This article has been written by Syed Raiyyan (1st year of BA.LLB course at Rajiv Gandhi National University of Law (RGNUL), Patiala.)
As the petition to criminalize marital rape remains pending in the Supreme Court, varying judgments by High Courts on the issue have yet again brought it under the limelight. Section 375 of the Indian Penal Code (IPC) defines rape and Exception 2 of this section states “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”. This provision can be traced to the British Administration in India and is rooted in the patriarchal mindset that believes women lose their bodily autonomy to their husbands after marriage. It is unsettling that a principle derived so far back continues to be a part of the Indian penal system despite several calls for change. As the Indian nation endorses the idea of women-led development and strives for gender equality, we mustn’t ignore this affliction that continues to plague our penal system.
A Brief History
The provision for marital rape first emerged under the British legal system through the so-called Hale’s principles. In 1736, in an extra-judicial statement, Justice Mathew Hale is reported to have said, “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.” When the IPC was enacted in 1860, the principle was explicitly provided in Section 375 of the code and since then it has remained part of it.
This principle, however, began to lose ground in its country of origin in the 20th century. In R. v. Miller, Justice Lynskey observed that past judicial statements about an absolute marital rape exemption were not binding and mere obiter dicta. However, it would not be until 1991, in R v. R, that the principle was abolished. In this case, a man was convicted of raping his wife. The decision was challenged. The House of Lords refused to overturn the conviction, observing “Nowadays, it cannot seriously be maintained that by marriage, a wife submits herself irrevocably to sexual intercourse in all circumstances.”
The Court also clarified that this is not the creation of a new offence but “the removal of a common-law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.”
Soon after, in its 205th report, published in 1992, the Law Commission of the United Kingdom examined the laws on marital rape. It proposed a Draft Bill that suggested criminalising marital rape under Sections 2 and 3 of the Sexual Offences Act of 1956. Since then, many civil and common law countries have criminalized marital rape. Today there are only 32 countries that still maintain that marital rape is not a crime. One of them is India.
Marital Rape in India
Rape laws first appeared in India under the Coverture Doctrine during the British colonial rule in 1800. Rape was criminalized as sex without consent or sexual intercourse where consent was taken under false pretence or fear of death. This also included that any sexual activity, consensual or not, between husband and wife will not be considered rape. When the Indian Penal Code was enacted in 1860, Section 375 provided the definition of rape as well as the marital rape exception. The Section includes both penetrative sexual intercourse as well as other forms of sexual activity under its scope. Although the Code does not define “marital rape,” sexual activities between a husband and wife are excluded under Exception 2 of Section 375. Furthermore, it is interesting to note that Section 376B, added in 2013 on the recommendation of the 42nd Law Commission Report, does make it illegal for a husband to have sex with his wife while they are separated.
Despite scrutiny, it was not until 2012 that an official body acknowledged the need to repeal Exception 2. It was the JS Verma Committee that first recommended the criminalisation of marital rape, observing that the exception stems from an outmoded view—that women lose their bodily autonomy after their marriage. However, no heed was paid to these suggestions.
The issue has also not remained outside the courtrooms. In various cases, different courts have provided different opinions on the subject, some showing the path for the criminalisation of marital rape.
In Independent Thought v. Union of India, the Supreme Court raised the age from which the marital rape exception was applicable. The exception under the IPC provides that sexual activity by the husband with his wife would not be considered rape as long as the age of the wife is above 15.
The Supreme Court raised this age from 15 to 18. An important question was whether the court was creating a new offence by raising the age. The court answered this by following a similar reasoning as the House of Lords in 1992.
In Nimeshbhai Bharatbhai Desai vs State Of Gujarat on 2 April 2018, the Gujarat High Court went a step further and observed,
“The total statutory abolition of the marital rape exemption is the first necessary step in teaching societies that dehumanized treatment of women will not be tolerated and that the marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalized.”
In a much more recent case, the Gujarat High Court, while denying bail to the accused, observed that “rape is a rape, be it performed by a man the ‘husband’ against his own ‘wife’.” While noting that marital rape is illegal in 50 American states, three Australian states, and many other countries, it disagreed with the exception for marital rape provided by Section 375 of the IPC (Exception 2). The bench further noted that the United Kingdom itself has abrogated this exception.
All courts, however, have not taken such a liberal approach. In a case before the Allahabad High Court, it was observed that marital rape continues to be an exception under Section 375 of the IPC. In a petition to repeal Exception 2 of Section 375 on the grounds of unconstitutionality, the Delhi High Court, in Khusboo Saifi v. The Union Of India & Anr., refused to strike down the provision. In the split verdict delivered, Justice C. Hari Shankar held that Exception 2 to Section 375 does not violate the Constitution and that the exception is based on an intelligible differentia. This indicates that despite the changing perception around marital rape, courts in many situations continue to follow Exception 2 of Section 375.
It is also worth noting that the recently passed the Bharatiya Nyaya Sanhita, 2023–– the new law replacing the IPC– maintains the status quo. Section 63 Exception-2 of the new law states
‘Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.’
The Nyaya Sanhita has received the president’s assent and will likely come into force with this provision. The law, according to the government, was meant to overhaul the archaic and colonial nature of the Code. Unfortunately, the government did not consider criminalising marital rape a required change.
Grounds for Abolition
Different commentators have cited various legal grounds to challenge the marital rape exception. One of them was given by Justice Shakder in the Khusboo Saifi case, where he held that the exception is violative of Articles 14 and 21 of the Indian Constitution. The reasoning goes that the Constitution allows discrimination only on grounds of reasonable and legitimate differences. It would be wrong to assume that there exists any difference between women, regarding their bodily autonomy, based on their marital status. Marriage is not regarded as an agreement where the woman gives herself to her husband. A married woman has as much bodily autonomy as an unmarried one. Thus, this discrimination between married and unmarried women is unconstitutional and ought to be struck down.
An often-cited argument against the criminalisation of marital rape is that it will threaten the institution of marriage and lead to “excessive interference”. This argument was used by the Law Commission in 2000 to reject the criminalisation of marital rape. In the Nimeshbhai Bharatbhai case, the Gujarat High Court wherein answered this as it held
“It is not true that the private or domestic domain has always been outside the purview of law. The law against domestic violence already covers both physical and sexual abuse as grounds for the legal system to intervene. It has long been time to jettison the notion of ‘implied consent’ in marriage. The law must uphold the bodily autonomy of all women, irrespective of their marital status.”
These grounds provided by judicial bodies highlight the changing perspective on the issue. The new narrative is grounded on the belief that rape is an assault on the bodily autonomy of women, whether married or unmarried.
Impact on Victims
Despite its complexities and perceivable remoteness, the law is not separate from those it seeks to govern. The purpose of any legal system is to protect those it governs. It’s the welfare of the people, their well-being that the law strives towards. If the law fails to perform this objective, it demands reform. In this light, it becomes necessary to understand how marital rape affects the victim and how the penal system leaves them in a position of helplessness and no recourse. In a paper, Nandini Agarwal, Salma M. Abdalla, and Gregory H. Cohen analysed 11 different studies to understand marital rape in India and their impact on the victims. They observed, “Although most of the studies did not exclusively look at marital rape and its impact on the victims, they demonstrated associations between spousal violence, and depression and PTSD.” The qualitative studies analyse captured the impact of marital rape and sexual violence on women more deeply. They revealed that most of the participants experienced poor life quality, suicidal thoughts, loss of interest in and motivation for everyday tasks, and depression and PTSD symptoms. The studies also shed light on the lack of awareness about sexual abuse and the normalisation of domestic violence. Women were made to perform sexual activities against their will, including watching and acting out pornography, touching or exposing their genitalia, forcing anal and oral intercourse, and even being solicited by a spouse, according to the structured interviews done as part of two of the included research.
Going by the marital rape exception, none of these acts are likely to be termed as sexual assault. It is high time this heinous exception is done away with. Legal recognition of these acts is the first step towards their elimination. Legal reforms also pave the way for social changes. Sexual violence against women by their husbands seeks to be normalized. Legal addressal of these issues will help fight these evils and significantly aid in bringing about much-needed social reforms.
The marital rape exception remains a pernicious colonial relic that we refuse to shed. Marital rape has been criminalized by most countries around the world, including the United Kingdom, but unfortunately, India is not one of them. Over the years, Exception 2 of Section 375 of the Indian Penal Code, which prevents prosecution of marital rape, has come under intense scrutiny.
Despite a few setbacks, the overall narrative seems to have shifted. Marital rape is not perceived as an exception to rape anymore. The ‘mutual marital consent’ (which essentially was a complete surrender of the woman to her husband), as defined by Justice Mathew Hale, is not considered a part of marriage anymore. Married women have the same right to refuse to participate in sexual activity with their partner as unmarried women. In this situation it is disappointing, to say the least, that the government, or the Court, has not taken the necessary steps to finally discard this outdated provision.
The Government while enacting the recently passed The Bharatiya Nyaya Sanhita, 2023–– the new law replacing the IPC– had the opportunity to finally lay the issue to bed and do away with the marital rape exception. Yet it has refused to do so.
It must be remembered that a petition over the criminalisation of marital rape remains pending in the Supreme Court and it seems that it rests entirely with the Supreme Court to abolish this anachronistic provision. It is hoped that the Court of last resort does justice and lives up to its role.
  2 Q.B. 282
  UKHL 12
 (2017) 10 SCC 800
 Citation: Agarwal N, Abdalla SM, Cohen GH (2022) Marital rape and its impact on the mental health of women in India: A systematic review. PLOS Glob Public Health 2(6): e0000601. https://doi.org/ 10.1371/journal.pgph.0000601