Marital Rape:

  • Marital rape or spousal rape is the act of sexual intercourse with one’s spouse without their consent. The lack of consent is the primary defining factor and the act need not involve physical violence.
  • Although marital rape is now widely seen as a form of sexual violence, historically, sexual intercourse within marriage was regarded as a spouse’s right.
  • Marriage, a sacred institution, raises complex questions about rights and consent. Legal definitions of rape, based on the absence of consent, create challenges when applied within marital contexts.
  • The contentious issue of marital rape remains unaddressed by the law in India, placing it among the last 34 countries that have not criminalized this form of violence within marriage.
  • Globally, many jurisdictions do not recognize marital rape as a criminal offense, often due to exemptions in the law for spouses. Generally termed the “marital rape exception clause,” this legal gap leaves victims unprotected within marital unions. India, similarly, lacks laws that categorize marital rape as a crime, despite providing safeguards against other forms of abuse.
    • Out of 185 countries in the world, 77 have laws that clearly criminalise marital rape while there are 34 countries that explicitly decriminalise marital rape, or in essence, offer immunity to men who perpetrate rape against their wives.
  • This absence of legal protection underscores a gap in addressing the complete spectrum of women’s rights within marriage. Instances of non-consensual sexual activity perpetrated by a husband are left unaddressed, undermining the dignity and autonomy of women.

Indian Laws on Marital Rape

  • Within the Indian legal framework, the understanding and treatment of marital rape vary and often rely on judicial interpretations.
  • Section 375 of the Indian Penal Code (IPC) addresses rape:
    • Section 375 of the IPC defines the acts that constitute rape by a man.
    • However, the provision contains a crucial exemption: Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.
      • The provision lays down two exceptions:
        • Apart from decriminalising marital rape, it mentions that medical procedures or interventions shall not constitute rape.
        • Exception 2 of Section 375 of the Indian Penal Code states that “sexual intercourse by a man with his wife, and if the wife not being under 15 years of age, is not rape”.
      • In October 2017, the Supreme Court of India increased the age to 18 years.
    • The marital rape exception is premised on broadly two assumptions:
      • Consent in perpetuity: This is the assumption that once married, a woman gives her permanent consent, which she cannot retract. This concept in the colonial-era law is rooted in the idea that a woman is the ‘property’ of the man who marries her.
      • Expectation of sex: This is the assumption that a woman is duty-bound or is obligated to fulfill sexual responsibilities in a marriage, since the aim of marriage is procreation. And since the husband has a reasonable expectation of sex in a marriage, the provision implies that a woman cannot deny it.
    • Consequently, the legal stance on marital rape hinges on the age of the wife, leading to a complex landscape of legal protection and accountability.
  • Section 376 of the IPC:
    • Section 376 of the IPC outlines the punishment for rape, stipulating that a rapist should face imprisonment for a term not less than 7 years, extendable to life imprisonment, or for a term up to 10 years, along with a fine.
      • However, if the victim is the husband’s own wife and is not below 12 years of age, the punishment is reduced to imprisonment for up to 2 years or a fine, or both.
    • This disparity highlights a concerning absence of legal safeguards for women above the age of 15, contradicting established human rights principles.
  • Domestic Violence Act, 2005:
    • In 2005, the enactment of the Protection of Women from Domestic Violence Act recognized marital rape as a form of domestic violence.
    • It hints at marital rape by any form of sexual abuse in a live-in or marriage relationship.
    • This Act enables women to seek legal remedies for marital rape, offering an avenue for seeking legal separation from an abusive spouse.
    • However, it only provides for civil remedies. There is no way for marital rape victims in India to initiate criminal proceedings against their perpetrator.

History of the Marital Rape Law in India

  • Judiciary:
    • Kerala High Court: 
      • In 2021, Kerala High Court pronounced a judgment in which the court decided that even though marital rape isn’t recognised under the penal laws, it can act as a justifiable ground for divorce.
    • Karnataka High Court :
      • The Karnataka High Court had earlier held that a husband was liable to be charged for rape under the Indian Penal Code (IPC) if he has forcible sex with his wife.
    • Delhi High Court: 
      • The Delhi High Court has been hearing arguments in the case since 2015.
      • In January 2022, two judges of the Delhi High Court started to hear petitions filed by individuals and civil society organisations challenging the exemption.
      • By May 2022, they had arrived at a controversial split verdict. One judge was in favour of criminalising marital rape as it violated a woman’s right to consent, while the other was against it, saying marriage “necessarily” implied consent.
      • The matter was pushed to the Supreme Court.
    • Nimeshbhai Bharatbhai Desai vs State of Gujarat (2017) case:
      • In this case, the Gujarat High Court elaborately dealt with the issue of marital rape. 
      • The Court stated that “making marital rape an offense will remove the destructive attitudes that promote the marital rape”. 
      • However, due to the non-recognition of marital rape as a crime, the Court held that the husband is liable only for outraging her modesty and unnatural sex.
    • Independent Thought vs. Union of India (2017) case:
      • In this case, the Supreme Court  has criminalized sexual intercourse with a minor wife aged between 15 and 18 years. 
      • But, the SC refused to delve into the question of marital rape of adult women while examining an exception to Section 375.
    • Supreme Court:
      • In September 2022, a Supreme Court ruling on women’s right to safe abortions regardless of marital status held that for the purposes of the Medical Termination of Pregnancy Act, the definition of rape should include marital rape.
    • Law Commission of India:
      • The need to remove the marital rape exception was rejected by the Law Commission of India in 2000, while considering several proposals to reform India’s laws on sexual violence.
    • Justice JS Verma Committee:
      • In 2012, the Justice JS Verma Committee was tasked with proposing amendments to India’s rape laws.
      • While some of its recommendations helped shape the Criminal Law (Amendment) Act passed in 2013, some suggestions, including that on marital rape, were not acted on.
  • Parliament:
    • The issue has been brought up in Parliament as well.
    • Upon being questioned in a Parliament session in 2015, the idea of criminalising marital rape was dismissed with the view that “marital rape cannot be applied in the country since marriage was treated as a sacrament or sacred in the Indian society“.
  • Government’s Stand:
    • The Central Government initially defended the rape exception and later changed its stand and told the court that it was reviewing the law, and that “wider deliberations are required on the issue”.
    • The Delhi government argued in favour of retaining the marital rape exception.
      • The government’s arguments spanned from protecting men from possible misuse of the law by wives, to protecting the institution of marriage.

Issues with Marital Rape Exception

  • Against Basic Rights of Women:
    • This exception clause violates the women’s fundamental right to equality,freedom of speech and expression, and most of all the right to life and personal liberty.
      • It also denies the agency over their own bodies to women.
  • Dismal State of Judicial System:
    • Some of the reasons for low rates of prosecution in the cases of marital rape in India include:
      • Low reporting of crimes due to societal conditioning and low legal awareness.
      • Inaccurate method of collection of National Crime Records Bureau (NCRB) data.
      • Out of court settlements due to the lengthy process of justice/lack of admissible proof.

How did the Exception on Marital Rape find its way into the IPC?

  • British Colonial Rule:
    • The IPC was implemented in India during British colonial rule in 1860.
      • Under the first version of the rules, the marital rape exception was applicable to women over 10 years of age which was raised to 15 in 1940.
  • 1847 Draft of Lord Macaulay:
    • In January 2022, it was argued by amicus curiae (friend of the court) that the IPC is based on the 1847 draft of Lord Macaulay, the chairman of the First Law Commission established in colonial-era India.
      • The exception in the draft decriminalised marital rape without any age limit.
    • The provision is an age-old idea that implies consent by married women and protects the conjugal rights of the husband.
    • The idea of implied consent comes from the Doctrine of Hale, given by Matthew Hale, the then British Chief Justice, in 1736.
      • It states that a husband cannot be guilty of rape, since “by their mutual matrimonial consent and contract the wife has given up herself in this kind to the husband”.
  • Doctrine of Coverture:
    • According to the Doctrine of Coverture, a woman has no individual legal identity after marriage.
    • Notably, the Doctrine of Coverture found a mention during the hearing when the Supreme Court of India struck down adultery as a criminal offence in 2018.
      • It was held that Section 497, that classified adultery as a crime, is based on the Doctrine of Coverture.
    • This doctrine, although not recognised by the Constitution, holds that a woman loses her identity and legal rights with marriage, is violative of her fundamental rights.

How is Marital Rape Treated around the World?

  • According to Amnesty International data, 77 out of 185 (42%) countries criminalise marital rape through legislation. 
    • In other countries, it is either not mentioned or is explicitly excluded from rape laws, both of which can lead to sexual violence.
  • The United Nations has urged countries to end marital rape by closing legal loopholes, saying that “the home is one of the most dangerous places for women”.
  • Countries that have Criminalised Marital Rape:
    • United States– From 1993, Marital Rape was criminalised in all 50 states of the US but laws differ from state to state.
    • United Kingdom– Marital rape has also been criminalised in the UK and those found guilty could be sentenced to life imprisonment.
    • South Africa- Marital rape has been illegal since 1993 in South Africa.
    • Canada– Marital Rape is punishable in Canada.
  • The first country to criminalise marital rape was the Soviet Union (1922) and the UK (1991) and the US (1993) were amongst the last Western nations to do so.
  • Countries that have not Criminalised Marital Rape:
    • Ghana, India, Indonesia, Jordan, Lesotho, Nigeria, Oman, Singapore, Sri Lanka and Tanzania haven’t expressly criminalised marital rape of a woman or a girl by her husband.
Arguments For Criminalising Marital RapeArguments Against Criminalising Marital Rape
Consent and Autonomy: Marital rape laws emphasize that marriage does not imply perpetual consent to sexual activity.Cultural and Religious Considerations: Some opponents argue that criminalizing marital rape interferes with cultural and religious practices that uphold the belief that husbands have authority over their wives’ bodies within marriage.
Addressing Gender Inequality: Marital rape laws acknowledge and address the historical gender imbalances that have often marginalized women within the institution of marriage. Difficulty of Enforcement: Proving non-consensual sex within a marital relationship might be complex, and the legal process could result in difficulties, such as a lack of evidence or conflicting testimonies.
Protection from Abuse: Marital rape can be an extreme form of domestic violence, and criminalization provides legal protection to victims. Erosion of Family Values: Some opponents of criminalization argue that it could lead to the erosion of traditional family values by interfering with the sanctity of marriage and family life. 
Closing Legal Loopholes: By criminalizing marital rape, the law recognizes that rape is a crime regardless of the relationship between the parties involved.Presumption of False Accusations: Critics claim that criminalizing marital rape may open the door for false accusations, driven by motives such as revenge, divorce proceedings, or gaining an advantage in child custody battles.
Psychological and Emotional Impact: Marital rape can have severe psychological and emotional consequences for victims.Privacy and Intrusion: Some opponents argue that laws against marital rape could lead to unwarranted intrusion by the state into intimate and private aspects of married life.
Promoting Healthy Marital Relationships: Clear laws against marital rape promote healthy relationships based on mutual respect, trust, and communication.Potential for Legal Abuse: Critics express concerns that criminalizing marital rape might be misused as a weapon in contentious divorce or separation cases.

Way Forward

  • Indian law now affords husbands and wives separate and independent legal identities, and much jurisprudence in the modern era is explicitly concerned with the protection of women.
    • Therefore, it is high time that the legislature should take cognisance of this legal infirmity and bring marital rape within the purview of rape laws by eliminating Section 375 (Exception 2) of IPC.
  • There is a need for laws that clarify boundaries in how we relate to one another and uphold constitutional ideas of equality, dignity and bodily autonomy, alongside the unpleasant social realities about their limited use in practice.
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