Marital Rape In Indian Jurisprudence

Authored by Hridyansh Yadav, 1st-year B.A.LL.B.(Hons.) student at Dr. B.R. Ambedkar National Law University, Sonepat, Haryana

Abstract:

Marital rape remains a contentious and under-addressed issue within Indian jurisprudence, where cultural, legal, and societal factors intersect. Despite significant reforms in laws governing sexual offences, including the Criminal Law (Amendment) Act, of 2013, which broadened the definition of rape, marital rape continues to be exempted under Indian law, citing marriage as a defence against allegations of rape. This article examines the historical context, legal framework, and societal implications surrounding marital rape in India. It explores judicial interpretations, legislative efforts, and the socio-cultural challenges hindering progress toward criminalizing marital rape. Additionally, the article analyzes comparative perspectives from other jurisdictions and international human rights standards, highlighting the discrepancies and the urgent need for legal reform to ensure equal protection and justice for victims of marital rape. Through a critical review of case law, legislative debates, and scholarly analysis, this article advocates for comprehensive legal reforms that recognize marital rape as a criminal offence, dismantle stereotypes, and uphold the fundamental rights of married women in India.

Introduction

Marriage is an anthropological, cultural, and legal institution, that establishes socially sanctioned rights and obligations between individuals. In many cultures, marriage forms the basis for acknowledgement of sexual relationships. However sexual violence and physical aggression within marriages have traditionally formed a grey legal area.
Marital rape refers to “forcible sexual assault or violence by one spouse towards the other.” In other words, it’s the act of sexual intercourse with a spouse without his/her spouse’s consent. Marital rape is mostly, but not exclusively, experienced by women, it tends to form a vicious cycle of abusive relationships between the couple, perpetuating chronic violence, this also varies based on sociocultural and political ideologies.

Men are of the view that women’s consent is not necessary as they are their property after marriage. Women have been struggling with it for a very long time. Despite this, society has mostly ignored this. Many public health issues are brought on by marital rape which includes sexually transmitted illnesses including HIV and other STDs, vaginal infection, genital irritation, sex-related pain, persistent pelvic pain and UTIs. The physical abuse associated with marital rape can interfere with pregnancy and result in health problems for both the mother and the fetus. Some of the mental health consequences of marital rape and other forms of interpersonal abuse include depression, anxiety, emotional pain, and suicidal thoughts. Two more ways that marital rape and violence impair children’s health and well-being are the psychological repercussions of seeing violence and the potential impact on mothers’ ability to care for themselves and their children. The experience of marital rape has been rendered invalid for its victims in terms of law, culture, and the workplace. As a result, the victims of this crime continue to face substantial treatment due to the proliferation of invalidation. Many women give up their lives because of society’s avoidance and the years-long stigma that is prevalent in society.

Articles 14 and 21 of the Indian Constitution enshrine the basic right to equality and the right to life respectively, for every citizen of India. The presence of these articles enables every individual citizen of our country to live with dignity without abuse or any form of violation of these rights. However, due to stringent patriarchal constructs of the Indian marriage laws, the basic fundamental rights are exploited on a large scale, as far as gender-based and minority crimes are concerned. Society, civil administration, and family most actively results in the very idea of marital rape in the first place, deeming it to be a part and parcel of married life. Moreover, in many cases, it has been found that the wife herself, owing to illiteracy or strict social customs does not give a thought to the “crime” (marital rape) that she endures every night.

Marital rape around the world: –

Out of 195 countries in the world, 77 have laws that clearly criminalize marital rape while there are 34 countries that explicitly decriminalize marital rape, or in essence, offer immunity to men who perpetrate rape against their wives. India is one of those 34 countries that have decriminalized marital rape.

Few examples of countries that have criminalised marital rape:-

United States- From 1993, Marital Rape was criminalised in all 50 states of the USA 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.

Many countries such as Ghana, India, Indonesia, Jordan, Nigeria, Oman, Sri Lanka, Tanzania and many others haven’t expressly criminalised marital rape of a women or a girl by her husband.

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”.

Indian law on Marital Rape: –

In India Marital Rape is covered under two areas:-

Section 375 of the Indian Penal Code(IPC) 1860

Section 375 defines the acts that constitute rape by a man.
The provision, however, lays down two exceptions as well:-

Apart from decriminalizing marital rape, it mentions that medical procedures or interventions shall not constitute rape.
Exception 2 of section 375 of IPC states that “sexual intercourse by a man with his wife and if the wife not being under fifteen years of age, is not rape”.
In October 2017, the Supreme Court of India increased the age to 18 years.

Domestic Violence Act, 2005:-

It hints at marital rape by any form of sexual abuse in a live-in or marriage relationship.
However, it only provides for civil remedies. There is no way for marital rape victims in India to initiate criminal proceedings against the perpetrator.

History of Marital Rape Law in India:-

Judiciary:-

Delhi High Court:-

2015 – Petitions to criminalize marital rape filed in Delhi High Court.
August 2017 – Central govt. said criminalizing marital rape may destabilise the institution of marriage.
January 7, 2022 – Delhi High Court begins hearing the case
January 13 – The Centre tells the High Court that it is in talks with the stakeholders.
January 17, 2022 – High Court asks the centre to clarify its position
February 1, 2022 – “Relooking” at the earlier stand; Centre tells High Court
February 21, 2022 – High Court refuses to grant more time to centre, reserves verdict on petitions.
May 11, 2022 – High Court delivers split verdict:- Justice Rajiv Shakdher was in favour of criminalising marital rape as it violated a women’s right to consent, while Justice C Hari Shankar was against it, saying marriage “necessarily” implies consent.
The matter got pushed to the Supreme Court

Supreme Court:

In September 2022, a supreme court running on women’s right to safe abortion 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 ape was dismissed with the view that “marital rape cannot b 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.

Famous Cases Dealing with this matter:-

Independent Thought v. Union Of India – The Supreme Court held that sexual intercourse with a girl below 18 years of age, even if she is a wife, is rape.
RIT Foundation v, Union OF India – The Delhi High Court directed the government to consider amending laws to make marital rape a criminal offence.
Kavita v. Haryana State– The case addressed the subject of marital rape and the need for legal protection for women in abusive marriages. In this case, the High Court of Punjab and Haryana decided that the exemption in the Indian Penal Code (IPC) that exempts a husband from rape charges was discriminatory and needed to be examined.

Time to Take Action:-

There have been several welcome moves in India in this regard. In Independent Thought vs Union of India, the Supreme Court held that “Constitutionally females have equal rights as of males and no statute or act can take away those rights from females and if such statute or an act is passed regarding the same, it should be declared as null and void.” The Gujarat High Court has mentioned this in this regard.

However, there is a long way to go. Specific legal provisions, widespread public awareness, media cooperation, inclusion of the voices of survivors, and tailored social services are urgently needed to eliminate the nuisance of marital rape. The legal and social paradox related to marital rape in our country has led to several structural inequalities and gender-based vulnerabilities. As per Nigam, “the culture of silence, tolerance, adjustment, compromise among women is propagated to save and respect the honour, the pride and the values of the Indian family overlooking the fact that incest, violence, suicides and murders are the price that women pay.”

According to the United Nations Declaration on the Elimination of Violence against Women, violence against women is defined as “any act of gender-based violence that results in, or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.” In light of the above, the old redundant laws related to rape in our country need urgent modification to prevent this violence behind closed doors. Rape is rape, irrespective of the victim-perpetrator relationship/intimacy as well as the circumstances of the assault. Marriage cannot and will not serve as a license for the same. Marital rape is in no way less traumatic than other forms of sexual violence. Hence, it is high time we change the social narrative about marital rape through public education, advocacy, battling social myths, lived experience research, and finally a constructive dialogue with policymakers to make the necessary legislative changes.

Every effort matters!