INDIA'S MARITAL RAPE EXEMPTION: A TIME FOR

REEVALUATION?- Prakhar Bhatt

Marriage basically stands on two pillars husband and wife, they are meant to have equal
rights and importance in their development and growth. However, women are continuously
seen as a chattel to men to which rape is an apt example. Offence of rape is one of the most
heinous and gruesome criminal offence perpetrated against women. When it comes to marital
rape in the Republic of India it is still an exemption for husbands and the speed of this
heinous crime is proliferating. This article deals with the basic terminologies of marital rape
and other factors related to it. Its aim is to provide a perspective that why the exemption of
marital rape should be eliminated by the highest jurisdiction.

Marriage in a way is an emotional bond and sacred association between two individuals. It is
one in all the foremost vital establishment of the society. There's no theoretical thought of
marriage, it has developed with the advancement and evolution of society. In a country like
Republic of India wedding plays a very crucial role in varied aspects, because it contains
social and cultural obligations between the two respected families. Marriage promotes
psychological and physical state with a higher approach of living. It's the simplest way of
social insurance, and it creates emotional, social and economic conditions for effective
parenting. It conjointly creates social capital yielding to a bigger society. In Republic of India
there are several laws underneath the Indian penal code, 1860 that governs the establishment
of marriage and punishments are provided for the misconduct. For example- The Hindu
Marriage Act, 1955; Special Marriage Act, 1954; The Indian Christian Marriage Act, 1872
etc but as these laws were created by the Britishers martial rape was exempted and wasn't
thought about as a criminal offense at that point. Wife was considered as a property to the
husband and hence not capable of any rights. As a social group, cultural aspects were
completely different and males were mended to be the pinnacle of the family.

RAPE

Rape is outlined underneath section 375 of Indian Penal Code as penetration by one person
over other without having the consent of that person. The main component of whether an act

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should be or should not be considered or looked upon as rape is consent. The burden to prove
the lack of consent is often over the victim.

When two individuals are married the consent of having sexual intercourse is presumed to
exist. In such a situation the idea of marital rape becomes contrasted and there are many
justifications to this. In the present day we have reached to the advancement of gender
equality but one justification can be stemmed from the past as a wife was supposed to be
subservient to their husband and were considered as a commodity. The other justification
brought out is that husband and wife have a private sphere when they marry each other and
the law should not penetrate into it. Also, after getting married woman in a way tend to lose
their own individuality and their identity is merged with their husband as whole. The nuanced
theory of “implied consent” is also one of the examples as when a man and a women enter
into marriage it is considered as a civil contract and sexual activities are seen as a part of it.

ESSENTIALS OF RAPE

The official criminal code of Indian i.e. The Indian Penal code (IPC) consists of all
substantive aspects of criminal law. Thomas Babington Macaulay the chairman of the
primary Law Commission of India brought the Indian Penal Code in 1860 under which rape
is defined. At that time marital rape exemption was applicable to women above 10 years of
age. Later on, it was amended and the age was changed from 10 years to 15 years.

Under the Indian penal code on account of the Criminal Law (Amendment) Act, 2013 rape is
outlined under section 375, according to which: -

“A man is said to commit “rape” if he-— penetrates his penis, to any extent, into the vagina,
mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the
urethra or anus of a woman or makes her to do so with him or any other person; or
manipulates any part of the body of a woman so as to cause penetration into the vagina,
urethra, anus or any ~ of body of such woman or makes her to do so with him or any other
person; or 15 A more detailed breakdown of the respective parts is provided in Part II after
having established what the common justifications advanced against criminalization of
marital rape are. The Indian Penal Code, 1860, §375 as amended by the Criminal Law
Amendment Act, 2013 if a man applies his mouth to the vagina, anus, urethra of a woman or

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makes her to do so with him or any other person, under the circumstances falling under any
of the following seven descriptions:

First. —Against her will.

Secondly. —Without her consent.

Thirdly. —With her consent, when her consent has been obtained by putting her or any
person in whom she is interested, in fear of death or of hurt.

Fourthly. —With her consent, when the man knows that he is not her husband and that her
consent is given because she believes that he is another man to whom she is or believes
herself to be lawfully married.

Fifthly. —With her consent when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or through
another of any stupefying or unwholesome Substance, she is unable to understand the nature
and consequences of that to which she gives consent.

Sixthly. —With or without her consent, when she is under eighteen years of age.

Seventhly. —When she is unable to communicate consent.

Explanation of the terms used:

Explanation I.—For the purposes of this section, “vagina” shall also include labia majora.

Explanation 2. —Consent means an unequivocal voluntary agreement when the woman by

There are two exemptions provided under this given section:

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 1. A man who performs medical procedures or interventions does not come under the
ambit of rape as defined under IPC.
2. A man who indulges into sexual intercourse with his wife, the wife being not under 15
years of age cannot be charged under rape.

Following are the events on the marital rape exception in criminal law and the issue of its
criminalisation, on which the Delhi High Court delivered a split verdict: -

Jan 11, 2016: Delhi High Court issues notice to Centre and seeks its stand on the first petition
challenging marital rape exception in IPC.

Aug 29, 2017: Centre tells High Court that marital rape cannot be made a criminal offence as
it might destabilise the institution of marriage.

On May 11 it delivered a split verdict, with one of the judges favouring striking down the
exception in the law that grants protection to husbands from being prosecuted for non-
consensual sexual intercourse with their wives and the other refusing to hold it
unconstitutional.

Justice Rajiv Shakdher, who headed the division bench of the high court, had favoured
striking down the marital rape exception and said it would be tragic if a married woman’s call
for justice is not heard even after 162 years since the enactment of the Indian Penal Code
(IPC).

Justice C Hari Shankar, who was part of the high court’s division bench, had said the
exception under the rape law is not unconstitutional and was based on an intelligible
differentia having a rational nexus with the object of the exception as well as section 375
(rape) of the IPC itself.

The petitioners before the high court had challenged the constitutionality of the marital rape
exception under section 375 IPC (rape) on the ground that it discriminated against married
women who are sexually assaulted by their husbands.

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Marital rape or spousal rape is the act of sexual intercourse with one’s spouse without her
consent. The lack of consent is the main defining factor . Although marital rape is now seen
as an act of physical violence as we are moving towards the advancement of gender equality,
historically sexual intercourse within marriage was seen as spouse right.

Experts say the problem with criminalising marital rape is compounded by social stigmas
held by both men and women. According to a report by the Population Council, women in
several South Asian countries are afraid to resist the sexual advances of their husbands, lest
they be beaten in response. Additionally, the report states that in many developing countries,
both men and women believe that a husband is entitled to sexual intercourse anytime he
demands it.

Prosecuting spousal rape may prove difficult as it is tough to ascertain whether the consent
was given or not. In contrast with rape, married couples often times consent to sex, and the
wife by proving that she did not consent for the sexual intercourse can be very easy and this
can create a huge problem for all the husbands in this era of changing world and the person
can loss his reputation and integrity which he has earned all throughout his life by an ample
amount of hard work. The society will see him as a criminal and it won’t be easy to live like
this after getting acquitted by the court as all the people won’t see him as normal human
being after all scenarios.

Criminalization of Marital Rape in other countries

The disgraceful increase in intimate partner violence makes home one of the most dangerous
places for a woman to be. The exemption provided to marital rape gives the husband
ridiculously extreme immunity over the wife’s body and decision making.” We have seen
great progress on eliminating discrimination against women in family laws, however it is no
accident that family laws have been the slowest to change” said the executive director of UN
Women, Phumzile Mlambo-Ngucka. Family law includes matters such as women’s right to
choose who and when to marry, provides the provisions of divorce and shapes women’s
access to family resources, it said, calling for policy reform to better protect women.
According to reports, globally about one in five women in the age bracket of 15 to 49 have
been through either physical, sexual or emotional abuse from a former or a current partner.

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After Tunisia, Jordan and Lebanon scrapping marry-your-rapist laws in 2017, women in
countries like Iraq and Malaysia are ramping up pressure to abolish similar laws in
constitution of their respective countries. 58% of countries do not criminalize the offence of
women being forced to have sex within marriage which implies that marriage gives the
husband implied consent for sexual intercourse with his wife whenever he fancies.” This is
quite an eye opener that we still have a long way to go in terms of legal framework” said
Shahrashoub Razavi (the report’s chief researcher)The UN Women’s 2011 report brought out
that 52 of 179 countries have criminalised marital rape and the remaining include both, the
countries which have marital exemption and the ones which don’t where therefore, spouse
can be prosecuted under general rape laws.

There are countries that have criminalised marital rape with severe tenure. For instance,
Liechtenstein, Mongolia and Rwanda have life imprisonment; Guatemala, Philippines,
Serbia, Grenada have 30-50 years of imprisonment. Mozambique, Ecuador, Luxembourg,
New Zealand, Greece, Argentina and Monaco have 10-30 years of lock up. In 1976, under
the impact of second wave of feminism, Australia become the first common law country to
pass reforms making marital rape a criminal offence. In 1750s several Scandinavian countries
and the ones in communist block passed laws criminalising spouse rape including Denmark,
Norway, Sweden, and former Czechoslovakia, and Soviet Union. In

1932, Poland became the first country to explicitly criminalize marital rape. Since 1980s
countries like South Africa, Canada, the United States, Canada, Israel, Malaysia and Ghana
have eliminated the immunity provided to husbands.

From 1970s to 1993 all 50 countries of US made marital rape a criminal offence. In 1984,
The court of Appeals of New York removed the exemption. Belgium, Germany, Netherlands,
Luxembourg criminalised spousal rape in 1986 after The European Parliament’s resolution
on Violence against Women of 1986. House of lords of UK struck down the exemption in
1991.

Nepal criminalized marital rape in 2002 as it violated equal protection and right to privacy.
Its supreme court claimed that “The classification of the law that an act committed against an
unmarried girl to become an offence and the same act committed against a married woman
not to become an offence is not a reasonable classification.”

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CONCLUSION

Viewing all the aspects discussed above we can conclude that marital rape has a large number
of consequences and women should not be viewed as a commodity, as we have come so far
leaving the historic patriarchal view of the society. Woman in a marriage has equal rights and
making them suffer through any way is against human rights especially when it comes under
the ambit of forced sexual intercourse. Respected authorities should take required decisions
to create a healthy environment for women and should take major steps to eliminate this
heinous crime from the society.

While some argue that criminalizing it could disrupt marital harmony or lead to misuse of the
law, these concerns cannot overshadow the fundamental right to bodily autonomy and
freedom from sexual violence. India has made significant strides towards gender equality,
and the time may be ripe for a reevaluation of the marital rape exemption. Open discussions,
legislative reforms, and social consciousness campaigns can pave the way for a future where
marital rape is not a tolerated exception, but a recognized crime. Only then can India truly
claim to uphold the dignity and safety of all its citizens within the marital bond.

REFERENCES

1. Akram, A. (n.d.). The Decriminalisation of Marital Rape: How India Continues to

Refuse Justice to its Married Women | OHRH. https://ohrh.law.ox.ac.uk/the-

decriminalisation-of-marital-rape-how-india-continues-to-refuse-justice-to-its-

married-women/

2. Why the “Marital Rape Exemption” in Criminal Law Must Go. (n.d.). The Wire.

https://thewire.in/rights/why-the-marital-rape-exemption-in-criminal-law-must-go

3. K, V. V. (2023, January 11). Why India’s law still allows men to rape their wives.

The Week. https://www.theweek.in/news/india/2023/01/09/marital-rape-law-india-

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court.html/1000

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