Author: This article “The Prospects of Criminalizing Marital Rape” is written by Anant Gupta, 3rd Year B.A.LL.B. (Hons.) student at Dharmashastra National Law University, Jabalpur Email – firstname.lastname@example.org
UNMASKING THE ENIGMA: THE PROSPECTS OF CRIMINALIZING MARITAL RAPE
Since the inception of the current year, an influx of petitions has been brought before the Delhi High Court, seeking the suspension of an exception delineated within Section 375 of the Indian Penal Code. This provision affords legal protection to husbands in the context of matrimony when they compel their wives into non-consensual sexual intercourse. It is noteworthy that India is among the 36 nations globally that have yet to proscribe marital rape as an offense. This list includes, among others, countries such as Afghanistan and North Korea.
The contentious issue of criminalizing marital rape has engendered extensive debate within scholarly, sociological, and academic circles. Eminent experts, social scientists, and scholars are proffering their perspectives on the matter, deliberating on the necessity and implications of such criminalization. This article will undertake an examination of both sides of the argument and endeavour to ascertain which perspective aligns more cogently with logic and legal principles.
What is marital rape?
Section 375 of the Indian Penal Code delineates rape as the act of engaging in sexual intercourse without the voluntary consent of the victim. Marital rape, on the other hand, can be characterized as the act of sexual intercourse by a husband with his wife without her explicit consent. The pivotal distinction between rape and marital rape lies in the context in which the act transpires, with marital rape being situated within the institution of marriage, a facet provided with a “defensive” framework within our constitutional provisions. Exception 2 of 375 IPC mentions, “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”.
The omission of any rationale for this exclusion raises concerns as it infringes upon the bodily autonomy of married women, depriving them of their fundamental rights to life, dignity, and freedom of choice. This provision presupposes consent solely within the confines of a legal marital union. In such cases, the concept of ‘marital rape’ itself becomes contradictory.
This antiquated legal provision, which grants this exemption, gives rise to a series of inquiries. Do the courts or legislative bodies possess the authority to address this matter? Are the state’s apprehensions regarding the preservation of the institution of marriage justified?
Validity of Marital Rape in the light of constitution
In May 2022, the Delhi High Court rendered a divided judgment in the matter of RIT Foundation v. Union of India, concerning the criminalization of marital rape within the nation. Justice Rajiv Shakdher invalidated the prevailing statute on constitutional grounds, asserting that the fundamental right of women to withdraw consent constitutes a pivotal element of their right to life and liberty. Conversely, Justice C. Harishanker dismissed the petition for the criminalization of marital rape, highlighting the necessity for legislative action to effect this change, given that the matter demands a comprehensive evaluation encompassing societal, cultural, and legal dimensions.
In India, the absence of legal immunity against marital rape is conspicuous. Section 375 unequivocally excludes spousal rape from the purview of rape, thereby creating a clear violation of Article 14 of the Indian Constitution, which enshrines the right to equality. Paradoxically, in cases of rape, an offender may face the most severe penalty, including the death sentence, while the same act committed by a husband against his wife goes unpunished, thereby creating an unjust differentiation between married and unmarried women.
A contentious issue arises when the central government invokes Section 498A of the Indian Penal Code, which stipulates a maximum punishment of 3 years of imprisonment for spouses or their family members involved in domestic violence against a wife, along with the possibility of a fine. This starkly contrasts with the minimum 20 years of rigorous imprisonment mandated for rape cases in India, vividly illustrating the discriminatory treatment of married and unmarried women under the law.
Section 376 of the Indian Penal Code merits attention as well, for it deems sexual intercourse by a husband with a wife living separately as a criminal offense, subject to a minimum 2-year imprisonment, extendable to 7 years and a fine. However, this section remains silent on protecting women living with their husbands, thus failing to safeguard their rights.
This legal landscape further transgresses Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty, by failing to secure the rights of victims of marital rape.
Arguments against criminalization of marital rape
The foremost impediment hindering the criminalization of marital rape pertains to the federal government. Despite numerous petitions submitted before the higher echelons of the judiciary, challenging the exception stipulated in the Indian Penal Code, the central government persistently extends protection to individuals accused of spousal rape. It is imperative to scrutinize the primary arguments invoked in opposition to the criminalization of marital rape.
It’s against Indian culture
In August 2019, Chief Justice of India Deepak Mishra posited that the criminalization of marital rape should be eschewed on the grounds that it could precipitate widespread disorder within families and disrupt the self-sustaining societal values of India. This argument rests upon the premise that the adoption of legal measures to criminalize marital rape may not yield the same outcomes in India as it has in Western nations due to the substantial socio-economic disparities prevailing in the country. The confluence of diverse social customs, deeply ingrained religious beliefs, a relatively low literacy rate, prevailing societal attitudes, and pervasive poverty collectively engenders an environment where the populace may not be prepared for the criminalization of marital rape.
In a 2010 scholarly paper titled ‘Rape Within Marriage in India: Revisited,’ Professor (Dr.) K I Vibhute discerned that the primary rationale behind this stance lies in the safeguarding of the institution of the family. This safeguarding involves the prevention of false, fabricated, and potentially motivated allegations of ‘rape’ made by a ‘wife’ against her ‘husband,’ and addresses the practical procedural complexities that may arise in the context of legal proceedings of such nature.
Once married, women’s perpetual consent is implied
The entrenched notion that upon marriage, a woman confers enduring and uninterrupted sexual consent to her husband is evident in a recent disconcerting public sentiment survey conducted by ScoopWhoop on the streets of Delhi regarding marital rape. However, the legal system is expected to transcend and supersede societal biases, acting as a guardian of rationality over personal sentiments.
Yet, Indian laws still harken back to the 1700s, when Matthew Hale of England pronounced that “the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife has irrevocably surrendered herself to her husband.” Another antiquated rationale for the non-recognition of marital rape finds its roots in William Blackstone’s 1753 defense of the common law doctrine of coverture, defining a married woman as the property of her husband. Blackstone argued that “[B]y marriage, the husband and wife are legally one person: essentially, the legal existence of the woman is suspended during the marriage…”
Despite legal reforms in England and Wales in 1991, as articulated by Lord Keith, acknowledging modern marriage as a “partnership of equals” where the wife is no longer seen as subservient property, Indian laws concerning marital rape remain unaltered. This is in stark contrast to a 2017 Gujarat high court ruling in the case of Nimeshbhai Bharatbhai Desai vs State of Gujarat that unequivocally states: “The notion of ‘implied consent’ in marriage should be abandoned without delay. The law must safeguard the bodily autonomy of all women, regardless of their marital status.”
Women will misuse any law against marital rape
In the affidavit presented by the union government before the Delhi High Court, it was articulated that the criminalization of marital rape would institute a novel transgression, potentially becoming a convenient instrument for subjecting husbands to harassment. The argument posited was that deeming all conjugal sexual intercourse as constitutive of rape would vest the exclusive determination of marital rape in the hands of the wife.
The recurrent deployment of the notion that women might exploit the law has recurred in the context of various legislations enacted to safeguard women, including the Dowry Act, Section 498A, and the Protection of Women from Domestic Violence Act, all of which criminalize physical and psychological maltreatment inflicted by a spouse upon a woman. Deepika Narayan, an advocate for men’s rights, penned an article in 2020, highlighting the misuse of Section 498A. Her article stated:
A total of 111,549 cases were registered under Section 498A in 2020. Among these, 5,520 were dismissed by the police as false, and a total of 16,151 cases were dismissed by the police due to a lack of merit, errors in fact or law, or because they pertained to civil disputes, among other reasons. This amounts to 14.4% of cases being rejected by the police for want of a valid basis. In the previous year, 96,497 men and 23,809 women were arrested under Section 498A, resulting in a total of 120,306 arrests under this provision.
Out of the 18,967 cases that went to trial, 14,340 ended in acquittals, while 3,425 led to convictions. As of the close of 2020, there were 651,404 pending cases under Section 498A, with a pending rate of 96.2%.
There exists no direct empirical evidence pointing to a widespread abuse of this legislation, apart from the relatively low conviction rates in dowry and domestic violence cases. Nevertheless, it is an established fact that 2 out of every 5 women in India experience some form of violence, be it physical, sexual, or emotional.
Arguments for criminalization of marital rape
Many contend that issues pertaining to spousal relationships fall under the purview of the “Protection of Women from Domestic Violence Act 2005,” thus obviating the necessity for specific legislation addressing marital rape or the removal of the exception in IPC section 375.
The Domestic Violence Act may be argued to encompass the offense of marital rape, given that it defines “sexual abuse” as one of the acts or behaviours constituting “domestic violence.”
Nonetheless, this legislation is perceived as inadequate in addressing marital rape cases for two primary reasons:
- Although the term “sexual abuse” is referenced, the act does not explicitly delineate “rape” as defined in IPC section 375.
- Judicial authorities have classified the Domestic Violence Act as a “civil law,” allowing the accused to evade imprisonment.
Consequently, a lacuna exists, allowing husbands who commit rape to evade incarceration. While the option of divorce is available to women, it is insufficient in cases of rape. Furthermore, a civil law, by its inherent nature, proves inadequate in addressing a grievous issue like rape, even within the confines of marriage. Presently, there is no provision for a woman to file a criminal case against her husband in instances of marital rape.
The underlying assumptions behind the marital rape exception are as follows:
- It presumes that when a couple weds, the woman’s consent is perpetual, and she is unable to revoke the consent she granted to her husband at the time of marriage. This notion is rooted in colonial-era laws that continue to influence our legal framework, thereby perpetuating colonial-era shortcomings.
- The other premise is that a reasonable expectation of sexual relations exists in a marriage, and, consequently, the wife is obligated to fulfil her husband’s sexual expectations. While sexual intercourse is an integral aspect of marriage, and both partners are expected not to withhold it, the assumption of perpetual consent, even to the point of forced intercourse, poses a predicament for women enduring abusive marriages where rape is used as a means of torment by the husband.
What have the courts said in earlier instances?
There are many instances where one court contradict another based on their interpretation. We will look upon the most important cases which deals with marital rape and its aspects.
As per the pronouncement of the Supreme Court, it was adjudicated that sexual transgressions, concomitant with the affront to one’s dignity, constitute an illicit encroachment upon the inviolability and sanctity of a woman. Correspondingly, the judiciary decreed that unconsented carnal interactions amount to both physical and sexual violence.
Supreme Court on October 2017 delivered a landmark judgment on exception 2 of the section 375 of the IPC which reads as “Sexual Intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” It is based on the argument that there are around 23 million child brides in the country that means below 18 years. This gives liberty to the husband of 15-18 years girls that they can have sexual intercourse with their wives without her consent and he would not be punishable for the same.
The most compelling legal argument, with a foundation in established legal precedents, can be found in this pivotal case. The Supreme Court in this landmark judgement duly recognized the right to privacy as an inherent fundamental right. The court explicitly articulated that this right encompassed “decisional privacy, characterized by the capacity to make intimate decisions, primarily pertaining to one’s sexual or procreative nature and choices regarding intimate relationships.” Coerced sexual intercourse and cohabitation represent a breach of this fundamental right. Notably, this legal ruling does not discriminate between married and unmarried women, and there exists no explicit mandate (thankfully) that abrogates women’s fundamental right to privacy upon entering into marriage. Consequently, all women possess the intrinsic right to provide consent and to withhold it.
In this instance, a woman has lodged a grievance against her spouse, alleging that he compelled her into non-consensual coitus on numerous occasions, resulting in severe psychological and physical distress. The court has elucidated that the solitary legal recourse available to the aggrieved party is Section 498A of the Indian Penal Code, as marital rape is not deemed an actionable offense, rendering the husband immune to punitive measures in this regard.
In this particular case, the Supreme Court pronounced that the autonomy to exercise discretion regarding matters of sexual conduct comfortably resides within the purview of Article 21 of the Constitution, encompassing the entitlements to individual liberty, privacy, honour, and corporeal inviolability.
The way forward
Should Indian legislators require guidance in elucidating the legal codification of marital rape within our statutes, a salient directive may be gleaned from the pronouncement of a bench presided over by Acting Chief Justice Gita Mittal and C Hari Shankar of the Delhi High Court. It is articulated therein that “Matrimonial union does not ipso facto imply the perpetual, unreserved, and consensual readiness of the woman for sexual intercourse. It is incumbent upon the man to substantiate the woman’s voluntary acquiescence.” The elucidation, at its core, adheres to this fundamental simplicity.
Amidst the negotiations between constitutional rights and an overarching structural narrative, when the concept of autonomy becomes elusive, it is imperative to transcend the rigid distinction between the public and private domains. The efficacy of constitutional rights is often confined to the public sphere defined by the state, but a horizontal approach challenges this status quo.
This horizontal approach has three key implications.
Firstly, by refraining from restricting the application of fundamental rights solely to the public sphere, it invalidates the state-centric strategy of selectively intervening in the private sphere.
Secondly, the Constitutional Assembly Debates establish the individual as the primary focus of fundamental rights. Given that the core objective of constitutional rights is to empower the individual, it is paramount to shift the discourse from the private sphere to one centred on individual autonomy.
Lastly, the Constitution was not only conceived as a means to liberate from colonial rule but also as a blueprint for societal transformation against conservative forces. It serves as a platform for democratizing both public and private spheres. The horizontal application of constitutional rights not only acknowledges the repressive elements, notably patriarchy, but also uplifts individuals who occupy the lower echelons of these hierarchical institutions.
 The Indian Penal Code,1860 (45 of 1860), s. 375
 The Indian Penal Code,1860 (45 of 1860), Exception to s. 375
 (2022) SCC Online Del 1404
 (2018) SCC OnLine Guj 732
 (2022) SCC Online Del 1404
 (2000) 4 SCC 75
  10 SCC 800, AIR 2017 SC 4904
 (2017) 10 SCC 1, AIR 2017 SC 4161
 SCC Online Gujarat 732,  62.
 (2009) 14 SCR 989, (2009) 9 SCC 1