By Adv. Mohini Priya, Pallav Arora, Palak Mathur
MARITAL RAPE
Throughout the history of most societies, it has been acceptable for men to force their wives
to have intercourse against their will. The traditional definition of rape in most countries was
‘sexual intercourse with a female not his wife without her consent’. This provided the
husband with an exemption from prosecution for raping their wives—“a license to rape”.
The foundation of this exemption can be traced back to statements made by Sir Matthew
Hale, Chief Justice in 17th Century England. Lord Hale wrote that:
‘the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their
mutual consent and contract, the wife hath given up herself this kind unto her husband which
she cannot retract.’
The tenets of the marital rape exemption were based on the notion of ‘irrevocable implied
consent’. As per this notion, once a woman is married to a man, there is believed to be
implied consent to sexual intercourse, which is irrevocable in nature.
The other traditional justifications for the marital exemption were the common law doctrines
that a woman was the property of her husband and that the legal existence of the woman was
‘incorporated and consolidated into that of a husband.’
PREVIOUS JURISPRUDENCE
In the case of State of Maharashtra v. Madhkar Narayan ((1991) 1 SCC 57) , the Supreme Court ruled that
every woman has the right to her sexual privacy, and that no one has the authority to violate
such private at any time.
The Supreme Court, in the landmark decision of Vishakha v. State of Rajasthan ((1997) 6 SCC 241) , extended this right of privacy to working situations as well. In a similar vein, we may deduce that even
inside a marriage, there is a right to privacy when it comes to sexual relationships.
The Kerala High Court held in Sree Kumar vs. Pearly Karun (1998 SCC OnLine Ker 353) that the offence under Section 376A of the IPC will not be prosecuted because the spouse is not living independently from
her husband under a declaration of partition or any custom or use, regardless of the
possibility that she is subjected to sex by her better half without her consent. In this case, the
spouse was forced to have sex against her will by her husband when she went to live with
him for two days as part of a settlement of separation proceedings between the two parties.
As a result, the spouse was found not guilty of raping his wife, despite the fact that he had
done so.
The judiciary appears to have completely abandoned the notion that rape inside marriage is
unfeasible or that a woman’s shame from assault may be cleansed by marrying the
perpetrator.
The Protection of Women from Domestic Violence Act of 2005 was approved in 2005, and
while it did not make marital rape a felony, it did make it a type of domestic violence.
If a woman has been the victim of marital rape, she can go to court and obtain judicial
separation from her husband under this Act. However, the same does not completely insulate
women from the effects of crime.
EXISTENT LEGAL POSITION
Sexual intercourse by the husband is not rape when the lady is married and not less than
fifteen years old, according to Indian law, exemption to section 375, IPC. Prior to the 2013
change to the IPC, when the wife was between the ages of 12 and 15, the punishment was
dramatically lowered, and may have been up to two years in prison or a fine. Only when the
wife was under the age of 12 was it considered rape.
The 2013 amendment removed this phrase, but did not acknowledge the idea of marital rape,
opting to stick with the previous legal framework. It is important to note that the Justice
Verma Committee Report suggested that the IPC’s marital rape exception be repealed. The
acceptance of the notion of primacy and supremacy of the husband’s right over that of the
wife, even though she is much below the legal age of marriage, is a unique feature of Indian
law. The legal implication of not recognising forceful intercourse with a minor wife (between
the ages of 15 and 18) as rape is that similar intercourse with an adult wife is not considered
marital rape at all.
The sole case in which the law intervenes is in the case of legally separated spouses who are
not living together under section 376-B of the Indian Penal Code, and the great majority of
marital rape falls beyond the scope of the law. In the Haree Mohan Mythee case, the court
concluded that a husband does not have an unfettered right to enjoy his wife’s person without
consideration for her safety. According to this ruling, the only time the law recognises an
infringement on a husband’s fundamental right to sexual intercourse is when it becomes
exceedingly harmful to the woman owing to bodily disease or other serious repercussions
such as death.
As a result, no attempt has been made under Indian law to provide even a semblance of
protection to a married woman’s right to bodily or sexual autonomy.
In the current situation, there is little chance for future reforms in terms of the
acknowledgment of marital rape of adult women, and even minor wives between the ages of
15 and 18 are dealt with significantly less severity.
Under the 156th Law Commission Report, the Commission indicated its unwillingness to
raise the age of wife in Exception to S-375 IPC from 15 to 18 years, without giving any
specific reasons.
The Supreme Court has evaluated the extent and feasibility of exception 2 to section 375 IPC
in a writ case brought in the public interest by an organisation called Independent Thought ((2017) 10 SCC 800).
The court was asked to assess whether a husband may be charged with marital rape if he had
sexual contact with his wife when she is between the ages of 15 and 18. This is a major
Supreme Court ruling, in which the court rules-
‘Exception 2 to s-375 of the Indian Penal Code answers this negatively, but in
our opinion sexual intercourse with a girl below 18 years of age is rape
regardless of whether she is married or not. The exception carved out in the IPC
creates an unnecessary and artificial distinction between a married girl child and
an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. The artificial distinction is arbitrary and discriminatory
and definitely not in the best interest of the girl child’
The artificial distinction is also opposed to the idea and ethos of articles 15(3) and 21 of the
Constitution, as well as international treaties, according to the court. It clearly violates the girl
child’s physical integrity and reproductive choices.
The petitioner society pointed out that anyone who has sexual intercourse with a girl child
under the age of 18 will be liable for statutory rape, even if the minor girl consents, and that
the situation is even more absurd when the offender is her husband, because the marital
exemption applies in such cases, and the husband is completely exempt from punishment.
The right of such a female child to bodily integrity and to refuse sexual contact with her
spouse is stripped away by her marriage. She does not become emotionally or physically fit
for such judgments just because she is married.
The Independent Thought decision is an excellent example of judicial activism and artistry in
providing a socially desirable meaning to a clause in the law that incorporates a dead notion.
However, it is rather sad to observe that the Supreme Court has indicated unequivocally on
several times that it would not comment on marital rape in general if the wife’s age is 18 or
more than 18 years.
MARITAL RAPE: A LOOPHOLE IN RAPE LAWS
Few questions such as ‘Does the marriage registration certificate terminate the importance of
consent?’, or ‘Does the title of a ‘husband’ allow the man or give him the right to force
himself upon his wife, even if she asks him not to?’ pop up whenever the concept of marital
rape strikes up in a conversation. If, as a nation, India, has made such strict laws regarding
rape, then why is it still one of the 36 nations that haven’t yet criminalised marital rape?
A country where marriage is given so much priority, and where it is considered as one of the
most pious relation that a man and a woman share, then how does it give the man in the
relationship the right to humiliate his wife physically, mentally and emotionally.
If we go as per the statistics then according to the Indian government’s latest National Family
Health Survey, about 30% Indian women aged 18-49 reported having experienced spousal
violence. In terms of sexual violence, the average Indian woman is 17 times more likely to
face sexual violence from her husband than from anyone else, according to the survey of
724,115 women (See https://www.npr.org/sections/goatsandsoda/2022/02/08/1047588035/marital-rape-india).
Section 375 of the IPC is the only legal provision that within its language differentiates
between two people on the basis of their marital status. Isn’t this a violation of Article 14 of
the Constitution of India? Are women not allowed to feel safe just because they agreed to
share a marital relationship with someone? Are pre existing patriarchal norms predominant
over the best interests of an individual?
RECENT DEVELOPMENTS
A recent PIL filed in the Delhi High Court has sparked a judicial discussion over the
legitimacy of section 375, IPC, exception 2 – the marital rape exemption provision. Hearing
the PIL challenging the criminal code clause, a division bench of acting Chief Justice Gita
Mittal and C. Hari Shankar J stated that “marital rape is a severe issue that has notoriously
become a part of the society.”
The RTI Foundation filed the PIL in 2015, and other people and institutions18 have also
moved the High Court of Delhi to challenge the exemption under sections 375 and 376B of
the Indian Penal Code, claiming that it criminalises marital rape. The exception is unlawful,
according to the PIL, and infringes married women’s rights under Articles 14, 15, 19, and 21
of the Constitution. One of the petitioners has challenged the provisions of the Cr PC, which
are to be read in conjunction with section 376 IPC, on the basis that they mandate
discriminatory procedure and penalty, which is arbitrary and unconstitutional.
The Indian government has filed an affidavit with the Delhi High Court, stating that “it must
be assured properly that marital rape does not become an easy weapon for harassing
spouses.” According to the affidavit, criminalising rape “may destabilise relationships and
expose males to harassment by their spouses.”
Because of traditional and patriarchal customs, there is virtually little data on domestic abuse,
including marital rape. Several nations, including Nepal, the United States, the United
Kingdom, and South Africa, have made marital rape illegal, but the Indian government’s
response has been exceedingly sexist and disrespectful. Because there may be cultural
differences on the problem of marital rape, the Central Government has declared its desire to
enlist “State Governments.”
CONCLUSION
The observations of the Court so far show a slight inclination towards a reading down of the
said provision. Additionally, none of the submissions by the State so far have given any
convincing quantifiable proof of any prospective damage that may accrue to the society. It is
high time that this legal vacuum is settled for good.
