Published on 3rd March 2025
Authored By: Palak Mahajan
Guru Nanak Dev University
INTRODUCTION
Marital rape, a combination of two contrasting words, i.e., marital, signifying marriage and rape, a barbarous act, is a debated topic raising serious concerns. Marriage, a sacred samskara, is considered a sacred and spiritual ritual that unites a man and women into a sacred bond, whereas rape is an undignified act that tends to exploit the sexuality of women. Marriage, a pure relation, is abused by some narrow-minded people who considers marriage as a license to do anything even against the wishes of their partners. Marital rape, an inhuman crime, is happening everywhere but is seen very little and listened to very less. Rape is rape irrespective of the relation shared with the person. It is very shocking that, till present, the debate on marital rape is going on and there is no solution obtained.
MEANING
Marital rape is a barbaric act of rape committed by a husband on his wife against her wish or without her consent. It is difficult to define marital rape as such in concrete terms. It is a form of sexual and domestic abuse committed against women.
MARITAL RAPE: A LEGAL LACUNAE
The menace of marital rape can be traced since earlier times. Women were considered as chattel in the hands of their partners. Before marriage she was the responsibility of her father and after marriage, of husband. The concept of the marital rape exception finds it’s roots in the legal doctrine, i.e., doctrine of coverture, which provides women lose their individual legal personality or character upon their marriage, and her personality is merged with her husband.
Section 375 of the Indian Penal Code, 1860 defines the term rape whereas 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.”[1] This clearly shows that the woman was considered as property of the husband and on marriage it was assumed that there exists implied consent.
Till present, the situation is the same, as it can be seen that Section 63 of the Bhartiya Nyaya Sanhita[2], which defines the term rape, contains the same exception as provided in Indian Penal Code Section 375 the only change is of age, i.e., it has been increased to 18 years. The main point that seems to be addressed is that till now the conception of people have not changed although we have become advanced still our thinking is old.
A petition was filed by an NGO in 2017 which challenged the Exception 2 of Section 375 of IPC in case Independent Thought Vs. Union of India, 2017[3]. The age was increased from 15 to 18 years but still marital rape is considered as an offence. This increase in age from 15 to 18 years has been incorporated in Section 63 of Bhartiya Nyaya Sanhita.
Marital rape is a prima facia violation of fundamental rights of women, i.e., Article14 of the Indian Constitution which provides equality before law and Article 21 of the Indian Constitution which provides Right to life and personal liberty.
The Protection of Women from Domestic Violence Act 2005, provides for civil remedies for marital rape, which is considered domestic violence or sexual abuse, but there is no way for victims of marital rape to have criminal proceedings initiated against the wrongdoer. The only remedy provided by the act is in form of protection order and monetary compensation. The main consideration is whether this remedy is a just remedy as it is an equity principle that justice should not be done but seen to be done. Marital rape has been criminalised in more than 100 countries but India is still sitting at the edge of corner wandering to consider whether to criminalize it or not. The need of the hour is to move ahead with time and consider the problem in the light of current prevailing scenario.
MARITAL RAPE- CURRENT LEGAL DEBATE AND JUDICIARY PERSPECTIVE
Hrishikesh Sahoo v/s. State of Karnataka,2017
A complaint was filed by a woman in 2017 against her husband accusing him of multiple offences including rape under Indian Penal Code. A writ petition was filed by the women at the Karnataka High Court while case was pending at the Session Court. The Karnataka High Court has allowed trial against a husband for rape, holding that the marital rape exception was an “age-old…regressive” concept. “A man is a man; an act is an act; rape is a rape, be it performed by a man the ‘husband’ on the woman ‘wife’,” the High Court had said.[4]
Writ Petition by NGO RIT Foundation
A writ petition was filed by the NGO RIT Foundation challenging the marital rape exception at the Delhi High Court. A split verdict was delivered by the Bench comprising Justice Rajiv Shakdher and C. Hari Shankar on 11 May,2022. The exception was stated as unconstitutional by the Justice Rajiv Shakdher whereas the exception was regarded as legal by the Justice C. Hari Shankar. The permission was granted to appeal the decision at the Supreme Court.[5]
A fresh petition was filed by the Dalit activist Ms. Ruth Manorama in late 2022 at the Supreme Court. The petitions were clubbed by the Bench comprising Chief Justice D.Y Chandrachud and Justice P.S Narasimha. The case was unheard for period of 1 year and in January 2024 it was listed for hearing before bench of three judges comprising Chief Justice D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Misra. October 4, 2024 the Government of India filed a 49-page affidavit against the removal of the marital rape exception. The 49-page affidavit was the first time when the Union Government opposed the striking of the exception.[6] The case is still pending before the Supreme Court.
JUSTICE VERMA COMMITTEE
The Justice Verma Committee opined criminalisation of marital rape but the view did not go well with the Standing Committee of Parliament and they were of the opinion that criminalising marital rape would cause stress to Indian Family System.
NATIONAL FAMILY HEALTH SURVEY
As per the National Family Health Survey- 5, 5% of the Indian woman who are victims of sexual violence provides that their husband/former husbands are the perpetrator.
As per the survey, 18% of Indian married women cannot say ‘no’ to their husbands even if they don’t want to have sexual intercourse. As per the data 20% of husbands said that they would get angry and reprimand their wives for refusing to have sex, while 13% argued to not provide financial support. [7]
The condition is so disturbing and alarming which needs a solution.
NEED FOR CRIMINALIZING MARITAL RAPE
The main argument which can be favoured in criminalising the marital rape is that it violates the basic Fundamental Rights of the woman. Article 14 and Article 21 which are considered as the backbone of our constitution and democracy are being directly violated by not criminalizing the menace of marital rape. Also, by not criminalizing the marital rape we are setting the wrong example for the youth who are going to be future of our country.
Martial Rape needs to be criminalised so as to bridge the gap in legal system and remove the loopholes in the Criminal Justice system of India. Justice should be provided equally to everyone without any discrimination on basis of sex. By not giving the women equal access to justice there is a gross violation of their rights. Criminalisation of the marital rape would promote the gender equality and woman empowerment.
Marriage is considered as foundation of society. To ensure that the Indian Society is not laid down on a weak foundation stone it is necessary that the marital laws in relation to marital rape should be framed at earliest possible level.
Further India is a signatory to various International Conventions in relation to woman. So, to meet the necessary requirements of the Conventions it is also necessary that proper framework of law is established for Marital Rape. The need of the hour is to understand the issue and to frame proper laws in relation to the marital rape so that the women’s dignity and autonomy is protected.
CONCLUSION
Marital Rape is a serious problem which needs to be addressed. Allowing of exception 2 of Section 375 is a clear attack on the dignity and freedom of the women. Rape is Rape irrespective of the relation shared with the person. By criminalising the marital rape, a new hope of ray will be given to the women and the fundamental rights of the women will be protected. Legislative reforms should be brought and the narrow perspective of the society should be changed.
REFERENCES
[1] Indian Penal Code,1860, Section 375
[2] Bhartiya Nyaya Sanhita, Section 63
[3] Independent Thought v. Union of India (2017) 10 SCC 800
[4] Ananthakrishnan G, “Centre argues against labelling marital rape as ‘rape,’ says it is ‘disproportionate’ and ‘harsh, The Indian Express (Oct 4, 2024), <https://indianexpress.com/article/india/centre-sc-criminalising-marital-rape-9602198/#:~:text=In%202022%2C%20the%20Karnataka%20HC,the%20High%20Court%20had%20said.> accessed on January 10,2025.
[5] ‘Challenge to the Marital Rape Exception’ (October 16, 2024) Supreme Court Observer < https://www.scobserver.in/cases/challenge-to-the-marital-rape-exception/> accessed on January 09, 2025.
[6]ibid.
[7] ‘DATA STORY: NFHS-5 on Sexual violence’ (May 25,2022) GS SCORE <
https://iasscore.in/data-story/data-story-nfhs-5-on-sexual-violence> accessed on January 10,2025
