Published On: 22nd November, 2024
Authored by: Tanuja Kumari
Faculty of law, Delhi University
Abstract:
Marital rape, defined as non-consensual sexual intercourse by a husband with his wife, remains a deeply contentious issue in many legal systems worldwide. In numerous jurisdictions, including India, marital rape is not recognized as a criminal offense due to entrenched socio-cultural norms and legal provisions that exempt husbands from prosecution for rape within marriage. This legal lacuna perpetuates a patriarchal notion that a wife is the property of her husband, undermining her autonomy and dignity. Despite the evolution of laws protecting individual rights, the exemption for marital rape remains a glaring contradiction in the pursuit of gender equality and justice.
The consequences of this legal gap are profound. Women subjected to marital rape are left with little recourse, often trapped in abusive relationships without the protection of the law. The lack of recognition of marital rape as a crime not only fails to deter the offense but also perpetuates the cycle of violence within the household. Furthermore, it disregards the fundamental human rights of women and violates international obligations under various human rights treaties to which many countries are signatories.
This abstract emphasizes the urgent need for legal reform to address the issue of marital rape. It argues for the removal of the marital rape exemption and the establishment of legal frameworks that recognize and criminalize marital rape, thus providing justice and protection for victims. Reforming marital rape laws is a crucial step towards ensuring gender equality, upholding human rights, and dismantling the societal norms that condone violence against women within marriage.
Introduction
Totally, rape is a serious wrongdoing that disregards a person’s most essential privileges, including the right to life and individual freedom. It is a heinous act that must be condemned and a flagrant violation of fundamental human rights.
Marital rape refers to non-consensual sexual intercourse between spouses, where one partner, typically the husband, forces or coerces the other into sexual activity without their consent. The lack of recognition for marital rape leads to the invisibility of trauma and mental, sexual, and physical health consequences that the survivor endures. Martial rape is considered a form of domestic violence and sexual abuse.[1]
Marital rape isn’t a new idea. Sadly, it’s been something many women suffered since time immemorial. The roots of this notion can be traced back to English common law, where Sir Matthew Hale, a 17th-century English jurist, famously declared that— a husband cannot be guilty of raping his wife because, upon marriage, a woman gave irrevocable consent to sexual intercourse with her husband.[2] This doctrine of implied consent became deeply ingrained in legal systems globally, including in India.
Marital rape: a legal lacunae
The topic in itself is considered to be taboo and has long been a grey area. IPC Section 375 outlines the definition of rape, including seven conditions of consent that, if compromised, would classify the act as rape committed by a man. Exception 2 to Section 375 of the Indian Penal Code clarifies that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not considered rape.”3
The lack of consequences for husbands from allegations of rape and unnatural sex with their wife clashes with the Indian Constitution’s Article 14 which promises equality before
the law. Exception 2 is also clearly violative of Article 19 (1)(a) (freedom of expression) because it prevents a married woman’s right to “assert her sexual agency and autonomy” and Article 21 (right to live with human dignity)4. People have filed Public Interest Litigations (PILs) against this IPC rule, arguing that it’s unfair to married women who face sexual assault from their husbands.
Moreover, the Protection of Women from Domestic Violence Act, 2005 (PWDVA), while providing civil remedies for victims of domestic violence, including sexual violence, does not criminalize marital rape. The act provides for a protection order and monetary compensation but falls short of addressing the criminality of the act of marital rape itself.
As of 2019, 150 countries have criminalized marital rape, recognizing it as a violation of women’s rights. For example, the United States, the United Kingdom, Canada, and Australia have all enacted laws that do not differentiate between rape committed within marriage and rape outside of it. In 1991, the matter of R v. R[3], eliminated the marital rape exemption in the country England and Wales.
These countries have recognized that the institution of marriage does not negate the need for consent in sexual relations.
In South Africa, the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, explicitly includes marital rape within its definition of rape. Similarly, in Nepal, marital rape has been criminalized, with severe penalties for offenders.
These legal frameworks demonstrate a progressive understanding of marriage and consent, acknowledging that consent is a continuous process and that marriage does not grant an unconditional right to sex.
However, under the Indian Penal Code, it only applies to “non-consensual intercourse with a wife aged between 12 and 15 years.”
In 2017, the Supreme Court in Independent Thought v. Union of India 6and in 2022, the High Court in RIT Foundation v. Union of India ruled that the part of Exception 2 to Section 375, which allowed marital rape of minors aged 15-18, was unconstitutional.
This means that the term “15 years” in the exception should now be interpreted as “18
According to the National Family Health Survey from 2019-2021, around 32% of married women experienced some form of violence from their husbands—physical or emotional! Even scarier, about 82% of women aged between 18 and 49 who faced sexual violence said their husbands were responsible. However—here’s the troubling part—90% of sexual assaults go unreported in India! That suggests there could be way more cases than we realize. The Supreme Court did not clarify if it’s really fair to leave married women without legal protection against their husbands. Why should a woman’s age or marital status determine whether she has been raped or not?
The allowance of marital rape also contradicts India’s constitutional principles: India enacted the Protection of Human Rights Act in 1993 and ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in the same year. Furthermore, India was not only a signatory to the Universal Declaration of Human Rights but also played a significant role in its creation, as detailed by Miloon Kothari in the Journal of the Indian National Commission for Human Rights. Nevertheless, India continues to overtly breach the fundamental rights of its women.
The legislative debates surrounding Marital Rape
The first big discussion on this topic came from the Law Commission in its 42nd report[4]. They made two key points:
Firstly, if a couple is judicially separated, the exception clause shouldn’t apply anymore; secondly, they discussed non-consensual acts involving girls aged between twelve and fifteen.[5]
In brief, this report highlighted the presumption of consent that operates when a husband and wife live together and the differentiation between marital rape and other rape, where the former is viewed as less serious. It did not however comment on the exception clause itself, i.e. whether the exception clause must be retained or removed.
The 172nd Law Commission Report addressed the validity of the exception clause in Section 375 of IPC. The Commission rejected the idea of criminalizing marital rape, citing concerns that doing so might lead to “excessive interference with the institution of marriage.” This perspective underscores a tension between recognizing marital rape as a violation of individual rights and preserving the traditional sanctity of marriage. The report reflects a prevailing belief at the time that protecting the institution of marriage was paramount, even at the cost of not fully acknowledging the issue of marital rape.[6]
However, the Justice Verma Committee, In its report on “Amendments to Criminal Law”10 in 2013, recommended that the rape law ought to be amended to delete marital rape exception irrespective of the age of the wife. In March 2013, a Parliamentary
Standing Committee on Home Affairs in its 167th report on the Criminal Law
(Amendment) Bill,2012, observed that if marital rape was brought under the law, it could become a phenomenon that may destabilize the institution of marriage and can use to harass the husband.
Grounds on which the Exception is Retained
In reviewing these government points and various Law Commission reports—there are three big ideas against making marital rape illegal:-
First up is the idea that we must protect the institution of marriage—not mess with it— to keep it sacred (this view pops up often). The second focuses on alternative remedies that are already out there for women within the family and in the law itself such as section 498A of the IPC or through acts like PWDVA, saying criminalization isn’t urgent since other options exist. And the third emphasizes on, If marital rape is criminalized, there is a significant risk of abuse, which is a major concern cited by individuals, legal experts, and advocates for men’s rights. In the case of Arnesh Kumar v State of Bihar, the Supreme Court observed that section 498A has been employed as a weapon by disgruntled wives rather than serving as a shield. [7]
Marital Rape: Examining the Prospective of Indian Judiciary
In India, the justice system’s response to the sensitive issue of marital rape has been inconsistent and chaotic, making it a grave concern.
In Dilip Pandey v. State Of Chhattisgarh, the court decreed that a sexual act by a legally wedded spouse does not constitute rape, even if it occurs without the woman’s consent or under coercion.
The Apex Court has consistently held in numerous cases that the Right to Privacy is constitutionally protected under Article 21[8]. By not recognizing marital rape as a grave form of rape, society, and the law implicitly endorse and legitimize sexual coercion and exploitation. While the Honourable Supreme Court has declared rape to be an act against humanity[9], it has notably remained silent on the issue of marital rape. Moreover, the state lacks robust and stringent measures for women who wish to speak out against sexual spousal abuse, rendering their efforts largely futile.
However, the judiciary has taken some positive steps by recognizing marital rape as a violation of a woman’s fundamental rights to bodily and sexual autonomy. In Nimeshbhai Desai v. State of Gujarat,14 the Gujarat High Court condemned it as a
“disgraceful offence that has undermined the trust and confidence in the institution of marriage,” acknowledging the suffering of a vast number of women due to the noncriminalization of the act.
The Bombay High Court, in Madhukar Narayan v. State of Maharashtra[10][11], stated unequivocally that “No means No, regardless of any fiduciary relationship.”
In Hrishikesh Sahoo vs. the State of Karnataka,16 the court dismissed a husband’s plea to quash rape charges filed by his wife, ruling that the marital rape exemption is outdated and violates Article 14, emphasizing that marriage should not grant men special privileges or license them to act as “brutal beasts” towards their wives while urging the legislature to reconsider the exemption.
Article 2, Explanation 2 of the Medical Termination of Pregnancy Act, 1971, highlights the inconsistency of Exception 2. The Act allows for abortion in cases of rape, acknowledging the severe mental harm it can cause. This provision was invoked in the case of X v The State of Madhya Pradesh. Paradoxically, while the Indian Parliament acknowledges the profound damage caused by marital rape in this Act, it does not criminalize it under the Penal Code.
The Gujarat High Court emphasized in this regard, “that the complete statutory abolition of the marital rape exemption is crucial for demonstrating that dehumanizing treatment of women will not be tolerated and that marital rape is not a husband’s privilege, but a violent act and an injustice that must be criminalized.”[12]
The Delhi High Court’s recent ruling on marital rape presented a split decision on the constitutionality of Exception 2 under Section 375. Justice Rajiv Shakdher found the exception unconstitutional, arguing that it arbitrarily discriminates between married and unmarried women and violates their sexual autonomy, contravening Articles 14, 15, 19(1)(a) and 21 of the Constitution. In contrast, Justice Hari Shankar upheld the exception, asserting that sexual relations within marriage are sacred and that the concept of marital rape contradicts the institution of marriage.[13]
Conclusion
Marriage is the union of two individuals who mutually respect each other. Marital rape, a severe form of sexual assault within a family, often goes unreported due to the nature of the act and issues related to the secrecy of relationships, patriarchal norms, and economic dependence. The legal system, influenced by patriarchal views, often overlooks the plight of these women, failing to recognize marital rape as a crime.
The Supreme Court has criminalized the rape of a minor wife and proposed legislative changes to outlaw child marriages from their inception. However, adult spouses have not received the same judicial empathy, and marital rape remains unrecognized by the Supreme Court. The narrow and outdated definition of rape, which includes a marital exemption, effectively provides a loophole for sexual violence perpetrators, leaving the pursuit of justice unfulfilled.
Reform is urgently needed to ensure that all women, regardless of their marital status, are afforded the same legal protection against sexual violence. Criminalizing marital rape is not just a legal necessity; it is a moral imperative. It would signal a commitment to upholding the dignity and autonomy of women, recognizing their right to consent, and protecting them from violence within the sanctity of marriage.
References:
[1] https://en.wikipedia.org/wiki/Marital_rape
[2] Sir Matthew Hale, Historian Placitorum Coronae: The History Of The Pleas Of The Crown 3 The Indian penal code, 1860, Exception to section 375
[3] Anonym, “Marital Rape”, retrieved from http://en.wikipedia.org/wiki/Marital_rape on March 2nd, 2012. 6, (2017) 10 SCC 800: AIR 2017 SC 4904.
[4] Law Commission of India, Indian Penal Code, Report No. 42 (June 1971), available at http://lawcommissionofindia.nic.in/1-50/report42.pdf(last visited on December 15, 2017
[5] Id.
[6] Law Commission of India, Review of Rape Laws, Report No. 172 (March 2000), available at http://www.lawcommissionofindia.nic.in/rapelaws.htm (last visited on February 6, 2016). 10 Justice J. S. Verma Committee, Report of Committee on Amendments to Criminal Law.
[7] (2014) 8 SCC 273 (India).
[8] The chairman, Railway Board v. Chandrima Das, AIR 200 SC 980.
[9] Bodhisattva Gautam v. Subhra Chakraborty, SC 922(AIR 1996) 142018 SCC OnLine Guj 732
[10] AIR 1991 SC 207, (1991) 1 SCC 57
[11] SCC OnLine Kar 371
[12] Express News Service. Marital rape an injustice, must be Criminalised: Gujarat High Court. The Indian Express. April 3, 2018. https://indianexpress.com/article/india/marital–rape an–injustice–must–be–criminalised–gujarat–high–court–5121161/ (Accessed February 5, 2022)
[13] RIT Foundation v. Union of India, 2022 SCC OnLine Del 1404..,
