What is marital rape?
Marital rape is the act of having sexual intercourse with one’s spouse without consent. It may not primarily involve any kind of violence and just lack of consent is enough to account an act as marital rape. It comes under the head of domestic violence and sexual abuse. At present, more than 100 countries have criminalized marital rape. But India is among the 36 countries that still hasn’t. Section 375 of the Indian Penal Code (IPC) while vividly defines ‘rape’, it includes all forms of sexual abuse and even includes non-consensual intercourse between a man and a woman. Nevertheless, Exception 2 to this section clearly states that the non-consensual intercourse between a man and his wife provided the wife is not below 15 years of age does not account as rape. This clause thus, provides such a heinous act immunization from trial. The idea behind this is ‘implied consent’ which means that when a man and woman get married, it implies they have consented to sexual intercourse. A wife is presumed to have consented for sexual intercourse when she agrees to get married.
Now the constitutionality of this law can be questioned.
Violates article 14 of the Constitution of India
The Article 14 of the constitution states that the law ensures equal rights to everyone and also equal protection of these rights in front of the law. The State shall not discriminate between anyone. However, this issue of marital rape is violative of this article as it does not provide equal protection to women against their husbands. Now, the IPC dates back to 1862 when the law didn’t consider wives as separate legal units. They were considered to be possessions of their husbands. This is the sole reason that many rights weren’t granted to women until lately. It was due to the colonial influence of British and Victorian Era and thus didn’t consider men and women to be equal. Now, the times have changed and women are recognized by law as individual entities and we have several laws for prevention of abuse against women. However, Exception 2 still lacks in this sense. It provides protection to unmarried women from the abuse but married women are not protected from the same. It is violative of Article 14 as in the case of Buddhan Chauddhary v. State of Bihar, it was held that any classification under Article 14 can be termed as a valid classification provided it is reasonable and subjective to the test of reasonability. There should also exist an objective that it should aim to achieve. Now, this exception cannot be termed reasonable as it fails to meet the objective of Section 375 which is to protect women from sexual abuses. Moreover, it can seem to encourage men to perform such acts on their wives as they are well aware that they can be prosecuted. Moreover, committing the act of rape should have severe consequences regardless of the fact whether the victim was married or unmarried. Thus, this discriminates between married and unmarried women and fails to pass the test of reasonability. This overall violates Article 14.
Violates article 21 of the Constitution of India
Article 21 states that “No person shall be deprived of his life or personal liberty except according to procedure established by law, nor shall any person be denied equality before the law or the equal protection of the laws within the territory of India”. To understand this, let us first closely analyze the scope of the right mentioned in this particular article. In many recent judgements, courts have expanded the scope of this right more than its literal meaning that interpreted it in a way to include right to privacy, health, dignity and safe environment. In more recent judgements, courts have recognized sexual assault as an invasion to a woman’s privacy and thus violative of the same. Now, in the landmark judgement of Justice K.S. Puttuswamy v. Union of India, the court had held that right to privacy is a fundamental right and it includes taking one’s decisions about intimate matters and sexual preferences. Thus, the exception 2 is violative of Article 21 as it refuses the married women their right to privacy. Moreover, it even violates the right to life with dignity. When a husband, forces his wife for intercourse, the woman is harmed both physically and mentally. More severe incidents can even scar their lives for a long mind. Now, this definitely is not what one with the right to live with dignity should experience. More like no one should ever experience this. Thus, this also violates right to life with dignity under Article 21. Altogether, Article 21 of the Constitution of India is violated.
We thus can conclude, how exception 2 can be questioned and should be striked out from the Constitution of India. Several writ petitions are submitted in multiple courts regarding the same but to no effect.
Let us now see what are some arguments that actually favor the fact that marital rape is not criminalized.
It’s contrary to the culture of India
The former Chief Justice of India Dipak Misra said that marital rape should not be criminalized in India as it will result in absolute anarchism in families and India as a country sustains itself because of the family platform that upholds all values. He had further added that due to socio-economic reasons, marital rape cannot be criminalized like in the West. Thus, everyone who was supporting such a cause was said to be blinded by the Western influence. It is believed that India because of the fact that it lacks literacy and other socio-economic norms cannot criminalize marital rape. Majority people will not be able to come to terms with it due to the traditional belief among the masses that a husband cannot perform such an act upon his wife. Moreover, a good wife would have consented forever while getting married and thus the question of non-consensual intercourse doesn’t arise. This can in turn shake the foundation of many marriages as women would realize their rights and would ask for legal recourse. There can be sudden outrage in the country. Now, this argument doesn’t hold significance as not criminalizing marital rape so that marriages don’t fall apart holds little value. It is ironical as Supreme Court itself believes that criminalizing marital rape cannot harm the foundation of marriages. In Independent Though v. Union of India, it was held that “if divorce and judicial separation cannot shake foundation of marriages, criminalizing marital rape will certainly not”.
A woman gives her perpetual consent when getting married
Our society is deeply rooted with the idea that once a woman is married, she has given her perpetual consent while entering matrimony. Thus, the question of husband assaulting wife doesn’t arise. Indian laws date back to 1700s when this was the common belief due to colonial influence. It was believed that a woman while getting married gives her consent which cannot be withdrawn as she entered the matrimony. Another justification for existence of the practice of marital rape is that in 1753 William Blackstone had defended the doctrine of coverture of Common Law and had stated that husband and wife are one ‘legal entity’ and thus the legal existence of the wife is suspended. The doctrine of coverture recognizes wife as the possession of husband and thus sees them as one and the same person in the eyes of the law. Gradually, British Law moved forward and in 1991 it was held that marriage is a relationship of two equals and a wife no longer should be considered as a possession of the husband. However, Indian law regarding marital rape shows little progress in this regard.
Women will misuse other laws in term of marital rape
According to a document submitted in Delhi High Court, it was said that if marital rape was criminalized in India, then wives can get an easy tool to harass husbands as only wives will have a say to the question whether any sexual activity between the couple was consensual or not. Time and again it is argued that women will falsely accuse their husbands whether it was regarding domestic violence, dowry or most recent marital rape. Statistics say that 40% women are victims of marital rape. This clearly shows how grave the situation is and how criminalizing marital rape is the need of the hour. Now even if some women falsely accuse their husbands, then judiciary is there to handle the same. The false accusers will be punished accordingly. As a matter of fact, the women are deprived of legal resources and thus they don’t have knowledge about the law. Thus, it is funny to think that they will misuse the law if they don’t know how to use the law.
Ironically, the argument that criminalizing marital rape is against our culture is contradictory to the argument that women will falsely accuse their husbands and misuse the law.
Some Recent Judgements on Marital Rape-
- In the judgement of Nimesh Bhai Bharatbhai Desai vs. State of Gujarat, it was held that husbands need to be reminded that marriage cannot be a permit to force intercourse with their wives. A husband cannot own the body of his life partner due to reason of marriage. The wife in no case can be subject to ownership either. Even after entering in wedlock, the wife very well has rights to legally give or withdraw consent. Doctrine of Coverture doesn’t apply here. Marital rape is very much prevalent in India and has shaken the trust of women in the institution of marriage. a large chunk of women are victims to this and live with fear due to non-criminalization of this offense. The court therefore held that the accused must be punished for the same.
- On the other hand, in another case the Delhi High Court had completely dismissed the plea to criminalize marital rape. The reasoning given behind this was that court is concerned with interpretation of law and should stick to it. Laws are framed for a reason. This was in contradiction to the judgement given in K. Puttuswamy which had held that right to take intimate decisions including sexual preferences is included in right to privacy and thus since Article 21 is violated, marital rape should be criminalized.
- While framing the ‘right to privacy’ as a Constitutional Right, the Supreme Court observed the decisions on rape, sexual assault and sexual violence to be an unlawful violation of the right to security and life with dignity and an offense against a lady’s modesty. Another such judgement is the case of Suchita Srivastava. Here, the court guided the state to regard the regenerative privileges of the lady totally. These decisions obviously show that the most noteworthy court in the land concluded this privilege from a lady’s entitlement to security, nobility and substantial uprightness entirely.
Marital Rape from the Global Perspective
The offense of marital rape dates back to ancient times since the existence of the institution of marriage. It was always considered as a personal issue until few years back when it actually came outside closed doors. The term marital rape was often considered an oxymoron as from the traditional outlook, a wife was her husband’s property and thus question of rape or any sexual assault doesn’t arise. The first ever rape laws drafted by Lord Hale talked about the ideology of consent but didn’t include the marital view. The sole reason being that a woman gives her implied consent when getting married. At present approximately 150 countries have criminalized marital rape. However, it is often noticed that the offense of marital rape doesn’t seem to attract that attention as it deserves. In a survey of United States of America, it was observed that marital rape cases were not dealt with the same amount of seriousness as that of other sexual offenses. Moreover, such cases are often dealt without any prosecution.
In this 21st century, the outlook of people towards the same is changing globally. The three main reasons can be found for this change in the way people perceive marital rape. Firstly, the importance given to women rights is no longer a fringe view. International Human Rights organizations are recognizing the same and thus undertaking various projects for equality of rights. Secondly, another major event that brought the issue of marital rape to limelight was the increase in the number of HIV cases. This was majorly seen in the African continent. It was observed that women were infected from their husbands and major reason being the inability to refuse intercourse. Lastly, the changing concept of marriage. traditionally, marriage was considered as a relationship primarily between two families to get their kids married for the sole purpose of reproduction. On the other hand, marriage is now considered as an intimate relation between two individuals where both show mutual affection and consent. This gradual change from reproduction to intimacy as the sole purpose of marriage has changed the concept of marital rape to quite some extent.
Several countries in the world have already criminalized marital rape. Most of them have strict laws for the same. In this time of world crisis, when major chunk of people was locked in their homes for the major part of 2020, there was a slight rise in the cases of marital rape. This resulted in various social media awareness campaigns that spread awareness regarding the same and urged the women to come forward from abuse and take a stand. In India, this offense is not criminalized. Indian Legislature amends its laws from time to time but is slow in executing and enforcing these laws. In India, although several laws were passed for protection of women and their rights. The issue of marital rape still remains addressed. This issue was first addressed by the 172nd law commission report. However, it the raised issue was dismissed because of the fear that it will shake the foundation of marriage of many Indians. Advocates often argue that this could lead into women misusing the law and falsely accusing their husbands. However, we cannot ignore the fact that it is violative of the rights mentioned under Article 14 and Article 21. And, anything that refuses people the enjoyment of their rights must be removed from the constitution.
Author: Ishita Khosla, Symbiosis Law School, Pune.
 Buddhan Chauddhary v. State of Bihar, AIR 1955 SCC 191
 Justice K.S. Puttuswamy v. Union of India, (2017) 10 SCC 1
 Nimesh Bhai Bharatbhai Desai vs. State of Gujarat, 2018 SCC OnLine Guj 732
Author: Ishita Khosla from SLS, Pune.