It has been around 75 years since we achieved the golden dream of independence. Women were an integral part of the Indian freedom struggle and continue to play an indispensable part. Despite this, marital rape, or rape that occurs when the two parties are married is still not criminalized. It is actually an exception to the crime of rape.
Marital rape or spousal rape is the act of sexual intercourse with one’s spouse without the spouse’s consent. The lack of consent is the essential element and need not involve physical violence. Marital rape is considered a form of domestic violence and sexual abuse. Although, historically, sexual intercourse within marriage was regarded as a right of spouses, engaging in the act without the spouse’s consent is now widely classified as rape by many societies around the world, repudiated by international conventions, and increasingly criminalized.
Marital rape has been one of the most hotly debated topics in recent years. This has come been intensely debated in both legal and socio-political contexts, although both are not entirely different. Although the matter has been repeatedly brought in front of the Judiciary and certain decisions do point towards the removal of the said exception, the judiciary has maintained the stance that it remains a matter to be decided by the Legislature.
In India, marital rape exists de facto but not de jure. While in other countries either the legislature has criminalized marital rape, or the judiciary has played an active role in recognizing it as an offense, in India however, the judiciary seems to be operating at cross-purposes.
Types of marital rape
- Force Only Rape– The term describes a husband who uses threats and violence only to the degree necessary to coerce sex. This type of rape usually occurs in relationships where violence is predominantly verbal, and/or in relationships where violence occurs only/primarily in sexual interactions.
- Battering Rape– When beatings and rape are combined, it’s referred to as ‘battering rape’. The sexual abuse is part of the general pattern of psychological, verbal, emotional, economic, and physical abuse.
- Obsessive Rape– The most openly sadistic form of rape is called ‘obsessive rape’. The abuser seems obsessed with sex, and the act itself is violent.
Rape and Exception 2:
The definition of rape has been codified in Section 375 of the Indian Penal Code [IPC] and includes all forms of sexual assault involving non-consensual intercourse with a woman. However, Exception 2 to Section 375 exempts unwilling sexual intercourse between a husband and wife over fifteen years of age from Section 375’s definition of rape and thus immunizes such acts from prosecution. This exception provides protection to such acts from the punishment as prescribed in Section 376 of the IPC.
Indian Legislation and Reports:
As per the Indian Penal Code, the instances where the husband can be criminally prosecuted for an offense of marital rape are as under:
- When the wife is between 12-15 years of age, the offense is punishable with imprisonment up to 2 years of fine, or both.
- When the wife is below 12 years of age, the offense is punishable with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine.
- Rape of a judicially separated wife, an offense punishable with imprisonment for up to 2 years and a fine.
- Rape of a wife above 15 years of age is not punishable.
Justice Verma Committee report (2013) recommended the removal of the exception of marital rape. Fortunately, in November 2017 a division bench of the Supreme Court of India, in the case of Independent Thought v. Union of India read down Exception 2 to Section 375, IPC as being violative of Articles 14 and 21 of the Indian Constitution.
India is one of the thirty-six countries that still have not criminalized marital rape. The Supreme Court and various High Courts are currently working on various writ petitions challenging the legality of marital rape.
In the 42nd Report by the Law Commission, it was recommended that criminal liability should be attached to the intercourse of a man with his minor wife. However, the committee refused the recommendation stating that the husband cannot be guilty of raping his wife of whatever age since sex is a parcel of marriage.
Protection of Women from Domestic Violence Act, 2005 consists the reasonable civil remedies for violence against women which includes marital rape too. Having sexual intercourse without consent can be stated as a violation of dignity and thus can be considered a criminal offense. The act considering this violation as a civil offense has provided few civil remedies such as fines, protection, etc.
Marital Rape is illegal in eighteen American states, three Australian states, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Russia, Poland, and Czechoslovakia. A U.K. case of R v R  changed the law to the extent that it determined that under UK law a man could rape his wife. The courts ruled that even within a marriage, any non-consensual sexual activity is rape.
Provisions of the Indian Constitution:
Part (iii) of the Indian Constitution guarantees all the citizens of India irrespective of their caste, race, sex, religion, place of birth, etc. certain fundamental rights
Rape laws in India are violative of Articles 14 and 21 of the Indian Constitution.
Violation of Article 14-
Article 14 provides for equality before the law and equal protection of laws. For the applicability of Article 14, the two conditions must rely on i.e. Intelligible differentia and Rational nexus. Exception 2 to Section 375 discriminated against married and unmarried women violating their fundamental rights under Article 14 of the Constitution. The law clearly discriminates between married women above the age of 15 and below the age of 15. Married women like men and unmarried women need the protection of the law in their private spheres. Section 375 IPC takes away women’s right to choose and indeed effectively deprives them of bodily autonomy and her personhood. Thus the classification is unnecessary, unintelligible, and violates the mandate of Article 14.
Violative of Article 21-
Article 21 of the Constitution guarantees the protection of life and personal liberty.
Right to live in Human Dignity
In Bhodhisathwa Gautam v Subhra Chakraborthy , SC held that Rape is a crime against basic human rights and is also violative of the victim’s most cherished of fundamental right. A married woman too has the right to live with human dignity, the right to privacy, and rights over her own body. Marriage can in no way take away these rights.
Right to Sexual Privacy
In Justice K.S Puttaswamy v Union of India held the right to privacy as a fundamental right and 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.
PIL to criminalize marital rape
Some are of the opinion that Exception 2 of Section 375 is arbitrary and unfair as Marital Rape is no less than an offense than murder, culpable homicide, or rape per se and this creates discrimination between married and unmarried women so this was challenged in Delhi High Court by petitions. Petitions were of the All India Democratic Women’s Association, RIT foundations, forums to engage men, and many more.
Petitioners contended to declare the said Exception as unconstitutional.
On the other side was an NGO-Men’s Welfare Trust representing the man victimized by the alleged misuse of gender laws who contended that the issue affected a large number of men at the hands of women who file false rape and domestic violence cases. The plea also stated the statistics of the National Crime Record Bureau (NCRB), which said that 62,000 married men commit suicide every year, which is more than double the suicide by women, with the marital issue as the single largest reason.
The PIL had sought that there should be a clear guideline for the registration of cases related to marital rape under framed guidelines and laws, so that accountability, responsibility, and liability of the authorities concerned can be fixed.
Bur HC did not entertain the petition saying that it is the domain of the legislature and not the judiciary. It is very tragic to note the take of the government and the judiciary regarding marital rape which reveals the nature of the patriarchal Indian society.
Criminalization of marital rape
Arguments against Criminalization
- Due to the near impossibility of proving marital rape, its criminalization would only serve as an increased burden to the already overburdened legal system.
- Dissatisfied, angry, vengeful wives might charge their innocent husbands with the offense of marital rape.
- There is implied consent to have sexual intercourse when a woman marries a man.
- Marital rape laws would destroy many marriages by preventing any possible reconciliation.
Arguments for Criminalization
- A study conducted by the Joint Women Programme, an NGO found that one out of seven married women had been raped by their husbands at least once. They do not report these rapes because the law does not support them.
- It may be shown that criminalization of marital rape, serves to recognize rape in marriage as a criminal offense and would have a deterrent effect on prospective rapists’ husbands.
- For women foisting malicious charges, it may be noted that if proving a claim of rape in marriage is hard, proving a fabricated claim will be even more difficult.
- Expression of love through sexual intimacy is not the same-ass forced sex.
- A marriage in which the husband rapes his wife is already destroyed. Withholding justice and denying equal protection for preserving marriages can be an improper goal of the law.
It is high time that India takes this crucial step toward women’s empowerment and criminalizes the offense of marital rape. It is only then can we achieve true gender equality in the country and move towards the goal of national development. All efforts need to be taken to bring in this crucial change and transform the lives of the people affected. Only time shall tell what lies ahead but it’s up to us to make sure that it is for the better.
Written by – Shaurya Mahajan