This article has been written by M.N. Kaushika, a student of 4th year from the School of Excellence in Law. In this article the author discusses about the Marital rape exclusion clause violates the Article 14 and 21 of Indian Constitution.
“EXCEPTION TO SECTION 375 – Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”.
The cardinal ideology underlying marriage is to regularise the sexual instinct of an individual. Howsoever does marriage- a social contract confer absolute rights on an individual to enter into non-consensual sexual intercourse towards his wife? Sir Mathew Hale ,Chief Justice in 17th century ,England said ,‘the husband cannot be guilty of rape committed by himself upon his wife ,for by their mutual consent sand contract, the wife hath given up herself this kind unto her husband which she cannot retract’. So is the case in India, Former CJI Deepak Mishra pronounced, ‘I don’t think that marital rape should be regarded as an offence in India, because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values’. Thus the Institution of Marriage bestows absolute rights on the husband to have non-consensual sexual intercourse with his wife forcibly and brutally on the basis of archaic notion ‘implied irrevocable consent’. Thus marital rape is immunised from penalisation.
Constitutionality of marital rape exclusion clause
At the basic outset, any law is valid only if it withstands the test stone of constitutionality. Marital rape exclusion clause violates the fundamental rights of an individual guaranteed under Indian constitution. Preamble, a basic structure of Indian constitution, solemnly resolved to secure to all citizens the justice, liberty of thought and expression, equality of status yet in reality, India is way behind in executing it. Article 14 enunciates equality before law and equal protection of law to all the individual. Howsoever it permits reasonable classification based on rational nexus and intelligible differentia. The state by retaining exception to section 375 in IPC grossly violates article 14 as there is no intelligible differentia or rational nexus in making distinction between a non-consensual forcible sexual intercourse when the perpetrator being third person in one case and husband of the women in other case, criminalising the former offender and securing the later when the psychological trauma of both acts being the same. Marriage did not serve as reasonable classification among women. Further under the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’), it is illegal to have sexual intercourse with a child under the age of eighteen. However, the exception clause of section 375 permits this, in the event a girl is married and is between the ages of fifteen to eighteen. Nevertheless, the apex court took a dynamic move in the Independent Thought v UOI by deleting a part of exception to section 375 by criminalising non-consensual sexual intercourse between a man and his wife if her age is between 15 and 18, thus protecting minor irrespective of she being married or unmarried however not stretching hands to help victim of adult marital rape. Thus in accordance with this case the legislature should bring appropriate changes in IPC and not forbid women’s right subsumed on the basis of marriage.
Article 21 of Indian constitution is given a wide interpretation by way of judicial activism following Maneka Gandhi v Union of India .The term ‘Right to life and personal liberty’ acknowledges the self-determination, bodily integrity, privacy including sexual privacy within itself. Thus article 21 has become the source of many substantive rights and procedural safeguards to the people. Its deprivation shall only be as per the relevant procedure prescribed in the relevant law, but the procedure has to be just, fair and reasonable. The Apex court, in Kartar Singh v state of Punjab held that the procedure contemplated by article 21 must be “right ,just and fair” and not arbitrary ,fanciful or oppressive. In order that the procedure be right, just ,fair ,it must conform to the principles of natural justice. Howsoever not criminalising marital rape solely on the rationale of archaic norm is erroneous and unlawful. In Bodhisattwa Gautam v Subhra Chakraborty, Apex court held that rape is a crime against the basic human rights and the violation of victim’s right to life and dignity, thus violating article 21. Thus there is no real justification in making distinction between the act committed by one’s spouse and a stranger. The Apex court in State of Maharashtra v. Madhkar Narayan opined that every women has the right to sexual privacy and no one can violate this right. Even women of easy virtue or a prostitute have right to say no to have sexual intercourse. This right has to be extended in a progressive way to married women and it is the obligation of state to enforce and protect it. Thus this judgement subsumed right to sexual privacy in article 21 which should not be denied to women on the basis of marriage. An another important purview of Article 21 is that it acknowledges everyone the right to live with human dignity as upheld in Francis Coralie Mulin v. Administrator, Union Territory of Delhi. This aspect clearly gets transgressed using the exception of Section 375 of IPC whenever the Indian women becomes devour of her husband’s lust.
Justification of state in not deleting exception to section 375 from the statute
The major justification is an irrefutable presumption of consent which is presumed to exist from the time the individual enter into marital relationship till the end. Marriage is considered to be a civil contract and consent to sexual activities is thought to be the defining element of this contract. But there is much difference between consent and passive submission as observed by the Bombay high court in Mathura case “Mere passive or helpless surrender of the body and its resignates to the other’s lust induced by fear or threats cannot be equated with the desire or will”. The author cites this case for understanding the difference between consent and passive submission as understood by the H.C despite it is overruled by Apex court.
If you want to read more about Mathura rape case Click Here
Law commission of India in its 172nd report on “Review of Rape laws” contented against criminalising marital rape claiming ‘it would lead to excessive interference within the institution of marriage’. Howsoever Justice J.S.Verma committee constituted for bringing out major amendments in anti-rape laws of country against huge protests and public outcry after December 2012 Nirbaya cas , took an altered stand. The committee published the ‘Report of the Committee on Amendments to Criminal Law’ (‘J.S. Verma Report’) in 2013. Of the major suggestions put forth in this report, one was that marital rape ought to be criminalised and exception to section 375 of IPC need to be deleted enunciating ‘law must specifically state that a marital relationship or any other similar relationship should not a valid defence for the accused, or relevant while determining whether consent existed or not and that it was not be considered a mitigating factor for the purpose of sentencing’. Further The Parliament Standing Committee on Home Affairs in its 167th Report on criminal law amendment bill, 2012 argued against criminalising marital rape stating the “entire family system will be under greater stress and the committee may perhaps be doing more injustice”. The committee reasoned that there is pre-existence of sufficient remedies through which the family could itself deal with such issues and that there underlies a criminal law remedy under section 498A of the IPC and a civil remedy under Protection of women under domestic violence act ,2005. In 2015 the Ministry of Home Affairs in reply to a bill proposed by a Member of Parliament which aimed to criminalise marital rape stated that it “was considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context”. They say the rationale behind this as the “mind-set of the society to treat the marriage as sacrament. The same stand was taken by former Minister for women and child development Maneka Gandhi, further adding lack of education, literacy, poverty, social customs, values as reason for not criminalising inhuman act .This clearly pictures that exception 2 to section 375 is not just an accidental loophole but a clearly mandated intention of patriarchal law framers.
It is unjustifiable to not criminalise non-consensual sexual act under the umbrage of sacrosanct marriage. Marital tie between spouses doesn’t implicit wife has given irrefutable consent for physical relations with her husband whenever he pleases nor that husband can have non-consensual sexual intercourse with his wife. As discussed earlier there is great plethora of resistance for criminalising marital rape from ruling government, legislators and from the apex court. The trouble being to protect the stabilisation of the sacred institution of marriage and prevent potential threat for misuse against men. The agony lies when the Apex court of India which has very clearly condemned “Rape is a deathless shame & the gravest crime against the human dignity” gets blindfolded when the same act is perpetrated within the confines of marriage. Even the former Chief justice of India Deepak Mishra who stood as a pioneer in judicial activism via Shakti Vakini v UOI , Shafin Jahan v Ashokan K.M , Navtej singh Johar v UOI and in Sabarimala case permitting entry of women, etc. is reluctant to criminalise marital rape and has abdicated his duty. Nearly 70 countries have explicit laws criminalising marital rape. Thus it is the need of the hour to raise voice against this deeply ingrained religious and cultural stereotype of male chauvinistic society and to criminalize marital rape in India in accordance with globalization and changing social values to protect ,secure, empower dignity of women in its fullest sense and to safeguard the truest spirit of Indian constitution.
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2 Kesavananda bharati v state of Kerala, AIR (1973)4SCC 225.
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4 AIR 2017 SC 4904.
5 AIR 1978 SC 597
6 M.P .Jain ,Indian Constitutional law, Lexis Nexis,7 th edition, Pg.- 1123
7 (1994) 3 SCC 569
8 Bodhisattwa Gautam v Subhra Chakraborty on 15 December,1995 ,http://indiankanoon.org>doc
9 AIR 1991 SC 207
10 (1981) 1 SCC 608
11 Raveena Rao Kallakuru & Pradyumna Soni, Criminalization of marital rape: Understanding its constitutional,
cultural, legal impacts, nujalawreview.org> 2018/01/04>….
12 Law Commission of India, Review of Rape Laws, Report No. 172 (March 2000), available at
13 Justice J.S.Verma committee report summary| PRSIndia, http://www.prsindia.org>justice-ve…
14 Department related parliamentary standing , cover-167 report –HA,188.8.131.52>reports>co…
15 Government of India ministry of home affairs lok sabha unstarred…MHA, http://mha.gov.in>pdfs.
16 Maneka Gandhi altered stance on marital rape angers activitists ,http://the wire.in
17 Shakti vahini v union of India on 27 th march,2018 Indian Kanoon ,http://indiankanoon.org>doc
18 Shafin Jahan v Ashokan K.M on 8 th march2018 –Indian kanoon, http://indiankanoon.org>doc
19 Navtej singh Johar-Supeme court of …http://www.sci.gov.in>supremecourt
20 Maneka Gandhi tells us marital rape isnot rape at all- Live mint ,http//www.livemint.com>
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