Marital Rape In India: A Need For Criminalisation?

By Harsha Tripathi, Faculty of Law, University of Delhi.




Marital Rape refers to an act of committing sexual intercourse with your spouse without proper consent. It is an act of physical and mental abuse, having physical, sexual, and psychological effects on the victims. While marital rape is recognized as a criminal offense in almost every country in the world, India is one of the thirty-four countries where marital rape is still not recognized as an offense by law or society, rendering the victims of marital rape with a social stigma and no legal remedy. 


The Marital Rape Exception In The Indian Penal Code 


In India, Laws or statutes do not define Marital Rape. Section 375 of the Indian Penal Code, 1860 defines all forms of sexual assault involving non-consensual intercourse with a woman and according to Exception 2 thereto, "sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape. As a consequence, a man having sexual intercourse with his wife, even without her consent, cannot be considered rape under Indian criminal law. Later on, the Supreme Court raised the age from 15 to 18 years while deciding the Independent Thought vs Union Of India Case. 


Moreover, Section 376B stipulates that the punishment for a husband who has sexual intercourse with his wife living separately without her consent would be between two to seven years and a fine. Nevertheless, the punishment for rape prescribed under Section 376 is not less than 10 years and may extend to imprisonment for life. Thus, marital rape is perceived as a less serious offense than rape.


Viewpoint Of Judiciary


Indian courts have displayed conflicting opinions regarding the criminalization of marital rape in different cases. It was noted in Nimeshbhai Bharatbhai Desai v. State of Gujarat (2018), that a wife is presumed to have given implied consent to sexual intercourse with her husband at the time of marriage. In Hrishikesh Sahoo vs. the State of Karnataka (2022), the HC recognized the offense of marital rape while prosecuting the husband for  Rape. 

Though recently Delhi HC gave a split verdict on the question of criminalizing rape within marriage.

Justice Rajiv Shakdher, who headed the two-judge Bench in RIT Foundation v. UOI, struck down the exception to Section 375 of the Indian Penal Code (IPC) as unconstitutional, citing the impugned provision as violative of Article 14. However, Justice C. Hari Shankar dismissed the plea to criminalize marital rape pointing out that the issue of marital rape requires deliberation on different social, cultural, and legal aspects, hence, the legislature needs to carry out any change in the law.


Reasons For Not Criminalizing Marital Rape And The Need To Do So 

The reasons for not criminalizing marital rape in India can be attributed to majorly four reasons: First, a woman gives irrevocable implied consent to sexual intercourse with her husband at the time of marriage. The roots of this can be found in the 17th century when the Chief Justice of the king's Bench, in England stated that a woman had given up herself to her husband at the time of marriage from which mutual matrimonial consent can be concluded. As a result, a husband cannot be guilty of rape committed by himself upon his lawful wife.  While Britain criminalized Marital rape since R v R in (1991) 4 All ER 481 entirely dismissed the concept of irrevocable implied consent for sexual intercourse at the time of marriage. However, India still follows the archaic principle even today. 

Second, when the IPC came into existence in the 1860s, a married woman did not have an independent legal entity. Rather, she was considered to be the chattel of the husband. The idea of a woman's rights and identity being merged with that of her husband comes from this doctrine only. But with time Indian women are considered to be separate from their husbands, having an independent legal identity. Having an exception that does not allow a married woman to have equal protection from rape and sexual harassment as same an unmarried woman has gone against Article 14 of the constitution. In Budhan Choudhary v. the State of Bihar and State of West Bengal v. Anwar Ali Sarkar, the court laid down that the objective of section 375 is to protect women and punish anyone who engages in rape. Exception 2 does not serve the objective of section 375. Providing an exemption to husbands from punishment in case of forceful sexual intercourse defies the purpose of the section.

Third, Marital privacy has been the basis for not criminalizing Marital rape, as whatever happens between spouses is domestic and does not require any interference from the state. The assumption that any kind of interference from the state in such situations destabilizes the institution of marriage, ignores the suffering of many women who have to live in an environment of abuse in absence of suitable legal remedies available to them. It gives a sense of uncontrolled power to men, more importantly in homes where the women are financially dependent on their husbands.

Fourth, the whole idea of not criminalizing marital rape revolves around the fact that it might be misused by a vindictive wife to bring false rape charges against her husband. It will become a means of harassment. But the fair point to be noted is that there are different sections in the IPC that have the potential to be misused, but their existence is necessary to protect the rights of others. There is an apprehension of false charges against husbands in case Marital Rape is criminalized, but the mere existence of a law does not guarantee conviction in any case. It only provides a legal remedy to the victim. More so, giving recognition to marital rape would act as a deterrence for husbands to forcefully enter into sexual relations with their wives. 


Consequences Of Marital Rape On Women 

According to the National Family Health Survey, 32% of ever-married Indian women have experienced spousal physical, sexual, or emotional violence. The lack of any law for Marital rape in India makes the woman suffer the consequences of it. A woman raped by her husband is more susceptible to multiple assaults seeing the proximity. The victim has to live with a constant fear that she might be assaulted again. The emotional trauma of living like this causes serious mental health issues, apart from the physical violence she has to bear. Other than this, the societal ignorance regarding marital rape makes it difficult for women to confess incidents like this because of the fear of being misjudged. 


Conclusion

It is crucial to recognize that marital rape is a grave violation of women's right to life and liberty. It was laid down in Suchita Srivastava v. Chandigarh Administration, that the right to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution includes the right to make choices related to sexual activity. Not criminalizing marital rape makes it difficult for women to act when their dignity is violated by their husbands. It robs them of their choice to give consent for sexual intercourse. Formulating laws around marital rape would require a lot of deliberation with a major focus on the removal of the exception clause of Section 375 and articulating that presumption of consent cannot be the basis of defense for Rape in marriage, but disregarding the urgency of criminalizing Marital Rape in India does not go along with the principles of our Constitution. The most important thing for consideration is that any form of sexual violence can not be given a free pass to exist in society, whether outside or within marriages.


Views expressed are the author’s own, 

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