MARITAL RAPE IN INDIA
In India section 375 of IPC defines rape as “sexual intercourse with a woman against her
will, without her consent, by coercion, misrepresentation or fraud or at a time when she has
been intoxicated or duped, or is of unsound mental health and in any case, if she is under 18
years of age”1 however there is an exception of it also provided that says “Sexual intercourse
by a man with his own wife, the wife not being under fifteen years of age, is not rape”. Hence
as per current law marital rape if committed against wife more than 15 years of age is not
punishable in India. It established a notion that after marriage women become property of
men therefore they have no right to refuse sex with her husband. This grants husbands a
license to rape their wives. In a survey conducted by the International Centre for Research on
Women (2011) nearly 20% of women said they are subjected to marital rape. Similalry as per
the National Health and Family Survey (NFHS-4) conducted in 2016, 5.6% of total surveyed
women found to be a victim of physically forced sexual intercourse.2
As per current law, rape legislation regarding married women are divided into four groups
When the age of the wife is below 12 years, “offense punishable with imprisonment
of either description for a term which shall not be less than 7 years but which may
extend to life or for a term extending up to 10 years and shall also be liable to fine.”
When the age of the wife is between 12-15 years, “offense punishable with
imprisonment up to 2 years or fine, or both”
When rape is committed against judicially separated wife, “offense punishable with
imprisonment up to 2 years and fine”
When the age of the wife is above 15 years, no provision for punishment.3
This classification of marital rape raised a serious question before the judiciary i.e what is the
reasoning behind considering only rape of wives below 15 years of age and not the whole
1
“Section 375, Indian Penal Code 1860.”
2
“Sumedha Choudhury,"Why Criminalisation of Marital Rape Is Still a Distant Dream in India’ Business
Standard India (29 October 2018) <https://www.business-standard.com/article/current-affairs/why-
criminalisation-of-marital-rape-is-still-a-distant-dream-in-india-118102900084_1.html>" accessed 10 April
2020.””
3
‘Issue2.Pdf’ <https://www.galgotiasuniversity.edu.in/pdfs/issue2.pdf> accessed 10 April 2020.
group? And also why if the rape is committed against the wives between 12-15 years of age
attracts milder punishment?
The idea behind such classification is a recommendation of 42nd report of The Law
Commission of India who advocated to exclude marital rape from the section 375 of IPC and
gave reasoning for it as:
“The prosecutions for this offense are very rare. We think it would be desirable to take this
offense altogether out of the ambit of section 375 and not call it rape even in a technical
sense. The punishment for this offense may also be provided in a separate Section”4
This recommendation of law commission attracted lots of criticism from feminists groups
who wanted the exception clause to be deleted from the definition of rape under sec 375 of
IPC. finally, after lots of hullabaloo task force on women was set up by the Woman and Child
Department to review all the existing legislation regarding marital rape. The task force after
reviewing all the legislation took up the view that the definition of rape to be broadened to
include even marital rape committed against wives above 15 years of age.
Later the same view was adopted by the 172nd report of law commission of India that
suggested the term “rape” under section 375 of IPC should be replaced by the term “sexual
assault” to make the definition more broader.
In 2005, finally, the first attempt was made by the government to provide justice to marital
rape victims by introducing the Protection of Women from Domestic Violence Act, 2005 that
though did not recognize the marital rape as a crime but consider it is in the form of Domestic
Violence. According to this Act, if a husband committed marital abuses of his wife, the
woman will go to court seeking legal separation from her husband. This act gives a ray of
hope to the women who have undergone marital rape5.
In 2012, Justice Verma Committee who was set up to improve anti rape laws legislation also
recommended to broaden the definition of rape and the exception of marital rape to be
removed from section 375. As per the committee “The fact that the accused and victim are
married or in another intimate relationship may not be regarded as a mitigating factor
justifying lower sentences for rape.”6
4
ibid.
5
‘India Law Journal’"<https://www.indialawjournal.org/archives/volume2/issue_2/article_by_priyanka.html>
accessed 10 April 2020.”
6
Choudhury (n 3).
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Even after these recommendations, the suggestion to criminalize marital rape did not find a
place in the Criminal Law Amendment Act 2013.
CONSTITUTION OF INDIA AND MARITAL RAPE
LEGISLATION
As per the Indian constitution, every law must be in confirmation with the basic structure of
the constitution and if any law violates it then it is to be declared ultra vires and struck down
by the court. The legislation regarding marital rape is also not in confirmation with the
constitution as it is in violation of Article 14 and Article 21 of the indian constitution, It also
needs to be struck by the courts as well.
Article 14: Equal Protection Of Law
Article 14 of the constitution of India states “the State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India.” 7Hence it
means all the people should be treated equally and must provide equal protection of the law.
However, Article 14 does not require every person to be treated equally in all situation but it
means like should be treated alike. It provides the provision for classification among unlike
individuals which are based on two condition
There must be intelligible differentia that separate group from others.
The differentia must have some nexus with the object sought to be achieved.8
In the case of marital legislation, there is no intelligible differentia between two classes of
married women based on their age hence such classification is invalid and should be struck
down by the court. The distinction between unmarried and married women under sec 375 is
also violative of Article 14 as it does not provide any rational nexus between distinction and
object sought to be achieved. The above legislation also denies married women to have equal
7
Article 14, Constitution of India.
8
"Marital Rape:"A Non-Criminalized Crime in India’<https://harvardhrj.com/2019/01/marital-rape-a-non-
criminalized-crime-in-india/>"accessed 10 April 2020.”
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protection from rape and sexual harassment.9 Therefore we can sum up marital legislation in
India is in gross violation Article 14 of the Indian constitution.
Article 21: Right To Life And Personal Liberty
Article 21 of the Indian constitution states “no person shall be denied of his life and personal
liberty except according to the procedure established by law.”10 It means every person has the
right to life and personal liberty in India which includes the right to health, privacy, dignity,
etc.
Marital legislation in India violates the host of rights that are included in the expression of the
right to life and personal liberty under this Article. The marital exemption violates the right to
good health, right to sexual privacy, right to self-determination of body, right to live with
dignity, etc.
Right To Good Health – Article 21 provides us right to good health under the
expression of the right to life however marital legislation in India is violative of right
to good health too as the absence of marital rape laws encourages men to coerce their
wives to have sex which causes serious physical and psychological harm on them.
Sometimes it throws them in deep emotional crisis.11
Right To Sexual Privacy – The Supreme Court in the case of Justice K.S.
Puttuswamy (Retd.) v. Union of India12 held that the “right to privacy is a
fundamental right and included under Article 21 of the constitution. This case ensures
that every person has the right to privacy under Article 21.” Similarly In the case
of State of Maharashtra v. Madhkar Narayan 13 The Supreme Court held that “every
woman was entitled to sexual privacy and it was not open to for any and every person
9
. ‘India Law Journal’ (n 6).
10
Article 21, Constitution of India
11
‘Issue2.Pdf’ <https://www.galgotiasuniversity.edu.in/pdfs/issue2.pdf> accessed 10 April 2020.
12
( 2017) 10 SCC 1.
13
AIR 1991 SC 207.
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to violate her privacy as an when he wished or pleased.” This case ensures that it is
the right of the women to be left alone and any forceful sexual intercourse violates
such rights. Hence in marital rape, husbands violate the sexual privacy of their wives
as per their own wishes which is a gross violation of this Article.14
Right To Self Determination Of Body – As per Article 21 every person has the right
to take a decision regarding their body or matter associated with the body. Consent of
sex is one of such decision however in the marital rape husbands coerce her wives to
have sex without her consent sometimes also they make decisions regarding their
body which is a violation of the Right To Self Determination Of Body.15
Hence we can sum up, the marital exemption doctrine in India is not only unconstitutional but
it also deprives women of their basic rights. It is violative of both Article 14 and Article 21 as
it does not pass the test of “just, fair and reasonable” laid down in Maneka Gandhi Vs Uoi.16
Role Of Judiciary
The role of the judiciary in the matter of marital rape is quite mixed. History of judicial
decisions in the matter of forceful sexual intercourse by husband on her wife was traced back
to the case of Queen Empress vs. Haree Mythee 17in which court observed that “In case of
married women, the law of rape does not apply between husband and wife after the age of 15;
even if the wife is over the age of 15, the husband has no right to disregard her physical
safety, for instance, if the circumstances are such that intercourse is likely to cause death.” In
this case, court though did not recognize the offense of marital rape but still provides
protection to women if sexual intercourse committed in a manner that causes physical injury
14
‘Issue2.Pdf’ (n 12).
15
“‘Eastern Book Company - Practical Lawyer’ <https://www.ebc-india.com/lawyer/articles/645.htm> accessed
10 April 2020.”
16
1978 AIR 597.
17
(1891) ILR 18 Cal. 49.
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to her. Similarly, in the case of Emperor vs. Shahu Mehrab 18the husband was convicted
under 304A of IPC for causing the death of her wife due to forceful sexual intercourse.
In the case of Saretha vs. T. Venkata Subbaih 19court held that:
“There can be no doubt that a decree of restitution of conjugal rights thus enforced offends
the inviolability of the body and mind subjected to the decree and offends the integrity of
such a person and invades the marital privacy and domestic intimacies of a person.” In this
case, court stated that “if it enforces sexual intercourse between husband and wife then it
would amount to a violation of one’s conjugal rights and privacy.” 20
In Sree Kumar vs. Pearly Karun.21 case there has been an ongoing divorce dispute between
husband and wife Thereafter, the matter was settled between them and the wife started living
with her husband however after some time wife alleged her husband to commit forceful
sexual intercourse on her. The court, in this case, held that since the wife was living with her
husband and they were not judicially separated, it does not attract 376A of IPC.
Consequently, the husband was declared not guilty.
In the recent case of Nimeshbhai Bharatbhai Desai vs State of Gujarat Gujarat High Court
dealt elaborately with the question of marital rape in India and held that “making wife rape
illegal or an offense will remove the destructive attitudes that promote the marital rape”
22
however due to absence of any legal framework for marital rape under Indian penal code,
the court held that “the husband is liable only for outraging her modesty and unnatural sex.”
Similarly, The Supreme Court in the case of Independent Thought vs Union of India and
Anr23 Criminalized sexual intercourse with a minor wife between 15 and 18 years of age but
did not make any observation regarding marital abuse of adult women24.
18
“AIR 1917 Sind 42.”
19
“AIR 1983 AP 356.”
20
“Deepriya Snehi and Mahima Shrimali, ‘Making Women Alternatively Empowered Beyond Measure. (With
Reference To The Criminal Amendment Act, 1983)’ 6.
21
1999 (2) ALT Cri 77.
22
“Saba, ‘Marital Rape: A Husband Cannot Be Permitted to Treat His Wife like a Chattel and Violate Her
Dignity’ (SCC Blog, 18 April 2018) <https://www.scconline.com/blog/post/2018/04/18/marital-rape-a-husband-
cannot-be-permitted-to-treat-his-wife-like-a-chattel-and-violate-her-dignity/> accessed 10 April 2020.”
23
(2017) 10 SCC 800.
24
Choudhury (n 3).
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From the above analysis, we can sum up, though in recent years court has begun to
acknowledge one’s right to abstain from sexual intercourse in most cases court seems to have
established a notion that marriage is a sacrosanct thing, interference of judiciary in such
matter is a violation of their conjugal’s right.
Argument Against Criminalization Of Marital Rape
One of the arguments against the criminalization of marital rape is women have
already adequate remedies under 498A of IPC and Protection of Women from
Domestic Violence Act of 2005. 498A deals with the atrocities committed by the
husband and his relatives against the wife while Protection of Women from Domestic
Violence Act deals with sexual or physical abuse of women in the form of domestic
violence.25
Another argument against the criminalization of marital rape is marriage in India
considered as sacrosanct activity hence any interference of the judiciary would
destroy the institution of marriage as it prevents the couple from any future
reconciliation.
Implied consent is another argument against the criminalization of rape which is
based on the idea of sir Matthew Hale who said that 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 up in this kind unto her husband
which she cannot retract.” It means when women married to men, they give implied
consent to bound by her husband physically and mentally.26
Another argument for the exception of marital rape is it is quite uncommon in nature.
25
“‘Marital Rape: A Non-Criminalized Crime in India’ (n 9).”
26
ibid.
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The most common argument put forth by advocates for maintaining exemption of
marital rape is this law will give license to angry, dissatisfied wives to falsely accuse
their husbands.
These arguments of opposers of marital rape laws are just fanciful excuses to maintain the
dominance of husbands over wives in this patriarchal society.
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