This article has been written by Soumali Roy, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.

Introduction

Marital rape constitutes a husband forcing his wife into having sex without her proper consent. Rape has been defined under section 375 of the Indian Penal Code, 1860 as a sexual intercourse by a man with a woman:

• Against her will,
• Without her consent,
• By forcefully obtaining consent,
• By obtaining consent by misrepresentation or fraud,
• By obtaining consent while she is in an intoxicated state, or is not of sound mental health.

Having sexual intercourse with a woman when she is under 16 years of age, no matter with or without her consent will be considered Statutory Rape. Therefore, a quintessential ingredient to prove the crime of rape is the absence of consent. But an exception to section 375 completely overshadows this requirement. It says that if a man has sexual intercourse with his own wife and the wife is not under 15 years of age, then that won’t be considered as rape. As the law stands, a man is completely immune from prosecution under the charges of rape if he commits the same with his wife. 

The Supreme Court of India and numerous High Courts are swamped with writ petitions challenging the constitutionality of this exception, and in a recent landmark judgment, the Supreme Court criminalized forceful sexual intercourse with a wife between fifteen and eighteen years of age which I have further discussed in the article.

It’s ironic that in a country where rape is considered one of the most heinous crimes, decriminalizes the same if there are marital ties between the victim and the perpetrator. This is often called the ‘marital rape exception clause’. It was stated by Sir Matthew Hale that “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 hath given herself in this kind unto her husband, which she cannot retract” The Indian laws permit the husbands to have non-consensual sexual intercourse with their wives on the notion of “implied irrevocable consent”. There is no such thing as non-voluntary sexual intercourse between a husband and a wife. Marriage provides an open license to the husband to engage in sexual intercourse with his wife anytime he feels like it. 

The UN Committee on Elimination of Discrimination Against Women (CEDAW) in 2013 and the JS Verma committee set up after the protests over the Nirbhaya gang-rape case on December 16, 2012, recommended that marital rape must be criminalized by the Indian government. Marital rape has been impeached in over 100 countries yet, sadly, India is one of the few 36 countries where marital rape is still not criminalized.

Marital rape exception: a violation of basic fundamental rights

The marital rape exception infringes Article 14 and 21 of the Constitution of India which guarantees right to equality and equal protection, and of the right to life and personal liberty respectively because of the bizarre distinction between married and unmarried women which is used as a pre-requirement for addressing rape. The above exception is arbitrary and unreasonable. Women are classified on the basis of their marital status, acting as a precondition to qualify for rape. Consent plays no part in matters of domestic violence, then why are the rape laws dependent on a woman’s marital status. It is beyond belief that a woman would willingly concede to domestic violence. 

Similarly, it is illogical to believe that a married woman would willingly consent to forced sexual intercourse after marriage. There is a need to abolish the marital rape exception. A marital rape exception recoils behind the argument that a marriage union is formed on the underlying principle of assumed consent. However, a woman is not made to renounce her sexual rights at the time of her wedding.

History of the anomaly of marital rape

18th century English law had a set of rules where the wife was considered being dependent on her husband, incapable of independent existence. Husband and wife were marked as one entity, and all the rights of the wife (including her sexual rights) were subsumed by those of her husband. Exception 2 of section 375 was a result of these blanket rules that arose in 18th century English law. 

The husband was the master to the wife and enjoyed privileges over her body and could not be fathomed for raping his wife. Women were treated like chattel by their husbands. In 18th century England, women were confined to the domestic sphere, and the state ensured that they remained dependent on their male counterparts. It is strange to presume that this still applies to modern day India in the 21st century where women have become individualistic and capable of giving assent. Women are no longer dependent. They are independent citizens under law.

Landmark judgements on marital rape

Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2018 SCC OnLine Guj 732

The Court examined the question: whether a husband forcing his wife to indulge in oral sex would amount to rape punishable under section 376 of the IPC?

The views of the court were that the marital rape has still not been criminalized in our country as the Parliament fears that it may destabilize the institution of marriage. An unprincipled wife may use it as a powerful tool or weapon to torment her husband by filing false and frivolous complaints against him. But there are safeguards in the criminal justice system to spot and inspect fabricated or erroneous marital complaints, and any person who institutes erroneous and spiteful charges can be made answerable under law. Marital rape cannot be ignored just because of this fear. Indian laws give women the right to life and liberty, but not her body, within her marriage. Assault by a husband on his wife would be constituted as an offence under the IPC but if the same husband forces his wife to have sexual intercourse, he would be liable for assault but not for an offence of rape only because there is a valid marriage.

The court discussed three kinds of marital rape to be generally prevalent in the society:

• Battering rape: This is a type of marital rape where women experience both physical and sexual violence in the relationship in many ways. Some occasions are those where the wife is battered during the sexual barbarity, or the rape may follow a physically brutal episode where the husband wants to make up and pressurizes his wife to have sex against her will. In most cases, the victims fall under this stated category.
• Force only rape: In this type of marital rape, husbands use only that amount of force, as it is required to pressurize their wives. In such cases, battering may not be an attribute, but women who deny sexual intercourse usually have to face such assaults.
• Obsessive rape: In obsessive rape, assaults involve vicious torture and/or perverse sexual acts and are most commonly fierce in form. This type has also been categorized as sadistic rape.

Independent Thought vs Union of India (2017) 10 SCC 800

The issue before the court was whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape?

The exception 2 to Section 375 of the Indian Penal Code, 1860 (the IPC) has a pessimistic view regarding this issue, but the court submitted that sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married. The unnatural distinction is contrary to the spirit of Article 15(3) of the Constitution, and opposed to Article 21 of the Constitution. Child marriages were criminalized by enacting the Prohibition of Child Marriage Act (PCMA) in 2006 as a first step towards this direction, but there was no subsequent amendment made in Section 375 of the IPC, as it existed in 2006, to decriminalize marital rape of a girl child. A girl between 15 and 18 years of age who is married could be a victim of “aggravated penetrative sexual assault under The Protection of Children from Sexual Offences (POCSO) Act, 2012 but she cannot be a victim of rape under the IPC” if she is raped by her husband since the IPC does not recognize such an assault as rape.

The court directed to strike down Exception 2 to Section 375 IPC in so far as it relates to a girl child below 18 years on the following grounds:

1. It is arbitrary, tyrannical and not fair, just, and reasonable. It violates the rights of the girl child by infringing Article 14, 15 and 21 of the Constitution of India;
2. It is discriminatory and infringes Article 14 of the Constitution of India and;
3. It is contrary to the provisions of POCSO Act.

Conclusion

The marital rape exception creates a bizarre distinction between rape of a married and an unmarried girl. It is prime time that the Parliament considers that there can be non-consensual sexual intercourse between a husband and a wife and the same needs to be contemplated as rape. This heinous crime must not be neglected just because of the fear that it may destabilize the institution of marriage. A marriage is a sacred and pious bond between two people that’s why one considers his/her spouse their better half.  It’s a nightmare to imagine how traumatizing a marriage can become if a girl has to face such kind of brutality in it. A girl should be allowed to protect her bodily integrity, even in her marriage. A rape is a heinous crime. A rapist should be treated as a rapist, even though he is the husband of the woman he has raped.

Sources

1. https://www.livelaw.in/marital-rape-not-husbands-privilege-violent-act-injustice-must-criminalized-gujarat-hc-read-judgment/
2. https://www.livelaw.in/book-reviews/what-we-talk-about-when-we-talk-about-rape-155467
3. https://www.shethepeople.tv/blog/marital-rape-grave-offence-criminalised-indian-law/
4. https://harvardhrj.com/2019/01/marital-rape-a-non-criminalized-crime-in-india/
5. https://indianexpress.com/article/opinion/columns/the-impunity-of-marital-rape/
6. https://www.livelaw.in/marital-rape-married-married-separated-unmarried-classifying-rape-victims-unconstitutional-petitioners-submit-delhi-hc-read-written-submissions/
7. https://www.latestlaws.com/case-analysis/sc-case-analysis-on-marital-rape-independent-thought-v-union-of-india-and-another-by-akanksha-yadav/
8. https://indiankanoon.org/doc/87705010/
9. https://scroll.in/latest/929959/plea-seeking-to-declare-marital-rape-a-ground-for-divorce-dismissed-by-delhi-high-court
10. https://indiankanoon.org/doc/185050052/

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