This blog is inscribed by Lesha Jain.
In India, Marriage is considered as a sacred institution whereas this institution also includes sexual cruelty or sexual abuse by the husband is known as’ Marital Rape’. It is the form of sexual abuse where husband has committed unwanted sexual intercourse with his wife without her consent. Marital Rape has become the most under reported crimes in India. But the fact is that under Indian Penal Code,1860 the marital rape is not considered as an offence. As per the Rape defined under section 375, IPC the rape is a sexual intercourse committed by a man against the will or without the consent of the woman where marital rape is an exception to this definition. In rape the consent of the woman for the intercourse is must whereas in marital rape no one bothers the consent of the wife. However this section protects the rapist husband from the heinous act committed by him. In fact the woman suffers this heinous act in continuity and no body bothers over it.
In India, there is an punishment for the offence of rape if done by the stranger at same time rape by the husband with his own wife is excluded from the ambit of rape. This shows that woman are the property of their own husband and married woman do not have any right over her own body. The consequences of forceful sex by husband may spoils the health of the wife who with full trust had married to him.
Legal Status Of Marital Rape In India:-
As per Section 375 of the Indian Penal Code, Rape is an offence and the punishment for the rape is defined under section 376, IPC. But the rape by the husband with their own wife is not at all considered as an offence. In Fact marital rape is an exception to constitute the offence of rape under section 375,IPC which states that non- consensual sexual intercourse or undesired intercourse has been committed by the husband of his own wife if she is above the age of fifteen years does not came under the ambit of rape.. In Queen Empress v. Haree Mythee,the court held that the laws regarding rape will not be applicable to a man who have raped his wife aged above 15 whereas in this case the age of the wife was 11 years old so the husband was punished under section 376, IPC. In Saretha v. T.Venkata Subbaih,it was held that marital association do not disturb the right to privacy. Hence there is no remedy with the marital rape woman and no punishment for the marital rape.
Section 498 A of IPC which defines cruelty by husband in order to coerce her to meet any unlawful demand for any property. This provision have limited scope and also marital rape victim do not get easily justice. This shows that provisions of the IPC do not protect the rights of the marital rape victim.
Protections of Woman from Domestic Violence Act,2005 which provides civil remedies to married woman and protect them from domestic violence and other sexual activities including marital rape but it is not satisfactory because this Act considers marital rape as civil wrong not as criminal offence Hence there is discrimination between raped victim and the marital rape victim.
In 42nd Report of the Law Commission of India the justice J.S. Verma Committee Report recommended that the exception allowing marital rape should be removed. It also included that an intimate relationship or marriage should not be a factor to reduce the punishment for rape.
Laws in Other Countries:-
United Nation said that the research shows 4 in 10 countries have criminalized the marital rape and also showed concern that for women home has become the most dangerous place. There were 52 countries who had criminalized marital rape. These countries sought a direction to make the marital rape as an offence. In 1976, Australia was the first common law country who had criminalised the spousal rape under the second wave of feminism. In the two decades before that countries like Norway, Denmark, Sweden and the former Soviet Union has passed the laws in favor of marital rape as criminal offence.
Since the 1980s, the marital rape as immunity has been abolished legislatively from many common law countries including United States ( all 50 states of US between 1970s and 1993 made marital rape as crime), Malaysia, Canada, South Africa, Ireland, Israel, News Zealand and Ghana. In 1984, New York has also criminalized the marital rape.
In 1986, for criminalisation of spousal rape European parliament has also passed Resolution on Violence against Women of 1986 including Belgium, France, Netherlands, Germany and Luxebourg. In 2002, The Supreme Court of Nepal has held the marital rape exception violates the Constitutional rights hence marital rape has become the offence in Nepal.
According to the UN Women’s 2011 report, 52 countries out of 179 Countries had included marital rape as a criminal offence and removed the marital rape as exception from rape laws while remaining countries still do not have criminalized the marital rape.
Marital Rape: Violation Of Fundamental Rights
In earlier times, the woman were treated as chattels and were not given any rights. However, the position of woman has been changed. Now the woman were placed almost at equal footing with man. Therefore, equality exists among husband and wife.
Exception 2 of section 375, Indian Penal Code which grants a man to have forceful sexual intercourse with his wife where she is unable or not giving consent for it violates the fundamental rights of the Constitution of India. Article 14 and Article 21 get infringed by this exception. As Article 14 of the Constitution of India ensures equality to all and protects from discrimination but exception 2 of section 375, IPC discriminates a married woman victim who has been raped by her own husband. This provision has divided the woman in two category married and unmarried woman, in order to provide protection against rape accordingly where unmarried woman has given full protection and married woman were denied for equal protection from rape this creates the violation of Right to equality before law under Article14. In State of West Bengal v. Anwar Ali Sarkar,it was held by the Supreme Court that the classification must be reasonable under Article 14 of the Constitution of India that is classification must have some rational nexus to the objective that the act seeks to achieve. But the exception 2 of section 375, IPC exempts the husband from the punishment of rape which is contradictory to that objective i.e to protect the woman from the rapist.
Exception 2 also violates Article 21 of the Constitution of India, which gives right to life and live with human dignity. Courts have included right to abstain from unwanted sexual activities under right to life and personal liberty. In State of Karnataka v. Krishnappa, it was held that “sexual violence is an unlawful intrusion of the right to privacy and sanctity of a female.” Also held that sexual violence includes non-consensual sexual intercourse. The Supreme Court stated in Suchita Srivastava v. Chandigarh Administration,that Article 21 grants right to make choices regarding sexual activities with right to dignity.
Recently, the Supreme Court in Justice K.S. Puttuswamy v. Union of India,held that right to privacy includes “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.”
“No means No”. If the consent of the woman matters in the sexual activities then the consent of the married woman must also be put on the same footing when husband forcefully demands for sexual intercourse. Exception of marital rape in the definition of rape clearly indicates that in this democratic country now also married woman were the property of their husband. Judiciary should come forward to deal with this problem and provide justice to these marital rape victims and also the legislature should amend the section 375, IPC in order to protect the married woman who were facing such evil or heinous offence that is forced sexual intercourse by their own husband.
- Aman Kumar V. State of Haryana AIR 2004 SC 1497
- Ellen Wulfhorst, June 26, 2019https://www.globalcitizen.org/en/content/un-women-marital-rape-laws/
- http ://www.thehindubusinessline.com/on-campus/-.
- Justice K.S. Puttuswamy v. Union of India AIR 2017 SC 4161 (India).
- KI Vibhute, “Rape within Marriage” in India: Revised‟, Indian Bar Review, 2000, Vol 27, P. 167.
- Queen Empress v. Haree Mythee, (1890) 18 Cal 49
- Peter Foster, India outlaws wife-beating and marital rape, THE TELEGRAPH, Oct 27, 2006
- Report of the Committee on the Amendments to Criminal Law, Jan 23, 2013
- Saretha v. T.Venkata Subbaih,AIR 1983 AP 356
- Shalini Nair, Marital rape a crime in many countries, a7n exception in many more, Indian Express(August 31, 2017 9:39:06 am), https://indianexpress.com/
- State of Karnataka v. Krishnappa, (2000) 4 SCC 75 (India).
- State of West Bengal v. Anwar Ali Sarkar,AIR (1952) SC 75 (India).
- Suchita Srivastava v. Chandigarh Administration (2008) 14 SCR 989 (India).
 2 Aman Kumar V. State of Haryana AIR 2004 SC 1497, (2004) 4 SCC 379
 4 KI Vibhute, “Rape within Marriage” in India: Revised‟, Indian Bar Review, 2000, Vol 27, P. 167.
 (1890) 18 Cal 49
 AIR 1983 AP 356
Peter Foster, India outlaws wife-beating and marital rape, THE TELEGRAPH, Oct 27, 2006
Report of the Committee on the Amendments to Criminal Law, Jan 23, 2013
 Ellen Wulfhorst, June 26, 2019 https://www.globalcitizen.org/en/content/un-women-marital-rape-laws/
 AIR (1952) SC 75 (India).
 (2000) 4 SCC 75 (India).
 (2008) 14 SCR 989 (India).
 AIR 2017 SC 4161 (India).