This blog is inscribed by Anushka Kashyap.
Marriage in Indian society is considered as a sacred institution, a very first foundation of family and civilized society. A lot of evils are associated with marriage such as sexual assault, dowry, cruelty, and other forms of violence. Marital rape is one of such inhume and brutal actions. Marital Rape refers to “unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent. Marital rape could be by the use of force only, a battering rape, or a sadistic/obsessive rape.” Section 375 of IPC which talks about provisions of rape in India provides an exception clause that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape.”
India is one of 36 countries that still have not criminalized marital rape. There is no law regarding marital rape because we believe that “marriages are scared” and having such law will lead to excessive interference to a marital relationship. Now, the question that arises here is, whether an institution gives husband absolute right over the sexual autonomy of wife? Does a woman have to write off all her Rights over her body when she enters into a marriage? The silence in law is creating legal impunity for men who rape their wives considering women as property of the husband.
Women’s status, rights & remedies
Sexual intercourse without consent should be rape irrespective of the relationship between victim and wrongdoer. The consent to marriage doesn’t imply that the husband has the ultimate right over his wife. Since today, when Indian society is endeavoring for equal rights and status for women, breaching upon the sexual autonomy of women in the name of marriage is a breach of their right to equality and dignity. A survey conducted by United Nations in 2013 found that nearly a quarter of 10,000 men questioned in six Asia-Pacific regions, including India admitted to rape their female partner. The belief that they are entitled to sex even without their partner’s consent is a common motivation. This shows that a large section of Indian women is experiencing the stigma that marriage gives the husband a license to have forced sex with his wife.
Further, Article 14 of the Constitution of India, 1950 provides equality before law. Despite the equality provided by the Constitution, the law discriminates against rape victims who have been raped by their husbands. The exception clause (2) of Section 375 of IPC makes a distinction between married and unmarried women. To pass the test for permissible classification- firstly, the classification must be founded on an intelligible differentia, and secondly, the differentia must have a rational nexus to the object intended to achieve by the law in question. The exception fails to fulfill both of these conditions. The main objective of Section 375 of IPC is to punish the man for forced intercourse without the consent of the woman. This differentiation pushes a large section of married women who are victims of rape in a legal vacuum. This distinction limits the scope of Section 375 of IPC and hence, no reasonable nexus sought to be achieved.
Furthermore, in Independent Thought v. UOI, the Supreme Court criminalized the sex with a minor wife less than 15 years of age. The legal age of marriage in India is 21 years for the bridegroom and 18 years for the bride. A girl is not physically and mentally considered capable of marriage below 18 years but sexual intercourse with a minor wife is legal. The same law can prevent a girl below 18 years from marrying but on the other hand, it legalizes sex with a wife between the ages of 16-18 years. The Justice Verma Committee suggested that exceptions allowing marital rape should be removed and marriage or an intimate relationship should not be mitigating factors in reducing sentences for rape.
Moreover, Article 21 of the Constitution of India, 1950 states that the Right to dignified life is a fundamental right intrinsic to the quality of individual life. Rape is a crime against human rights and a violation of Article 21. The most fundamental aspect is that women’s right to privacy, dignity, and bodily integrity is violated by sexual violence. In K.S. Puttaswamy v. Union of India, the apex court stated that “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations”. Every individual has absolute autonomy over his or her body. Every woman is entitled to sexual privacy and such privacy must be free from violation. Forced sexual cohabitation is a violation of the dignity and privacy of women and should not be compromised even in a marital relationship.
The only remedy against marital rape is the Protection of Women from Domestic Violence Act, 2005, and Section 498A of IPC. These laws only cover some aspects of marital rape and aren’t capable enough to satisfy the gravity of the offence. These are only civil remedies and don’t treat the marital offence as a crime in the eyes of law. They aren’t proportionate to the physical and trauma that victims of experience. A husband in India can be put behind bars for abusing or beating his wife but not for raping her. India should widen the definition of rape in its penal code to reflect the realities of sexual abuse experienced by women and to remove the exception of marital rape from the definition of provisions.
Marital rape is a social evil which is a crime itself and majorly hampers the equality and dignity of women. Many countries have criminalized marital rape in recent years. Malaysia has criminalized marital rape in 2007, Turkey in 2005, and Bolivia in 2012. In USA it was criminalized in 1970s and in European countries since 1990s. India, being a signatory to Universal Declaration of Human Rights and Convention on Elimination of All Forms of Discrimination Against Women which advocates the principles that every individual are born free and entitled to dignity and equality before the eyes of laws irrespective of their sex and marital status, therefore has an obligation to criminalize marital rape.
Arguments against Marital Rape
It has been argued that criminalization of marital rape life will destroy the institution of marriage. India is a country where traditions and norms predominate and Indian society treats marriage as sacramental and wife is obliged to silently submit to sex. Such beliefs do not recognize marital rape as a rival of the moral, social, and legal rights of women. Rather, it exploits the rights of a woman to endorse retrospective ideologies. Marriage is not based on power, dominance, and the patriarchal view that the wife is the property of the husband. This is against the principles of justice, equality, and good conscience. Indeed, there is an implied consent to have sexual intercourse when a person marries but this cannot validate the crime of forced sex. The defenders of marital rape also argue that law should not interfere in personal life individuals. Criminalizing marital rape will lead to excessive interference in the marital relationship. The point, however, is that if the violation of rights happens in the marriage then the law has to be brought to the institution of marriage. Criminalizing marital rape, therefore, is not about invading the bedroom, but about ensuring that the principles of consent, dignity, and autonomy, apply as much within the bedroom as outside. The act of letting go the crime just because rape is done by the husband is arbitrary and reasonable.
Further, there is a controversy that the law against marital rape will serve a weapon in the hands of wives to blackmail or file false cases of rape charges against their husbands thereby diluting the institution of marriage. Any law can be misused but that doesn’t mean they should not exist at all. It is the responsibility of the judiciary to examine each case and ensures that there should be no misuse of the law. More attention should be given to rights of women rather than conserving male supremacy in the institution of marriage.
Women’s rights to privacy and bodily integrity are important not only in their demand for equality and dignity but also of cardinal influence to achieve full social and legal equality of everyone in the nation. For this, we need to challenge the societal norms fueling patriarchy. It is not just the women suffers, but society as a whole deteriorates. We should override the societal norms as there is nothing scared in an exploitative marriage. There is an immediate need for “criminalization of marital rape” under IPC and the same should be made a ground for divorce. Attempt to hold such marriages may be one of the objectives of society but it should not be allowed to override the fundamental objective of the law, which is to protect the bodily integrity of a person.
Priyanka Rath, Marital Rape and the Indian legal scenario, India Law Journal, https://www.indialawjournal.org/archives/volume2/issue_2/article_by_priyanka.html.
The Indian Penal Code, 1860 § 375.
India Today Web Desk, Marital Rape in India: 36 countries where marital rape is not a crime, India Today(Mar. 12, 2016, 04:04 PM), https://www.indiatoday.in/education-today/gk-current-affairs/story/marital-rape-312955-2016-03-12.
 Namita Bhandare, Behind closed doors: Marital rape in India, Livemint (May 25, 2015, 02:50 AM) https://www.livemint.com/Politics/b6HcnmMqYadNzWAP05FbEO/Behind-closed-doors-Marital-rape-in-India.html.
Independent Thought vs. Union of India, (2017) 10 SCC 800.
Justice J.S. Verma, Report of the committee on amendments to criminal law, Prs Legislative Research(Jan. 23, 2013),https://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf.
Bodhisattwa Gautam vs. Subhra Chakraborty, (1996) 1 SCC 490.
K.S.Puttaswamy v. Union of India, (2017) 10 SCC 1.
State of Maharashtra vs Madhukar NarayanMardikar, (1991) 1 SCC 57.
AsleshaKadian, It’s time we recognize marital rape for the crime it is, The Hindu Business Line (Mar. 13, 2013), https://www.thehindubusinessline.com/on-campus/its-time-we-recognise-marital-rape-for-the-crime-it-is/article23030899.ece#.
Gautam Bhatia, The arguments made against making marital rape a criminal offence are not valid, Hindustan Times (Apr. 02, 2018, 12:18PM), https://www.hindustantimes.com/analysis/the-arguments-made-against-making-marital-rape-a-criminal-offence-are-not-valid/story-Hsa5Esr4n8hKaCEhiYthHK.html.