Author: Lakshya Jauhari, Student at Amity Law School, Noida.
MARITAL RAPE: AN UNDERSTANDING
Marital Rape is also known as “Spousal Rape” in layman’s terms can be defined as forceful sexual intercourse by the husband against his lawful wedded wife. The definition of marital rape also covers other forceful acts defined under Section 375 of the Indian Penal Code, 1860.
Its 2021 and yet wretchedly marital rape is not considered as a crime in India. This heinous act get its legitimacy from Exception 2 of Section 375 of IPC which says “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”. This provision in IPC is clearly a State-sanctioned license for men to rape their own wives. The origin of exception of marital rape can be traced from the statements of Sir Mathew Hale (Chief Justice of England in 1671) in his treatise, namely, The History of the Pleas of the Crown in which he mentioned, “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 up herself in this kind unto her husband, which she cannot retract”. This theory was acknowledged as legally bound in all former British Colonies.
Clearly in India a person cannot be convicted for raping his own wife and this is an issue of grave concern. Although exception 2 of section 375 safeguard wives below the age of 15 years from the sexual violence inflicted by the husbands but it does not take married women above the age of 15 years under its purview which is constitutionally incorrect. From quiet a long time Judiciary and the State is pressurized by civil societies, social activists and others to criminalize marital rape but no such thing has been taken into consideration yet. Supreme Court and various High Courts are engulfed with writ petitions, PILs challenging the constitutional validity of Exception 2 of Section 375.
In Bodhisattwa v. Subhra Chakraborty, Supreme Court observed “Rape is a crime not only against the person of a woman, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crises. Rape is therefore the most hated crime. It is a crime against human rights and is a violation of the victim’s most cherished right, namely, the right to life which includes the right to live with human dignity contained in Article 21”. Even after observing the seriousness of this heinous conduct on mental and emotional health of a woman by the Judiciary, married women are still excluded from getting protection under the rape laws of our country.
Marital Rape being a sadist act can be categorized in several forms such as Force Only Rape where the husband uses criminal force up to the amount which is necessary to indulge the wife into sexual intercourse, then there is Battering Rape which is the combination of rape and physical violence such as harsh beatings and there is Obsessive Rape which is considered to be most sadistic in nature as the act of rape is itself extremely violent. There are many factors which lead to the commission of marital rape by the husbands such as patriarchal mind-set of our society where men are believed to be superior in position than women. Husbands at large consider their wives as their property as rightly stated by Ranjana Kumari, Director of Centre for Social Research, “Take the kanyadaan for instance, when you are giving away the girl as property, the men will treat her as property, right?” Furthermore, the economic structure of our society is such that men are considered as the bread-earner in the family, placing them in the position of dominance. Economic restraints, lack of education and unawareness of basic human rights causes women to suffer silently from sexual violence of their husbands. Also, there is an orthodox belief that in a marriage it is the sole duty of a wife to serve her husband faithfully. Marital Rape is considered to be the most under-reported crime as abovementioned factors seizes a woman to make a complaint against sexual violence of the husband. Victims of marital rape carry an opinion that it is their fate to be treated like this in a marriage by their husbands. Due to the under-reporting aspect the Government does not have clear data on incidents of Marital Rape in the country.
Although it would not be appropriate to say that we don’t have any figures on the incidents of marital rape as a survey was conducted by National Family Health Survey, Ministry of Health and Family Welfare in 2005-06 in which approximately 1,24,385 women in 29 states were covered and it was found that 10% of women reported that they were forced to have sexual intercourse with their husbands. Also, a study conducted by the International Centre for Research on Women (ICRW) and United Nations Population Fund (UNFPA) in 2014 in 8 states of India showed that a third of men in those states admitted to having forced a sexual act on their wives. According to the annual Crime in India Report 2017 published by National Crime Records Bureau (NCRB), 3,59,849 cases of crime in total against women were reported. Uttar Pradesh having highest number of cases amounting approximately 56,011 cases followed by Maharashtra and then West Bengal. The report stated that majority of cases were reported under Section 498A which talks about cruelty by the husband and his relatives and this is certainly evident enough to draw an inference that women are subjected to violence by the husbands.
Currently India is one among 36 countries that haven’t criminalized marital rape. Even neighbouring countries like Nepal and Bhutan criminalized the act of Marital Rape. Supreme Court of Nepal in 2006 declared marital rape illegal on grounds that it is in violation of fundamental rights under their Constitution.
Further in this paper author has discussed constitutional validity, Indian legal position and legal position of other countries regarding marital rape.
CONSTITUTIONAL VALIDITY OF EXCEPTION 2 SECTION 375 OF IPC
When it comes to Article 14, the major objective of the provision is to treat every person alike under similar circumstances/situations therefore eradicating arbitrary and unreasonable action of the State. Furthermore, Article 14 authorizes the State to create classification on the grounds that it must be rational/reasonable in nature and must not be based upon mere discretion of the State. The said article includes both administrative and legislative action under its purview. The principle of equality of law should not be necessarily applied on each and every person but it must be applied on every person of the same class.
Speaking of exception 2 of section 375 IPC with reference to the basic understanding of Article 14 it is evident that this provision of IPC classifies women on the basis of their marital status. The said exception immunizes the act of rape when it comes to married women therefore such a classification by the legislature is unreasonable and arbitrary in nature and it depicts biasness of the legislature towards married women above the age of 15 years. Hence, exception 2 of section 375 IPC stands in violation of Article 14 of the Constitution. The abovementioned exception clearly lack intelligible differentia which is a basic feature of reasonableness test under Article 14.
Under Article 15(3) of the Constitution, State is vested with the power to make special laws for safeguarding the interest of women and children but no initiative is yet taken by the State for the married women against rape by their own husbands. In Sri MahedabJiew v. Dr. B.B.Sen, Calcutta High Court held that exception 2 of section 375 IPC cannot be protected under article 15(3) as a special provision for women because it is prejudiced towards married women.
Exception 2 of Section 375 IPC also frustrates Article 21 of the Constitution which is the most cherished provision when it comes to the basic human rights. In a plethora of cases the Supreme Court has observed that life should not be a mere animal living rather every person must be entitled to a dignified and meaningful life. In Vincent v. Union of India, SC held that a healthy body is the very foundation of all human activities that’s why the right to health is the core content of Article 21. Women facing sexual violence by the husbands are subjected to degradation of mental, emotional and physical health. Trauma gone through by a victim of martial rape is reasonably more severe in nature as she has to reside and be in contact with the accused being the husband of victim itself. In many cases wives suffers from multiple incidences of sexual violence. Such a heinous act is a violation of the right to health of a woman. In Suchita Srivastava v. Chandigarh Administration, SC observed that women’s right to make reproductive choices is the integral part of personal liberty promised under Article 21 and the right to privacy, dignity and bodily integrity of a woman must be valued. In State of Maharashtra v. Madhukar Narayan Mardikar, SC recognized the right to privacy of a prostitute and held that no one can infringe sexual privacy of a prostitute at any time except for the consent given by her or the willingness shown by her. Through these rulings of the Supreme Court an inference could be drawn that Judiciary is focused towards protecting all kinds of women against sexual vehemence except for married women.
These rulings of Supreme Court provide bodily autonomy to the women and it can be assumed that men cannot have control over women’s bodies. Women’s sexual privacy comes under the purview of right to privacy and personal liberty irrespective of their marital status thus making the conduct of martial rape a violation of Article 21. In Sakshi v. Union of India, Sakshi being a NGO striving for the rights of women against violence through a petition in Supreme Court raised the issue of inadequacy of section 375 of IPC. Supreme Court upheld the said provision of IPC and denied to make further changes but Supreme Court on the other hand recognized the rapid increase in the rape cases and suggested legislature to amend rape laws of the country.
Even after so many judicial precedents in the interest of women against sexual violence a husband cannot be convicted for raping his wife because the law in the usage of exception 2 to section 375 of IPC does not allow so. Noticeably, this provision of IPC is contradictory to the fundamental rights of women under article 14, 15 and 21 and calls upon an immediate State action against the said provision. Article 38 under directive principles of state policy puts on the State an indispensable obligation to provide social justice to the people.
INDIAN LEGAL SCENARIO VIS-À-VIS MARITAL RAPE
As mentioned earlier that marital rape is not yet considered as a punishable offence in India and such an act of rape derives its validity from exception 2 of section 375 IPC. Any husband for the commission of marital rape can only be booked under IPC when either the wife is below the age of 15 years or the wife is legally separated from her husband according to section 376B of IPC, other than these two conditions a husband is free from criminal liability when it comes to marital rape. In Sreekumar v. Pearly Karun, Kerala HC observed as the wife was residing with the husband even after holding a decree of judicial separation, forceful sexual intercourse by the husband against her consent & will cannot entice Section 376B of IPC.
Significantly, the age limit in exception 2 of section 375 was extended from 15 years to 18 years by the apex court in the case of Independent Thought v. Union of India on the grounds that the aforementioned provision of IPC is contrary to POCSO Act of 2012 which set the minimum age limit for consensual sex as 18 years and for protecting the interest of girl child. Supreme Court further observed violation of fundamental rights of a girl child as the provision was discriminatory in nature. Furthermore, Supreme Court made a clear demarcation that this judgment is not in any way applicable on the wives above the age of 18 years, evidently not considering marital rape a crime when the victim is an adult woman.
In 2013, Justice Verma Committee in its report on criminal law amendments suggested that exception 2 of section 375 IPC should permanently be eradicated. This was the key recommendation for outlawing marital rape in India. The State by now hasn’t acted upon such a recommendation of the Justice Verma Committee. In India, we have strict and ample amount of laws for the protection of women such as The Immoral Traffic (Prevention) Act, 1956, The Dowry Prohibition Act, 1961, The Indecent Representation of Women (Prohibition) Act, 1986, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, The Criminal Law (Amendment) Act, 2013, etc. None of the aforesaid legislations provide for the security of an adult women against sexual assault inflicted by their husbands.
The Protection of Women from Domestic Violence Act, 2005 is the only piece of legislation which recognize marital rape as a wrongful act according to Section 3(a) of the said act which includes sexual abuse in constituting domestic violence. Now the dejected fact is that this statute only provides civil remedies to the victim of domestic violence such as protection orders, monetary reliefs, custody orders, compensation orders, etc. By the virtue of this statue, husbands are still free from attracting criminal liabilities. Provision of civil remedies against such an inhuman act of marital rape clearly visualizes the State’s ignorance towards the plight of married women.
Moreover, marital rape is not considered to be a valid ground for divorce under Hindu Marriage Act, 1955, Muslim Personal Law (Shariat) Application Act, 1937 and Special Marriage Act, 1954.
INFERENCES DRAWN BY THE STATE AND JUDICIARY
On 9th July, 2019 a petition was dismissed by the Delhi High Court which was seeking directions to the Centre for framing of appropriate guidelines for the registration of FIRs in the cases of marital rape because of the confusion among law enforcement authorities that under what penal provisions the FIR should be registered? Also, the plea was seeking direction for the framing of laws under which marital rape could be a valid ground for divorce. High Court in response to the plea held that it cannot give direction for framing of laws as it is the domain of legislature and not judiciary per se.
Former CJI Dipak Misra at a conference remarked on a question of criminalizing marital rape that “it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values” He further added that marital rape is a foreign concept and need not to be applied in India.
On 29th August, 2017 in RIT Foundation v. Union of India, Union Government in response to a plea seeking for criminalization of marital rape submitted before the Delhi High Court via affidavit that criminalizing marital rape may destabilize the institution of marriage and may become easy tool for harassing husbands. It was further submitted that the Supreme Court and various HCs in past observed emergent misuse of section 498-A of IPC dealing with cruelty by husband and his family against the wife.
Swaraj Kaushal, Former Governor of Mizoram in the matter of criminalization of marital rape remarked “There is nothing like marital rape. Our homes should not become police stations. There will be more husbands in jail than in the house”.
Maneka Gandhi, then minister of child and women development submitted a written reply in Parliament on the question of criminalizing marital rape which stated that “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament etc.”
The ignorance of State and the Judiciary towards outlawing marital rape is clearly due to the sacred nature of marriages and upholding cultural and family values but the question which arises here is whether such a nature is superior to the fundamental rights promised under part III of the Constitution? The answer is no. People are supposed to be entitled to basic human rights irrespective of any other factors.
LEGAL POSITION OF OTHER COUNTRIES IN CONTEXT OF SPOUSAL RAPE
Sir Mathew Hale’s statement on marital rape mentioned earlier in this paper got legal recognition in common law countries and since then marital rape was considered legal. Husband’s choice to have sexual intercourse with his wife at any time was given paramount significance and the consent & will of the wife to involve in sexual act was not taken into consideration. Exception 2 of Section 375 IPC materializes from concept of marital rape by Sir Mathew Hale only.
In UK marital rape was no offence prior to 1992 but things took a turn after the judgment by House of Lords in the case of R v. R in which exemption of marital rape was considered as illogical and it was further stated that all the non-consensual sexual activity is rape even within bonds of marriage. This judgment paved way for the criminalization of marital rape in UK. A husband can be convicted in the UK under Section 1 of Sexual Offences Act, 2003 for having forceful sexual intercourse with his wife.
Exemption of Marital Rape was eradicated by most of the common law countries following the system of UK. In United States by 1993 all 50 states criminalized marital rape although details of the offence of marital rape varied in different states. Australia under Section 73(4) of the Criminal Law Consolidation Act, 1953 criminalized the act of martial rape, the provision states “No person shall, by reasonably of the fact that he is married to some other person, be presumed to have consented to an indecent assault by that other person”. South Africa also outlawed the exemption of marital rape under Section 5 of Family Violence Act, 1993 which says, “Notwithstanding anything to the contrary contained in any law or in common law, a husband may be convicted of the rape of his wife”. In 1983 exemption of spousal rape was repealed by Canada as well. More than 135 countries have criminalized martial rape by the way of common laws, legislations, etc. Apart from India there are countries like Afghanistan, Bangladesh and few more who haven’t considered spousal rape illegal.
By the virtue of above-mentioned facts and findings it is undoubtedly understandable that married women in India are subjected to forceful sexual intercourse. No prosecution takes place against husbands for the conduct of such an inhuman act, namely, marital rape. Our society goes on an assumption that once two individuals get married, women in that marriage tend to give perpetual consent to the husband for involving in sexual activities but this is not the case so. With time passing by, Judiciary has evolved its opinion towards the rights and interests of women and today women have been given equal rights up to a great extent. Judiciary recognized sexual privacy and bodily autonomy of women and the consent of a woman to enter into any sexual activity is given paramount importance. State has also played a key role in providing a legal framework for the protection of women and their interests. Apart from such legal advancements only thing which is of grave concern and calls for immediate action is the non-criminalization of marital rape. Certainly, women cannot be deprived of their fundamental rights on the basis of their marital status. Marriage is a sacred union of two individuals where both the people are meant to be treated with respect by each other and the respect of a married woman gets exhausted once she’s forced to have sexual intercourse without her consent & will.
It’s time that awareness must be spread among women about their basic human rights so that they may stand up and speak against such atrocious act. Women need to understand that getting sexually violated is not their fate. Men must necessarily be educated to respect women in all spheres of life. The State must consider to build up a separate legislation against martial rape, but as this looks nearly impossible in near future the State must make necessary changes in IPC that could be used as defense against marital rape for the time being. Also, marital rape must be recognized as a ground for the decree of divorce. A woman must not be entitled to spend the rest of her life with a person who treats her inhumanely. Furthermore, appropriate law enforcement authorities must be provided with guidelines to register cases of marital rape so that prosecution against husbands could be held before the court of law.
 Student at Amity Law School, Amity University, Noida.
 The Indian Penal Code, 1860 (Act 45 of 1860), s. 375.
Dr. Vandana, “MARITAL RAPE – EXEMPTION UNDER INDIAN PENAL CODE: QUEST FOR RECOGNITION AND LIABILITY” 2 ILI Law Review 5 (2017).
 Sarthak Makkar, “Marital Rape: A Non-criminalized Crime in India” HHRJ (2019).
 Bodhisattwa Gautam v. Subhra Chakraborty, AIR 1996 SC 922.
Types of Marital Rape, available at: https://www.rainn.org/pdf-files-and-other-documents/Public-Policy/Issues/Marital_Rape.pdf (last visited on September 21, 2020).
https://www.thenewsminute.com/article/ministrys-statement-mentions-marital-rape-law-policy-doesnt-govt-playing-media-46764 (last visited on September 21, 2020).
MARITAL RAPE: WHETHER MARRIAGE IS A LICENSE TO RAPE? , available at:https://www.researchgate.net/publication/303910426_MARITAL_RAPE_WHETHER_MARRIAGE_IS_A_LICENSE_TO_RAPE (last visited on September 15, 2020).
https://www.thehindu.com/news/national/other-states/uttar-pradesh-tops-in-crimes-against-women-says-ncrb-report/article29760974.ece#:~:text=After%20a%20delay%20of%20two,were%20reported%20in%20the%20country.&text=Incidents%20of%20crime%20related%20to,2016%20to%20720%20in%202017(last visited on September 15, 2020).
 Supra note 3.
 Vikram Cement v. State of MP, (2015) 11 SCC 708.
 UOI v. International Trading Corporation, AIR 2003 SC 3983.
 Gauri Shankar v Union of India, AIR 1995 SC 55.
 Mahadeb v. Dr. Sen, AIR 1951 Cal 563.
 Vincent v. Union of India, AIR 1987 SC 990.
 Suchita Srivastava v. Chandigarh Administration, AIR 2010 SC 235.
 State of Maharashtra v. Madhukar Narayan Mardikar, AIR 1999 SC 495
 Sakshi v. Union of India, (2004) 5 SCC 518.
 The Indian Penal Code, 1860 (Act 45 of 1860), s. 376B.
 Sreekumar v. Pearly Karun, 1999 (2) ALT Cri 77 (India).
 Independent Thought v. Union of India, (2013) 382 SCC (2017) (India).
 Neeraj Malik, “Marital Rape Laws and Women Security in India: A Critical Analysis” 4 GLOBAL JOURNAL FOR RESEARCH ANALYSIS 131 (2015).
 https://www.firstpost.com/india/ex-cji-dipak-misras-family-values-argument-in-favour-of-non-criminalisation-of-marital-rape-insults-institution-of-marriage-6438371.html (last visited on September 16, 2020).
 W.P. (C) No.284/2015 (India)
 https://www.thequint.com/voices/women/marital-rape-doesnt-exist-says-sushma-swaraj-husband-swaraj-kaushal (last visited on September 16, 2020).
https://thewire.in/politics/activists-angered-by-maneka-gandhis-altered-stance-on-marital-rape (last visited on September 16, 2020).
 Supra note 21.