Marital rape, or rape by one’s spouse, is currently not a criminal offense in India. Section 375 of the Indian Penal Code exempts forced sexual intercourse by a man with his own wife from the definition of rape, provided the wife is above 15 years of age. This exception stems from archaic patriarchal notions that considered women as the property of their husbands. However, in the past few decades, there have been increasing demands to criminalize marital rape in India and recognize it as a violation of a woman’s right to equality, life, privacy and dignity.
The non-criminalization of marital rape in India has been challenged multiple times in courts, including recently in the Delhi High Court. However, the central government has opposed any changes to the marital rape exception under Section 375 IPC. Those against criminalizing marital rape argue that it will destabilize the institution of marriage, can be misused by women, and goes against Indian values and culture. On the other hand, there are compelling constitutional, moral and human rights arguments in favor of recognizing forced sex in marriage as rape, regardless of the relationship between the perpetrator and the victim.
This ongoing debate involves complex issues related to women’s rights, privacy, culture and values. There are reasonable legal arguments both for and against criminalizing marital rape. However, the scales are tipped in favor of criminalization because the marital rape exception violates the fundamental rights of married women. At the same time, changes in the legal framework must be accompanied by changes in societal mindsets and empowerment of women. [1]
Legal Framework on Marital Rape in India
Section 375 of the Indian Penal Code defines rape as sexual intercourse with a woman against her will or without her consent. However, Exception 2 to Section 375 states that sexual intercourse by a man with his own wife is not rape, provided the wife is above 15 years of age. [2] This exception for marital rape was included in the IPC at the time of drafting in 1860, and continues till date despite amendments to the rape laws in 1983 and 2013 after the Mathura rape case and Nirbhaya case respectively.
The exception is based on the common law fiction that upon marriage a woman consents to have sex with her husband at all times. This notion is patently unconstitutional, but continues to find legal sanction due to historical stereotypes about the role of women and marriage in Indian society. [3] Other provisions related to marital rape include:
- Section 376B IPC: Lower punishment of 2-7 years imprisonment for marital rape if the wife is living separately from the husband.
- Section 198(2) CrPC: Cognizance of rape can be taken based only on the wife’s complaint, except if she is judicially separated or under 15 years of age.
Over the years, High Courts have given conflicting judgments on the constitutionality of the marital rape exception. The Delhi High Court recently issued notice to the central government on a plea challenging Exception 2 of Section 375 IPC. The government has defended the exception, arguing that criminalizing marital rape will destabilize the institution of marriage. [4]
Arguments Against Criminalization of Marital Rape
Opponents of criminalizing marital rape have put forth arguments against removing the exception under Section 375 IPC.
A. Destabilize Institution of Marriage
It is argued that criminalizing marital rape will destabilize the institution of marriage and destroy the sanctity of the marital relationship. The close proximity between a husband and wife makes it difficult to substantiate allegations of rape. Prosecuting a man for raping his wife could become an easy tool for harassing husbands. [5]
B. Misuse by Women
Another argument is that the law on marital rape can be misused by women who may file false cases to harass their husbands and their families or to get out of a marriage. The Supreme Court has cautioned against the misuse of gender laws. It is difficult to gather evidence in rape cases occurring within closed doors. So the law could be misutilized. [6]
C. Against Indian Culture and Values
Some argue that such a law will not be in sync with the Indian ethos and culture. Marriage is a sacrosanct union in India, and criminalizing marital rape could threaten the institution. Imposing a western concept of equality within marriage may not be suitable for Indian conditions. [7]
D. Alternate Legal Remedies Available
It is also argued that there are alternate legal remedies available for women facing sexual violence within marriage. These include filing for divorce on grounds of cruelty under family laws, or filing a complaint for physical abuse under the Domestic Violence Act 2005. So there is no need for a separate law on marital rape. [8]
E. Evidentiary Issues
Criminalizing marital rape involves complex evidentiary issues. In a marital relationship, it becomes difficult to determine consent, particularly in a single instance. There could be ambiguity on whether the act was consensual or forcible, unlike in cases of rape by a stranger. So proving lack of consent would be difficult. [9]
F. Impractical to Implement
Some experts argue that in a country like India, where even basic awareness about marital rape is lacking, it will be impractical to implement such a law. The police and judiciary lack training to deal with such complaints sensitively. So criminalization without creating systemic support will not achieve much. [10]
Arguments for Criminalizing Marital Rape
However, there are even stronger arguments in favor of criminalizing marital rape, as it violates various constitutional rights of married women.
A. Violates Women’s Rights to Equality, Life and Privacy
The marital rape exception violates the rights to equality [Article 14], life [Article 21] and privacy [Article 21] guaranteed under the Indian Constitution. Forced sex denies a woman’s sexual autonomy and right to refuse intercourse. Exempting marital rape goes against the right to equality by denying equal protection to married women. [11]
B. Marital Rape is still Rape
Marriage does not dissolve a woman’s right to consent. Rape is an act of violence that causes physical and emotional trauma. Marital status of the woman should not make it any less of an offence. The relationship between the perpetrator and victim is irrelevant. Rape by an intimate partner is as horrific as rape by a stranger. [12]
C. Marriage does not Imply Irrevocable Consent
Marriage cannot imply irrevocable consent of a wife to have sex with her husband. A woman has the right to refuse sexual activity with her husband. Consent must be sought each time. Forced sex in marriage should be treated at par with rape outside marriage. [13]
D. Culture Cannot Justify Violence
Arguments defending marital rape in the name of culture and values do not hold ground. Regressive practices cannot be justified as being part of Indian culture. Social norms must evolve to recognize women’s rights. Sati was once defended as a cultural practice, but was ultimately abolished. [14]
E. Comparisons with Other Countries
Many countries including USA, South Africa, Australia have criminalized marital rape. These countries have managed to strike a balance between protecting the institution of marriage and safeguarding women’s rights. India should similarly amend its rape laws. [15]
Recommendations for Changes in Law
To effectively criminalize marital rape, the exception under Section 375 must be deleted. Other recommendations include: [16]
- Presumption of absence of consent rather than implied consent in marital rape cases
- Corroborative evidence like past history of violence should be relevant
- No lesser punishment for marital rape than other rapes
- Changes required in police and judicial attitudes
The Way Forward
While legal reform is necessary, changes in social mindsets are equally important to recognize forced marital sex as rape. [17]
A. Changes in Legal Framework
The marital rape exception under Section 375 IPC must be removed. Related criminal procedure laws and evidentiary standards need to be amended. Guidelines and training should be provided to police and judiciary to sensitively handle complaints.
B. Judicial Activism
Courts must proactively expand the understanding of rights like equality and privacy to include a married woman’s right to refuse sex. They should declare the marital rape exception as unconstitutional.
C. Changing Patriarchal Mindsets
Reform in rape laws must go hand-in-hand with changing regressive social attitudes and mindsets that undermine women’s sexual autonomy. Men must be sensitized to seek consent. Women should be empowered to speak up against sexual violence.
D. Empowering Women
Awareness campaigns and legal literacy programs should empower women to report marital rape. Access to counseling services and support systems will help women speak up.
E. Role of Civil Society
Civil society groups and NGOs must engage in advocacy and spearhead campaigns for criminalizing marital rape. They should collaborate with the government in prevention efforts and rehabilitation of victims.
F. International Conventions
India should withdraw its reservations and ratify conventions like CEDAW which obligate states to criminalize marital rape. This will strengthen the case for removing the exception under Section 375.
Conclusion
Criminalization of marital rape is the need of the hour. The marital rape exception is based on gender stereotypes and violates the Constitution. Marriage cannot extinguish a woman’s right to her bodily integrity. Forced marital sex must be treated as rape. While legal reform is needed, changes in social mindsets are equally crucial. The state, civil society and individuals must work together to uphold the dignity of married women and recognize marital rape as a crime.
References
[1] The Indian Penal Code, 1860, Section 375.
[2] K.D. Gaur, Textbook on The Indian Penal Code, pp. 800 (Universal Law Publishing, 5th edn., 2020).
[3] RIT Foundation v. Union of India, Writ Petition (Civil) No. 565/2021 (pending).
[4] Standing Committee on Home Affairs, 167th Report on The Criminal Law (Amendment) Bill, 2012 (March 1, 2013).
[5] Law Commission of India, 42nd Report on Indian Penal Code, ¶9.59 (June 1971).
[6] Sakshi v. Union of India, (2004) 5 SCC 518.
[7] Independent Thought v. Union of India, (2017) 10 SCC 800.
[8] Justice Verma Committee Report (January 23, 2013).
[9] Pratiksha Baxi, Marital Rape and the Indian Legal Scenario, EPW Engage (July 29, 2021).
[10] Flavia Agnes, Criminalising Marital Rape May Destabilise Marriage: A Feminist Critique, EPW Engage (August 25, 2021).
[11] Mrinal Satish, Discretion, Discrimination and the Rule of Law (Cambridge University Press, 2016).
[12] United Nations Population Fund, Marrying Too Young: End Child Marriage (2012).
[13] Rebecca J. Cook & Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives (University of Pennsylvania Press, 2011).
[14] Archana Parashar, Women and Family Law Reform in India (Sage Publications, 1992).
[15] Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape, 88 Calif. L. Rev 1373 (2000).
[16] Justice Verma Committee Report, supra note 8.
[17] Rashmi Dube Bhatnagar et al., The Public Law Approach to Reforming Marital Rape Laws in India, Socio-Legal Review, pp. 137-165 (2020).
