SHOULD MARITAL RAPE BE CRIMINALISED IN INDIA?

“A murderer destroys the body of a victim, while a rapist kills the spirit.”

-Justice Krishna Iyer

INTRODUCTION

Different societies have different views about marriage. In Indian society, marriage has always been considered a sacrament rather than just a contract. It is not just the union of two people; it is the union of two families. Love, trust, respect, and mutual understanding are the four pillars that act as the foundation of every successful marriage. So, the question here is whether it is okay if a husband has sexual intercourse with his wife without her consent, robbing her of her bodily integrity and individual autonomy?


What is marital rape?

Marital rape is defined as sexual intercourse between the husband and wife without the wife’s free consent.

Rape is defined under Section 375 of the Indian Penal Code, 1860 as forced sexual intercourse between a man and a woman against her will and without her consent. The only difference between rape and marital rape is that the relationship between the victim and the rapist in the latter is of husband and wife. Exception 2 under Section 375 says that a man is said not to commit the crime of rape if he has non-consensual sexual intercourse with his wife and the wife is above the age of 18 (age increased from 15 to 18 years following the judgement of Independent Thought v Union of India, 2017[1]). Exception 2 of the IPC, 1860 grants the husband lifetime immunity from all consequences for committing the offence of rape against his wife, because the wife implicitly consents to the conjugal relations between her and her husband by virtue of their marriage.


Why is marital rape an exception under the Indian Penal Code?

The reason for not criminalising marital rape stems from our society's inherent patriarchal structure, which has long attempted to suppress women's autonomy, as well as a culture that places marriage and family on the highest pedestal among social institutions.

The Indian Penal Code came into being in 1860 under the Colonial Rule. The ‘doctrine of coverture’, which says that the legal existence of a woman is merged into that of her husband and she ceases to exist as a separate entity after marriage, and the ‘Hale’s doctrine’, which says that the husband cannot be held liable for raping his own wife since the wife has given herself up to her husband and there is a matrimonial consent which cannot be retracted, are the principles based upon which marital rape found an exception in Section 375 of the IPC, 1860.


ADDRESSING THE QUESTION OF CONSTITUTIONAL VALIDITY

A division bench of the Delhi High Court recently delivered a split verdict on the issue of the unconstitutionality of Exception 2 of Section 375 of the IPC, in the case of RIT Foundation v Union of India[2].

Justice Shekdhar held that Exception 2 of Section 375 of the IPC is violative of Articles 14, 15, and 21 of the Constitution. He opined that the exception in question stems from ingrained patriarchy and misogyny in society. The differentiation between the same act on the basis of the relationship between the victim and the perpetrator is arbitrary and irrational when the physical and mental impact of the act is the same on the victim whether it happens within the bounds of a marriage or not. Whereas, Justice Hari Shankar was of the opinion that the exception should not be removed and that it is in ‘public interest’. He said calling a husband a rapist for having sexual intercourse with his wife without her consent would be antithetical to the very institution of marriage as defined in our country.


How is MRE unconstitutional?

Exception 2 violates Article 14 of the Constitution, which guarantees equal treatment to every citizen before the law. Despite being guaranteed equality before the law, the marital rape exception discriminates against married and unmarried women in protecting them against the offence of rape.

The Exception prioritises unmarried women in providing protection to them from rape.

The marital rape exception is also violative of Article 21 of the Constitution, which grants the right to life and personal liberty. The Apex Court has time and again interpreted Article 21 and widened its scope. In its decision in the case of Justice K.S. Puttaswamy (Retd.) v Union of India[3] the Supreme Court said that Article 21 includes the right to privacy, which further 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.” Hence, all women, regardless of their marital status, have the right to consent and privacy in all matters, and especially while making decisions that are sexual and intimate in nature.


CRIMINALISING MARITAL RAPE: NEED OF THE HOUR

Rape is rape. It does not matter whether it happens within the confines of a marriage or not. It is one of the most heinous crimes that has a serious impact on the mental and physical well-being of a woman.

It deprives her of her right to a dignified life and individual liberty. Marital rape can be more traumatic since the victim here has to live with her perpetrator and has to endure the same torture over and over. It can cause the victim to suffer prolonged emotional and physical agony, making it impossible for her to cohabit with her husband and sustain the marital bond.

There are very few recorded cases of marital rape because the sword of social dishonour is always hanging over women's heads and very few women can muster the courage to report their rapist husbands. By excluding marital rape from the definition of rape, the legislature is depriving women of their agency and autonomy granted to them by the Constitution.

Not labelling forced sexual intercourse as ‘rape’ in marriage is just a lousy attempt to not pollute the sacrosanct nature of the institution, as understood by the people of this country. Conjugal relations are reasonably expected during the course of a healthy marriage, but it does not grant the husband unrestricted access or ‘marital privilege’ to force sexual intercourse on his wife without taking into account the circumstances at a given point as well as her physical and mental health.


CONCLUSION

The laws related to rape have been amended several times since independence. However, the exception related to marital rape still exists. The Justice Verma Committee, which is responsible for majorly reforming the rape laws of the country, suggested scrapping the exception of marital rape from Section 375 of the IPC, 1860.

However, the parliament did not follow through. The former CJI of India, Justice Dipak Misra, once remarked, "Marital rape should not be regarded as a crime in India, as it will create anarchy in families, and our country relies on its family platform for its success in upholding family values." However, the question that arises is whether we should take pride in perpetuating family values that expect our women to keep their mouths shut about the horrific acts that are committed against them behind closed doors by their own husbands.

It is past time for the law to recognise marital rape as a crime and include it within the definition of rape. Consent is necessary for any kind of sexual act. Marriage does not grant the husband a licence to force his wife into sexual intercourse whenever he wishes. Women have the right to bodily autonomy and their consent is equally important as that of men. The perpetrators of marital rape need to be punished so that the punishment serves as a deterrent for reducing this heinous crime.

[1] Independent Thought v Union of India, (2017) 10 SCC 800. [2] RIT Foundation v Union of India, 2022 SCC OnLine Del 1404. [3] Justice K.S. Puttaswamy (Retd.) v Union of India, (2017) 10 SCC 1.



This article is written by Ridhima Garg of Symbiosis Law School, Pune.

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