Marital Rape: Legal Lacunae and Need for Reform

Introduction

Rape, derived from the Latin word “rapio,” meaning “to seize,” refers to the act of sexual intercourse with a woman without her consent, often involving force, coercion, or fraud. It is a gross violation of a woman’s dignity and autonomy. The Supreme Court of India has described rape as a “deathless shame” and a “crime against human dignity.” It is not only a physical assault but also an assault on the soul.

In our society, when the term “rape” is mentioned, the general assumption is that the perpetrator is a stranger. Rarely does anyone consider that a husband can rape his wife. Even women often struggle to believe that they can be victims of marital rape. The prevailing notion is that marriage grants a husband conjugal rights, implying that a wife has no autonomy over her body. This perspective not only negates the concept of consent within marriage but also perpetuates the archaic belief that a woman is her husband’s property.

Understanding Marital Rape

Under Indian law, rape is defined in Section 375 of the Indian Penal Code (IPC), which describes it as any act of penetration against the will or consent of a woman. However, an exception to this law states that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape.” This exception, commonly referred to as marital rape, effectively provides husbands with a license to commit sexual violence against their wives without legal consequences.

The origins of this exception can be traced back to Sir Matthew Hale’s statement in History of the Plea of the Crown: “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife has given herself up in this kind unto her husband, which she cannot retract.” This archaic doctrine assumes that a wife’s consent to marriage equates to irrevocable consent to sexual activity, denying her the right to refuse her husband.

Doctrine of Coverture

The doctrine of coverture, rooted in common law, treated women as their husbands’ property. According to this principle, a married woman’s legal identity was merged with that of her husband, rendering her incapable of owning property, entering contracts, or making legal claims independently. This regressive doctrine has contributed significantly to the persistence of marital rape as a legally unrecognized crime.

International Perspectives

Globally, many countries have recognized marital rape as a crime. Poland was the first to criminalize it in 1932, followed by Australia in 1976 during the second wave of feminism. New York’s Court of Appeals struck down the marital rape exception in 1984. Closer to home, Nepal criminalized marital rape in 2002. Canada and South Africa repealed similar exceptions in 1983 and 1993, respectively.

Legal Framework in India

India has enacted several laws to protect women’s dignity, such as the Domestic Violence Act (2005) and the Protection of Women from Sexual Harassment Act (2013). However, marital rape remains absent from the legal framework. While the Justice Verma Committee, formed after the 2012 Nirbhaya case, recommended abolishing the marital rape exception in Section 375 of the IPC, no substantive action has been taken. In 2017, the Supreme Court ruled that “rape committed within a marital relationship does not constitute an offense.”

Regressive remarks from influential figures further perpetuate this mindset. For instance, Nagashiva Rao, a former CBI director, questioned whether prosecuting husbands for marital rape would undermine the institution of marriage. Similarly, the Karnataka High Court has stated that a husband may seek divorce if his wife refuses to have sex, reinforcing the idea of marriage as a license for sexual coercion.

Societal and Psychological Impact

Surveys reveal the alarming prevalence of marital rape in India. The International Men and Gender Equality Survey (2011) found that one in five Indian men forced their wives into sex. According to the United Nations Population Fund, more than two-thirds of Indian married women reported being beaten or coerced into sex by their husbands.

Victims of marital rape often suffer from clinical depression, anxiety, low self-esteem, and chronic psychological trauma. In rural areas, women are particularly vulnerable due to lack of awareness and societal pressure to tolerate abuse as a part of marriage. They are frequently trapped in abusive relationships, believing that their suffering is their fate.

Why Marital Rape Should Be Criminalized in India

Breach of Fundamental Rights

Marital rape violates Article 14 of the Indian Constitution, which guarantees equality before the law. By excluding married women from the protection against rape, the law discriminates based on marital status. It also contravenes Article 21, which ensures the right to life and personal liberty. The Supreme Court has recognized sexual violence as a violation of a woman’s right to privacy and bodily autonomy.

Gender Equality and Empowerment

Criminalizing marital rape is essential to challenge the patriarchal mindset that treats women as property. It will also encourage more women to stand against sexual violence, fostering a culture of consent and mutual respect within marriages.

International Commitments

India is a signatory to international conventions like the United Nations Declaration on the Elimination of Violence against Women, which defines violence as any act likely to result in harm or suffering to women, whether in public or private life. Criminalizing marital rape is imperative to align India’s laws with global standards.

Conclusion

Marriage should symbolize mutual respect and partnership, not a license for sexual exploitation. In Hindu law, marriage is considered a sacred bond. It is time to uphold this principle by educating men to view their wives as equals, not as chattel. Criminalizing marital rape is a necessary step toward ensuring gender equality and protecting the dignity of women in India.

Reference(s):

^[1] Bharatiya Nyaya Sanhita, 2023, section 63

^[2] Indian Penal Code,1860, section 375

^[3] SW v. The United Kingdom, [2000] ECHR 345.

^[4] Mukesh Singh v. State of NCT of Delhi, (2017) 7 SCC 1.

^[5] The Constitution of India, Article 14

^[6] State of Karnataka v. Krishnappa, (1970) 2 SCC 489