This article is written by Vaishali Bansal and Soumali Roy, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.
Table of Contents
India celebrates 70 years of Independence and still women of the nation are neglected and are not truly free and independent. Rape per se is an offence against women, violating her dignity and self-respect and when it occurs within four walls of a matrimonial home, it reduces the woman to the status of an object used mainly for sexual gratification. Marriage is a sacred social institution in India. The most unique aspects of the relationship between husband and wife are the legal sanctions attached to their sexual relationship. But, marriage has now become a license to rape. How can husband be given the right to rape his wife? Rape is Rape. How can the institution of marriage be called a sacred one if women suffer physically, mentally and emotionally without any remedy against it. To answer this, the paper has discussed the concept of marital rape, the existing laws in India, the judicial cases, the International scenario and need to review marital rape laws.
Marital rape- An Understanding
Marriage is a legally sanctioned contract between a man and woman. The sexual intercourse between husband and wife is legal. Due to legality of sex, husband gain right over wife which become the sole reason of marital rape. While the legal definition varies, marital rape can be defined as any unwanted sexual intercourse or penetration obtained by force, threat of force, or when the wife is unable to consent. In proper perception, the husband can not be held guilty of raping his wife on account of presumed matrimonial consent to cohabit. However, despite the increasing number of cases of marital rapes in our country, marital rape is not defined in any statute or law. In Indian Constitution, Article 14 talks about Right to Equality but women face infringement in their right in cases of marital rape.
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 offence, in India however, the judiciary seems to be operating at cross-purposes.
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.
Indian legislation on rape
The definition of rape codified in Section 375 of the Indian Penal Code [IPC] 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. Section 376 of IPC provides punishment for rape. According to this Section, the rapist should be punished 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.
As per Indian Penal Code, the instances where husband can be criminally prosecuted for an offence of marital rape are as under:
- When the wife is between 12-15 years of age, offence punishable with imprisonment upto 2 years of fine, or both.
- When the wife is below 12 years of age, offence 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, offence punishable with imprisonment up to 2 years and fine.
- Rape of wife of above 15 years in age is not punishable.
Justice Verma Committee report (2013) had recommended removal of 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 Article 14 and 21 of 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 husband can not be guilty of raping his wife of whatever age since sex is a parcel of marriage.
Protection of Women from Domestic Violence Act, 2005 consist the reasonable civil remedies for the violence against women which includes marital rape too. Having sexual intercourse without consent can be stated as violation of dignity and thus can be considered as a criminal offence. The act considering this violation as a civil offence has provided with few civil remedies such as fine, protection etc.
The Provisions under Indian Constitution
Part (iii) of Indian Constitution guarantees all the citizens of India irrespective of their caste, race, sex, religion, pace of birth etc. certain fundamental rights
Rape laws in India are violative of Article 14 and 21 of Indian Constitution.
Violation of Article 14-
Article 14 provides for equality before law and equal protection of laws. For the applicability of Article 14, the two conditions must be relied on i.e. Intelligible differentia and Rational nexus. Exception 2 to Section 375 discriminated against married and unmarried women violating her fundamental right 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 law in their private spheres. Section 375 IPC takes away women’s right of choice and indeed effectively deprives her 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 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 victim’s most cherished of the fundamental right. A married woman too has the right to live in human dignity, 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.
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:
- 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;
- It is discriminatory and infringes Article 14 of the Constitution of India and;
- It is contrary to the provisions of POCSO Act.
Tracing the history of judicial decisions on infliction of serious injury by the husband on the wife the court in Queen Empress v Haree Mythee, observed that in case of married women the law of rape does not apply between husband and wife after the age of 15, even if the wife is over the age of 15, the husband has no right to disregard her physical safety.
In Emperor v Shahu Mehrab , the husband was convicted under Section 304A IPC for causing death of his child-wife by rash or negligent act of sexual intercourse with her.
In State of Maharashtra v Madhukar Narayan Mardikar , SC referred to the right to privacy over one’s body. It was decided that a prostitute had the right to refuse sexual intercourse. What is sad to know that all stranger rapes have been criminalized and all females, other than wives, have been given the right to privacy over their bodies.
In Sree Kumar v Pearly Karun , HC observed that because the wife is not living separately from her husband under decree of separation, even if she is subject to sexual intercourse by her husband against her will or without her consent, offence under Section 376A IPC will not be attracted.
The Judiciary seems to have completely relegated to its convenience the idea that rape within marriage is not possible or that the stigma of rape of a woman can be salvaged by getting her married to the rapist.
Rather than making the wife worship the husband’s every whim, especially sexual, it is supposed to thrivent mutual respect and trust. How can law ignore such a huge violation of the fundamental right of freedom of any married woman, the right to her body, to protect her from any abuse?
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 offence 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, forum 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 large number of men at the hands of women who file false rape and domestic violence cases. Plea also stated the statistics of 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 marital issue as the single largest reason.
The PIL had sought that there should be clear guideline for 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 a legislature and not 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.
Facts and Statistics (International Scenario)
Marital Rape is illegal in eighteen American states, three Australian states, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia. A U.K. case of R v R  changed the law to the extent that it determined that under UK law it was possible for a man to rape his wife. The courts ruled that even within a marriage, any non-consensual sexual activity is rape.
- Fourteen percent of married women report that they were raped by their spouse. Their percentage probably underestimates the true prevalence of marital rape. (Russell)
- Of reporting women, 23% reported rape and sexual assault as the only abuse in the marriage. (Russell)
- As with rapists in general, the marital rapist is not a ‘crazed sex fiend’. He is generally a man who sees sex as a solution to all the marital problems, as well as the source of validation for masculine identity.
- Marital rape is not always a part of battered women’s syndrome. However, at least half of all battered women are also survivors of marital rape. (Russell)
- Adult female survivors of marital rape are in a higher percentage backup to have been sexually molested as children. (Lystad, Frieze, Russell)
- A national survey found 10% of all sexual assaults cases reported by women involved a husband or ex-husband attacker. (Rape in America, 1992, National Victim Centre)
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, its 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.
What can Help?
For the victim-
- Friends and Family can be a great source of comfort and support.
- Shelters can provide a temporary safe place to stay. Shelter staff also may help by pointing out options to consider.
- Hotlines offer immediate support and referrals to social service agencies.
- Legal aid services can offer low-cost or free legal information or assistance.
- Support groups can be helpful, allowing victims to talk to other people dealing with partner abuse.
In the Community-
- Express support for strong enforcement of current laws and for new legislation to combat domestic and sexual violence.
- Support educational and prevention programs on local, state and national levels.
Criminalization of marital rape
Arguments against Criminalization
- Due to 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 offence of marital rape.
- There is an 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 husband at least once. They do not report these rapes because law does not support them.
- It may be showed that criminalization of marital rape, serves to recognize rape in marriage as a criminal offence and would have a deterrent effect on prospective rapists husbands.
- 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 law.
Suggestions for Reform
- Marital Rape should be recognized by Parliament as an offence under the Indian Penal Code.
- The punishment for marital rape should be the same as the one prescribed for rape under Section 376 of the Indian Penal Code.
- The fact that the parties are married should not make the sentence lighter.
- It should not be a defense to the charge that the wife did not fight back and resisted forcefully or screamed and shouted.
- The wife should have an option of decree of divorce if the charge of marital rape is proved against her husband.
- Corresponding charges in the matrimonial laws should be made.
The continuous exemption of marital rape from the purview of criminal law sustains the assumption of the wife as exclusive property of the husband. It is conceded that changing the law on sexual offences is a formidable and sensitive task, and more so in a country like India, where there is presence of a varied and differentiated system of personal and religious laws that might come into conflict with the new amendments in the statutory criminal law.
Can the state really enter the realm of the home? The answer to this is “yes”. It already does, in the cases of cruelty, divorce and dowry demands, then why leave the most atrocious and heinous crime outside the ambit of the State and laws. Why the area of marital rape remain beyond its pale? The immediate need is criminalization of marital rape under the Indian Penal Code. But, mere declaration of conduct as an offence is not enough. Something more is required to be done for sensitizing the judiciary and the police. There is also a need to educate the masses about this crime, as the real objective of criminalizing marital rape can only be achieved if the society acknowledges and challenges the prevailing myth that rape by one’s spouse is inconsequential.
- Prof. S.N Misra, The Indian Penal Code, Central Law Publications,20th edition, reprint 2017
- Marital Rape in India: 36 countries where marital rape is not a crime, India Today, Mar. 12, 2016
- 1996 AIR 992, 1996 SCC (1) 490
- Wikipedia, The free encyclopedia. Marital rape in
- AIR 2017 SC 4161 (India)
- (1891) ILR 18 Cal 49
- AIR 1917 Sind 42; as cited in supra note 6
- AIR 1991 SC 207, 1991 (61) FLR 688, JT 1990 (4) SC 169, (1991) IILLJ 269 SC, 1990 (2) SCALE 849, (1991) 1 SCC 57, 1991 (1) UJ 109 SC
- 1999 (2) ALT Cri 77, II (1999) DMC 174
- (2013) 382 SCC (2017) (India).
- (1992) 94 Cr App R 216, 3 WLR 767
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