discrimination of married women, eroding their dignity and integrity goes against the spirit and purpose of article 15(1).

Article 19(1)(a) : The expression of sexual longing is important for self-articulation secured under Article 19(1)(a). This expression should essentially incorporate the unhindered assurance of the terms under which such longing might be explained. It gives every individual the option to reject any sexual advancement or to even initiate the same. The freedom of picking when and when not to indulge in sexual activity is necessary to free expression. The same has been upheld in numerous Supreme Court judgements.

In the NALSA case, the SC held that every individual has the freedom to communicate in a way based on their personal preference, and this freedom reaches out from their decision of way of life, sexual inclinations, including sex character.[10] This enlarged scope of Article 19(1)(a) envelopes the subject of decision as freedom of choice, as against its conventional arrangement. This makes autonomy essential to acknowledge them. With regards to conjugal sex, the woman’s entitlement to sexual articulation involves her entitlement to decline sexual offers even if it’s her own husband. The marital rape exception removes the slightest possible chance of such decision being practiced totally to the point that it abuses the centre of articulation, smothering her dignity as an individual, thereby violating Article 19(1)(a).

Article 21 :  Sexual violence especially rape disregards the most fundamental notions of human existence— integrity, dignity and autonomy—and violates the individual freedom or personal liberty revered in Article 21. These values integral to dignified human life have been earnestly expressed in the apex court’s decisions like Puttaswamy and Navtej Johar.

Marital rape exception (MRE) denies married women of their right to lead a life with dignity. Moreover, it deprives them of their independence to choose over their bodies, which are characterizing features of personal liberty. The assurance of Article 21 was interpreted not only as the option to survive, yet additionally an assurance of certain fundamental conditions related with such presence. Through many of its judgements, the SC has greatly widened the scope of this article.[11] In Puttaswamy, for example, human dignity was perceived was an aspect of privacy, which was thus interpreted as a part of liberty.[12] There is no scope of dignity for a woman who’s forced to indulge in sexual intercourse by her husband.

Rape is viewed as a wrongdoing that not only undermines the respect of the person in question, yet additionally has an extreme, malicious effect on her mental peace. While all of these are central in cases of usual rape, the same derogatory act when committed by the spouse often has even a more noteworthy degree of humiliation because of the component of trust rested in the relationship. The effect as now can be perceived, is significantly more serious. Such a hardship likewise in opposition to the assurance of personal liberty under Article 21.

Article 23(1) : This provision of the Indian constitution prohibits forced labour and human trafficking in all forms. Justice Bhagwati in PUDR v Union of India held that “The word ‘force’ must therefore be constructed to include not only physical or legal force but also force arising from the compulsion of economic circumstance which leaves no choice of alternatives to a person in want and compels him to provide labour or service”[13]

This far reaching understanding of the provision suggests that foundational limitations to choose such as the male dominance can now be regarded as illegitimate. In other words, the concept of forced labour can be applied in a situation where significant exercise of free decision is denied because of the existing social structure. The right guaranteed under article 23(1) runs bidirectional; This means that the state must protect the victim from getting exploitered even from the actions of a private person or entity. This is so because article 23(1) is enforceable against non-state parties as well. The court in PUDR case had mentioned clearly that the Article is intended to secure the individual against the State as well as against other private residents.[14] The stubborn stand of the government and the lawmakers in this context makes married women devoid of sexual independence and autonomy.

In the disguise of protecting the sanctity and the holy nature of a marital relationship, the sickening patriarchal mould is being given new shapes by forcing the woman to offer sexual services devoid of her choice. This comprehension of MRE as forced labour reveals the gruesome reality and the pathetic state of married women in a progressive country like India. The State’s agreeability on unevenness of force within the private space, extensively reinforces the argument against MRE.

So, what hinders decriminalisation of MRE ?

Contentions against condemning conjugal assault centre around substantial evidence, or the ‘absence of’ it. To begin with, just because something is hard to demonstrate can’t be a contention to disregard a wrongdoing.

Even in usual rape cases, it is almost always challenging to prove the guilt of the accused. Although we often believe rape to be committed by someone unknown, in most of the cases it has been found to be a familiar person, a relative or acquaintance. Marital rape cases are in fact more serious than rape because it often involves a history of physical and mental abuse enervating the victim of her choice and dignity. An opportune clinical assessment can separate between consensual sex and non-consensual sex.

Another significant point often put forward against decriminalising marital rape is the burden of proof. How can non-consensual sexual intercourse be proved between husband and wife by utilising DNA samples? The appropriate response to this lies in Sheik Zakir versus State of Bihar case, where the apex court ruled that the shortfall of a clinical record would not pose a problem as far as the other evidences are credible.

Indeed, there are numerous pitfalls in the present legal system as far as marital rape is concerned but that is no excuse to the unjust treatment it renders to thousands of women.

On an unending note….

Can marriage deny women of their autonomy and control over their own bodies? Can she be robed of her dignity, choice and personal integrity on the pretext of saving a social institution? Can a relationship be accorded so high a status as to deprive woman of her fundamental rights? In a recent Supreme Court hearing, the CJI observed “If a couple is living together as husband and wife, the husband may be a brutal man but can you call the act of sexual intercourse between them rape?”[15] The accused in the case was subsequently granted protection from arrest.

Rape, in all its forms and in all possible contexts is, rape! Things such as gender, age or marital status should not be a bar in determining rape. The society and we, as individuals are progressing day by day and our laws must be so adapted. NO means NO and it must be respected irrespective of who says it.

[1] Law Commission of India, 42nd Report on Indian Penal Code, 1971

[2]Law Commission of India, 172nd Report on Review of Rape Laws, 2000

[3] MR Madhavan, ‘The Criminal Laws Amendment Related to Sexual Offences’ (PRS

Legislative Research, 29 March 2013)

[4] Standing Committee on Home Affairs, 167th Report on The Criminal Law (Amendment)

Bill, 2012  (2015)

[5] RIT Foundation v Union of India, Written Submission on behalf Respondent (Union of

India) WP (C) No284/2015(Delhi High Court)

[6] The Constitution of India, 1950 (Art 375 of 1950)

[7] Supra note 6

[8] Joseph Shine v. Union of India, 2018 SC 1676

[9] Supra note 8

[10] National Legal Services Authority vs Union Of India & Others, AIR 2014 SC 1863

[11] Bandhua Mukti Morcha v Union of India (1984) 3 SCC 161; Olga Tellis (n 122); Mohini Jain (n 122); Subhash Kumar (n 122).

[12] Justice K.S. Puttaswamy vs Union of India, (2017) 10 SCC 1

[13] People’s Union for Democratic Rights v Union of India AIR 1982 SC 1473.

[14] ibid.

[15] Vinay Pratap Singh vs State of Uttar Pradesh,


Editor: Kanishka VaishSenior Editor, LexLife India.

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