This Article is written by Anushka Sharma (a second-year law student at NALSAR, Hyderabad)
Table of Contents
Marital rape is a harsh reality in India, a reality that has scarred the trust and confidence in the institution of marriage. A large population of women have faced the brunt of the non-criminalization of the practice and still continue to face the same. The Indian Penal Code, 1860 (hereinafter, IPC) makes an exception for marital rape in the definition of rape given in Section 375. This paper highlights the practice of marital rape, the complexities involved and looks at the issue from a human rights perspective. The paper critically analyses the proposals made by different sections of the civil society to make the same a punishable offence by amending relevant Sections in the IPC and further, outlines two important committee reports, the 172nd Report of Law Commission of India and the Justice Verma Committee. Not only that, it analyses the notion of Indian judicial activism on the sensitive issue of criminalization of marital rape and its evolution in contemporary India. It also looks at the present legal stand available for women who face such abuse. Finally, the paper concludes with the opinion of the authors on the said subject.
Marital rape in India is not accorded as an offence under IPC due to the spousal exception clause, but it is recognized as a form of sexual violence that can be defined as non-consensual or forced sexual intercourse by the victim’s spouse. A bill was introduced in the parliament on the Women’s Sexual, Reproductive and Menstrual Rights Bill, 2018 by Dr ShashiTharoor. The issue of marital rape is most debated after the Supreme Court verdict of Independent Thought v. Union of India, where the Hon’ble Court refrained from dealing with the overall aspects of marital rape exception clause of the Penal Code and the approach by the Delhi High Court in dealing with this exception clause. The regressive notion that “A husband can’t rape his wife” is approved in the eyes of law; it is legal sexual intercourse where implications can be unwanted sex, sexual assault, violence etc. the statement made by Sir Matthew Hale in 1678 that a lawful wife, for their mutual matrimonial consent whereby she agreed for all when she agreed for marriage. (Is it Time to Criminalise Marital Rape in India?)
A man can legally rape his wife in India without legal implications, that is, consent is implied if one is in the institution of marriage. India’s rape laws do not apply if a man rapes his wife. A wife is presumed to deliver perpetual consent to all sexual acts by her husband in a marriage. The laws of the country immunize acts of marital rape from prosecution. This comes as a shock, especially when according to a report one in every three women between the age of 15-49 have admitted experiencing some form of coercion and sexual violence from their spouse.
India is one of the 36 countries in the world that does not criminalize the offence of marital rape. While the Courts are flooded with writ petitions demanding criminalization of the offence, the Supreme Court refuses to intervene on account of several exceptions as laid down in the law. The High Courts of the country have different judgments on the matter which makes it even more difficult to reconcile the differences.
Current Status of Marital Rape in India
While the definition of rape encompasses major forms of sexual assault, especially after the New Criminal Law Amendment Act, 2013, marital rape is still a grey area of law that needs the attention of legislators. The present legal provisions talk about marital rape in hushed tones which is soon forgotten.
The constitutionality of marital rape is enshrined in the exception clause in section 375 of the Indian Penal Code, 1860.
1. Exception Clause in Section 375 of Penal Code, 1860:
[Section 375, India Penal Code, 1860] Exception 2 of the IPC, 1860 mentions that “sexual intercourse/sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
The exception clause refuses to take into account any form of sexual abuse by the victim’s husband if the wife is not under the age of fifteen years.
2. Domestic Violence Act, 2005:
[Preamble, Domestic Violence Act, 2005] Domestic Violence Act, 2005 deals with sexual violence in a broader aspect. [Section 3, Domestic Violence Act, 2005] Domestic violence is also named as domestic abuse, battering, family violence or within a couple who may be legally married or their relationship would be in the nature of marriage. It can be seen for both men and women and it includes different kinds of violence like physical violence, sexual violence, emotional violence, economic violence which may be a result of prevailing inequality in the society. The scope of the Domestic Violence Act, 2005 is limited to Domestic Relationships. Marital rapes in this act can be dealt with under various forms of violence. Marital rape may have a history of domestic violence or ill-treatment; non-consensus may cause physical harm to the victim. Thus, a husband in any circumstance is not allowed to induce any form of violence or cruelty against women.
3. Conjugal rights vis-à-vis Concept of Rape:
The sexual autonomy of women should not be compromised with the concept of conjugal rights. People might think that restitution of conjugal rights would have no value in the eyes of law. It is not true; these two are not overlapping or contradictory. The institution of marriage is not such where the right to privacy is lost; it like its creation or dissolution is not similar to contractual relations. It is a sacrament and decree of restitution of conjugal rights is not such which allows marital rape but it is a way and means to protect the marriage institution where the individuals are compelled to share a household. Sexual intercourse is not the main purpose of its decree but it is an effort by the state to save the marriage institution. It is not an imposition by the state to surrender the body and sexual privacy without one’s will.
Justice Verma Committee
The Justice Verma Committee Report is a consequential reaction to rape cases increasing in India and after Delhi Gang Rape (Nirbhaya Case)which compelled the government to change the rape laws in a more stringent manner which would create deterrence. The Criminal law amendment Act, 2013 with effect from 3rd February 2013 was majorly an outcome of the JS Verma Committee report and UshaMehra Committee Report. The JS Verma committee suggested that the concept of hale has been replaced in England by the House of Lords decades back in 1991 where Lord Keith, said, “marriage is in modern times regarded as a partnership of equals and no longer one in which the wife must be subservient chattel of the husband.)The view of marital rape is not different and the nature of rape cannot change with relationships. For comparison within the jurisdictions which allowed criminalization of marital rapes like Canada, Australia, South Africa etc. was taken into consideration. The meaning of consent was addressed where it was said it cannot be implied by the relationship status. Sentencing which is a major issue was also addressed in this report whereby assuming that judges may consider marital rape as a less serious offence with lenient sentences the South African model that is Criminal Law Sentencing Act of 2007 could be adopted wherein sentences of rape a justification for deviation from the statutory minimum punishment requires reasonable justification. The recommendations of the CEDAW Committee were also emphasized. Sensitization, training, awareness should be the first stage where marriage should not be regarded as extinguishing the legal and sexual autonomy of the wife. These recommendations in the light of marital rape in a more elaborate and suitable manner was one of the major contributions where sexual relations were distinguished with sexual activity and sexual violence. This extreme form of sexual violence towards the wife however is still an unenacted part of this report.
205th Law Commission Report (with respect to Judicial Decisions)
- Violative of Article 14 of the Indian Constitution- Exception 2 violates the right to equality enshrined in Article 14 insofar as it discriminates against married women by denying them equal protection from rape and sexual harassment. The Exception creates two classes of women based on their marital status and immunizes actions perpetrated by men against their wives. In doing so, the Exception makes possible the victimization of married women for no reason other than their marital status while protecting unmarried women from those same acts.
- In BudhanChoudhary v. State of Biharand State of West Bengal v. Anwar Ali Sarkar– It was held that the reasonable differentia logic can be applicable only if it has some rational nexus to the objective that it seeks to achieve. But Exception 2 frustrates the purpose of Section 375: to protect women and punish those who engage in the inhumane activity of rape. Exempting husbands from punishment is entirely contradictory to that objective.
- Violation of Article 21 - In The State of Karnataka v. Krishnappa, the Supreme Court held that “[s]exual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.” In the same judgment, it held that non-consensual sexual intercourse amounts to physical and sexual violence. Later, in SuchitaSrivastava v. Chandigarh Administration, the Supreme Court equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.
- In the Puttuswamy judgement, SC has interpreted the right to privacy as a fundamental right.
- Landmark judgment in R v R case 30 years ago, the United Kingdom determined that it was a crime for husband to rape his wife. In the Arnesh Kumar v State of Bihar, the apex court held that criminalising marital rape will be the “collapse of the social and family systems”.
- Francis CorallieMuin v. Union Territory of Delhi– The idea of right to life under Article 21 of the Constitution was highlighted. As per this case Article 21 incorporates the right to live with human dignity and all that accompanies it, to be specific, the minimum essentials of life, for example, adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings. The right to live with human dignity is a standout amongst the most fundamental component of the right to life which perceives the independence of a person.
- The Chairman, Railway Board v Chandrima Das–
The Supreme Court has observed that rape is not merely an offence under the Indian Penal Code, but is a crime against society as a whole.
- BodhisattwaGautam v. SubhraChakraborty–
Court held that rape is to a lesser degree a sexual offense than a demonstration of hostility gone for corrupting and mortifying the ladies. In this manner the marital exception principle is violative of the spouse’s entitlement to live with human dignity. Any law which damages ladies’ entitlement to live with dignity and gives spouse appropriate to drive wife to have sexual intercourse without her will is along these lines unlawful.
- Kharak Singh v. State of U.P; Govind v. State of Madhya Pradesh, ; NeeraMathur v. LIC etc, the Supreme Court has perceived that a right to privacy is intrinsically ensured under extent of Article 21. The Right of Privacy under Article 21 incorporates a right to be allowed to sit unbothered and not aggravated. Any type of intense sex damages the right of protection, sexual security. It is presented that the teaching of marital exclusion to rape damages a wedded lady’s entitlement to protection by driving her to go into a sexual relationship without wanting to.
- Vishakha v State of Rajasthan– Supreme Court extended this right of privacy in working environments also. Further, along a similar line we can translate that there exists a right of privacy to go into a sexual relationship even inside a marriage. Subsequently by decriminalizing rape inside a marriage, the marital exception teaching damages this right of privacy of a wedded lady and is consequently is illegal.
- Independent Thought v Union of India– the Court specifically explained that marriage is personal and nothing short of the Indian State criminalizing marriage itself can destroy the institution of marriage. It said if divorce and judicial separation have not destroyed the institution of marriage, criminalizing marital rape certainly cannot either. Interestingly, the High Court of Gujarat also recently ruled that the non-consensual act of marital rape violates the trust and confidence within a marriage and that marital rape is what has damaged the institution of marriage.
- In a very shocking and apalling judgment from Chattisgarh HC- Sex between married couple not marital rape even if by force- “In this case, the complainant is legally wedded wife of applicant No 1, therefore, sexual intercourse or any sexual act with her by the applicant No 1/husband would not constitute an offence of rape even if it was by force or against her wish,” the judge further said.
- Eisend v. Baird– where the US Supreme Court observed that a marital couple is not a independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. It was further noted that marriage is not institutional but personal – nothing can destroy the institution of marriage except a statute that would make marriage illegal.
172ND LAW COMMISSION REPORT ON REVIEW OF RAPE LAWS
- GautamBodhisatwa v. SubraChakraborty: Interim Compensation was awarded in this case when a man was into sexual intercourse with another woman in an unlawful marriage and tried to get advantage to escape from the burnt of law. In this case, it was held that rape is a crime against Article 21 of a person i.e. right to live with human dignity.
- Independent Thought v. Union of India: In this landmark judgment Marital Rape of a minor was punished but it was also held that in india we still do not recognize criminalization of marital rape or marital rape as an offence. It was held that a wife can initiate the proceedings against her husband under Section 377 for unnatural sex but would be limited to sodomy, buggery and bestiality. Recognition coupled with punishment may deter the husbands from committing such acts.
- Sakshi v. Union of India: This case was a writ perition seeking various amendments to the law relating to rape. The 172nd law commission report contained many recommendations sought in this case, however, the plea to exclude marital exception clause was not in the recommendation.
- State v. Vikash: It was a Delhi High Court Case of 2014 where the issue of marital rape was discussed in detail but ultimately, the court decided that in India it is not the time to criminalise marital rape as 498-A is a sufficient ground to deal with its allied issues. A new legislation is not required neither the removal of exemption clause.
One cannot deny that Marital Rape occurs in our society and that many victims suffer in silence due to a lack of legal protection and widespread sympathy for this horrible crime. Section 375 should be amended to eliminate the exception and therefore criminalise marital rape to assist victims in obtaining justice. These women’s fundamental human rights are abused in the name of marriage and marital duties. The belief and notion that a woman is the husband’s property is fatal to women’s status in India. They are powerless to intervene and are compelled to suffer in silence due to a lack of crucial legal protections. Given that Indian society is encumbered with discriminatory social norms and conventions, the primary reform required is a shift in citizens’ outlook and perspective. Apart from judicial initiation, we seek basic awareness generation. ‘Educating boys and men to consider women as valuable partners in life, in society’s progress, and in achieving peace is just as critical as taking legal action to preserve women’s human rights,’ the UN states. While one of the primary goals of matrimonial laws is to sustain marriages and public confidence in the institution, this goal cannot be achieved at the expense of women’s fundamental and human rights. Women must have the right to self-determination and bodily integrity protection. Thus, denial of justice and protection for marriage purity constitutes a complete failure of the law to safeguard its citizens. The law should discourage cohabitation under duress and should not protect a rapist husband. The consequences of criminalising marital rape in India, on the other hand, cannot be disregarded. If the abuse of Section 498-A is any indication, the process of criminalising Marital Rape will pose a greater threat and have far-reaching consequences. Marital discords frequently culminate in a violent egoistic conflict, with the husband or his family jailed and imprisoned on the wife’s accusation. The complainant occasionally files bogus cases and exaggerates the situation in order to include further members of the family in the complaint, thereby causing nuisance and harassment. Thus, certain segments of society may abuse this provision by using it as a potent weapon against the husband.
Thus, in conclusion, the solution does not lay in refusing to make the necessary amendment out of fear of its misuse by society, but in advocating for a more effective application of the law. The most pressing issue in our culture is its execution, and hence the legislation must be applied with the explicit purpose of safeguarding victims of marital abuse, not only as a tool for harassment. Genuine cases must be distinguished from frivolous ones, and it is the police’s responsibility to conduct thorough investigations. Marital disputes demand the necessary legal relief and protection. The litmus test is whether the aim and rationale for criminalising marital rape are properly understood and whether its abuse makes a mockery of the law.
About the publisher:
 The Indian Penal Code, 1860
§ 375, the Indian Penal Code
Law Commission of India, Reviews of Rape Laws: Some Suggestions, Report No.172
Justice J.S. Verma Committee, Report of the Committee on Amendments to Criminal Law, 66 (January 23, 2013).
Women’s Sexual, Reproductive and Menstrual Rights Bill, 2018
Union of India (2017) 10 SCC 800
World Health Organization, Understanding and addressing violence against women
New Criminal Law Amendment Act, 2013
 supra note 1
Exception 2 of the IPC, 1860
Domestic Violence Act, 2005, §3
Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1.
USHA MEHRA COMMITTEE REPORTCommission Report on the 2012 Delhi Gang-Rape and Murder
[R. v. R.,  4 All ER 481 (484)
The Constitution of India, 1950, Art.14.
The Constitution of India, 1950, Art. 14 Exception 2.
In BudhanChoudhary v. State of Bihar, 1955 SCR (1)1045
State of West Bengal v. Anwar Ali Sarkar,1952 SCR 284
the constitution of india, 1950, art.21.
The State of Karnataka v. Krishnappa,ILR 1994 KAR 89,
SuchitaSrivastava v. Chandigarh Administration(2009) 14 SCR 989, (2009) 9 SCC 1
Arnesh Kumar v State of Bihar(2014) 8 SCC, 273
Francis CorallieMuin v. Union Territory of Delhi, AIR  SC 802
The Chairman, Railway Board v Chandrima Das,(2000) 2 SCC 465
BodhisattwaGautam v. SubhraChakraborty, 1996 SCC (1) 490
Kharak Singh v. State of U.P, 1964 SCR (1) 332
Govind v. State of Madhya Pradesh,1975 SCR (3) 946
NeeraMathur v. LIC, 1991 SCR Supl. (2) 146
Vishakha v State of Rajasthan, (1997) 6 SCC 241
Independent Thought v Union of India, Writ Petition (Civil) No. 382 of 2013
Eisend v. Baird, 405 U.S. 438 (1972)
GautamBodhisatwa v. SubraChakraborty, (1996) 1 SCC 490 : AIR 1996 SC 922.
 supra note 30
Sakshi v. Union of India, Writ Petition (crl.) 33 of 1997
State v. Vikash, AIR 1978 SC 1091