Article 375 of Indian Penal Code, 1860 (Herein after will be referred as “IPC”) defines “Rape”. The definition of rape under this section includes any type of sexual intercourse (Anal, oral, vaginal) with a woman, by a man against her will, without her consent, with consent obtained by fraud or misrepresentation or coercion, when she not in a condition to give consent, when she is a minor i.e., below 18 years of age, or when she is of unsound mind or intoxicated. However, Exception 2 to Section 375 of IPC protects a man from any prosecution if he is indulging in non-consensual sexual intercourse with his wife, condition being the age of wife should not be below 15 years. (Now it is 18 years).
India is one of the Thirty-six (36) countries around the world where “Marital Rape” or non-consensual sexual intercourse by a husband with his wife is not rape. Poland in 1932 became the first country that criminalised forced sexual intercourse by a husband with his wife. Among the commonwealth countries Australia was the first country to recognise marital rape as a crime in 1976. However, since 1980’s various other common law countries have penalised Marital Rape. As per The UN Women's 2011 report Fifty-two (52) countries had taken away the immunity of husbands of not being prosecuted, in case they are involving in forced sex with their wives.
In India, where marriage is being seen as a sacrosanct union between two people, it is very hard for the society to accept the concept of marital rape. In the Indian society it is assumed that when a woman marries a man, she gives her consent for the life time. Behind the veil of this sacrality, women have been abused in our society since time memorial.
However, from past few years various petitions have been filed in Supreme Court and High Courts challenging the constitutionality of Exception 2 to Section 375 of IPC. The present article discusses the reasons that supports the idea of criminalization of Marital Rape in India.
India is a patriarchal society and the biasness against women is being continued since time immemorial. This discrimination against women is deep rooted in our society which is clearly evident through the customs, rituals and ancient texts of India. As per Manusmiriti a wife who refuses for sexual intercourse with her husband is not a good wife. In India sex between husband and wife has always been regarded as their private matter and not something that is to be discussed outside the bedroom. Even in Mughal era this thought about institution of marriage was prevalent and the situation of the women worsen in the society.
Further, The Britishers who ruled India during 19th century did not consider the idea of man raping his own wife. According to the British rules of Victorian era, husband and wife are not separate entity but the identity of a woman is merged into the identity of her husband (Doctrine of Unity). Therefore, it is not possible for a man to rape himself. The IPC was drafted in 1860, while India was a British colony by an English man (Lord Macaulay) and therefore IPC have traces of Victorian norms.
When IPC was drafted married women were treated as chattel or property of their husband and did not have many rights that a person with separate legal entity had. However, this oppressive rule of British era continued even after India got Independence. The privacy of marriage was considered superior to the protection of women against abuse. The focal point of the law of rape is ‘consent’ and as stated above, in our society that consent is been presumed on the part of women for a life time, as soon as she gets married.
In 42nd Law Commission Report for the first time the idea of Marital Rape was endorsed however it took into its ambit only those cases in which husband and wife are not living together either by mutual consent or due to the decree of Judicial Separation. This suggestion has been incorporated in the IPC. Again in 172nd report the question on validity of Exception 2 was raised by Law Commission, but parliament refused to accept the idea of criminalisation of forced sexual intercourse by a husband with his wife citing the reason of privacy of matrimonial relation.
Further, in 2012 when Nirbhaya Rape case shook the whole country a committee was formed under the chairmanship of Justice J.S. Verma to suggest amendments to the Criminal law so that it can effectively deal with the heinous crimes that are committed against women. Among various suggestions by the committee, one was to strike off Exception 2 to Section 375, as in 21st century women are no longer regarded the chattel of husband, they have their own individual identity and the Exception 2 is against the notion of Human Rights. But unfortunately, this recommendation was not accepted by the Parliament Standing Committee on Home Affairs in its 167th report in which it declined to accept the idea of criminalising marital rape on the basis that this will affect the whole family system and in turn will create more injustice.
In 2015 DMK MP Kanimozhi endorsed the idea of criminalisation of Marital Rape in Rajya Sabha and also a private member bill was introduced Congress leader Avinash Pandey to remove the Exception 2 and criminalise Marital Rape in India. The bill could not gain much support.
Further In 2017 in the case of Independent Thought v. Union of India the Supreme Court criminalized forceful sex by a man with his minor wife (under 18 years of age) holding Exception 2 arbitrary and in violation of Article 14 of constitution of India as it discriminates between married and unmarried female child without any reasonable nexus with any understandable objective sought to be achieved. Court also held this classification against Article 15 and Article 21 of constitution of India. However, court clearly refrained from making any comment on forceful sexual intercourse by a man with his adult wife.
Finally in 2018 another private bill was tabled in Rajya Sabha by Congress political leader Dr. Shashi Tharoor demanding the removal of Exception 2 to Section 375 IPC. Even after so much of progress India still is a patriarchal society and the notion of rape of a woman by her husband is strange and unacceptable to the society.
Violation of article 14
Exception 2 to Article 375 is violative of Article 14. The exception forms two classes of women on the basis of their marital status and then discriminates against the married women. The objective of Section 375 of IPC is to protect women from forceful sexual intercourse by a man. But Exception 2 arbitrarily differentiates between married and unmarried women, grants immunity to a man from prosecution even if he is forcing a woman to have sexual intercourse against her will just because she is his wife.
As per State of West Bengal v. Anwar Ali Sarkar and Budhan Choudhary v. State of Bihar, the classification created under Article 14 must be reasonable and not arbitrary that is it should have a reasonable nexus with the objective of the act. However, Exception 2 to Section 375 arbitrarily creates a distinction between married and unmarried women and there is no reasonable nexus between this classification and the objective of Section 375 that is to protect women from forced sex. It does not matter a woman is married or unmarried the rape results in same mental and physical pain to a woman. Moreover, it is much more difficult for a married woman to protect herself from physical abuse and forceable sex as compared to an unmarried woman as she lives in the same house as perpetrator. Therefore, Exception 2 to Section 375 of IPC is violative of Article 14 of the Constitution of India.
Violation of Article 15(3)
Article 15 (3) of Constitution of India allows discrimination on the basis of sex for the benefit of women and children. In the case of Independent Thought v. Union of India, it was unequivocally mentioned by the court that under this article government can only enact a law if it is in benefit of women and if a law is disadvantageous to women in any way, it is violative of Article 15(3) of Constitution of India. Exception 2 to Section 375 of IPC is in no way benefitting the women instead it is against the well-being of married women and jeopardize their welfare.
Further, this exception by granting protection to married men against prosecution when they are indulging in forceful sex with their wives is instead advancing a favour on such married men to the prejudice of married women. Hence, Exception 2 to Section 375 of IPC is violative of Article 15(3) of the Constitution of India.
Violation of Article 21
Article 21 of constitution of India which guarantees ‘Life and Liberty’ to every individual has been interpreted by Supreme Court in various judgements beyond its literal meaning in a very progressive manner. It interpreted the Article to include right to health, privacy, dignity, safe living conditions, and safe environment etc.
Further, in the case of State of Karnataka v. Krishnappa, it was held by the Supreme Court “Sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.” Again, in Suchita Srivastava v. Chandigarh Administration, The Supreme court associated the right to decide things related to sexual and reproductive activity with right to ‘Personal Liberty’ under Article 21as well as right to privacy, dignity, and bodily integrity as included under the meaning of Article 21.
In the landmark Judgement of Justice K.S. Puttuswamy (Retd.) v. Union of India the Supreme Court categorically mentioned that right to privacy under Article 21 also incorporate “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.”
None of the above stated Judgements mentioned that the right to privacy of an individual is abolished as soon as she gets married to a man. Also, the violation of a woman’s body by a man whenever he wants is against her right to live with dignity which is again a part of right to life under Article 21 of Constitution of India.
Again, under Article 21 of Constitution of India, right to health is included. The exclusion of marital rape from the definition of rape is violative of right to health of a married women as when a man indulges in non-consensual sexual intercourse with a woman, it not only affects the physical health of that woman but it also affects her mental health. Therefore, Exception 2 to Article 375 is in violation of Article 21.
Marital Rape in other Countries
Bangladesh- rape law in Bangladesh is very much similar to India and criminal law of Bangladesh does not penalize marital rape if the age of the wife is above thirteen years.
Bhutan- As per Section 199 of the Penal Code of Bhutan marital rape is a crime.
Singapore- The Criminal Law Reform Act 2019 abolished the immunity given to married men and transformed marital rape into a crime.
England- In the case of R v. R (1991) the house of lords granted the status of crime to marital rape.
USA- In USA Nebraska became the first state in 1975 to penalise marital rape. And by 1993 each and every state of US outlawed marital rape.
As most of the countries around the world have already outlawed marital rape/ spousal rape, India should also exhibit a progressive approach and criminalize Marital rape. It should be understood by the Indian society as well as Parliament and Judiciary that they need to overcome their archaic biases and recognise the agony of a married woman, who is continuously subjected to sexual violence by her husband is in no way different from an unmarried woman who is subjected to same kind of treatment. Rape should be punished in the same manner and classifying victim of rapes on the basis of their matrimonial status is against their right to equality, life and liberty.
Indian Penal Code § 375, No. 45 of 1860, India Code.
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Yadav, A. (2019). Understanding Marital Rape in India: A Discourse on Textual and Constitutional Perspective. Dr. Ram Manohar Lohiya National Law University Journal,11, 81-93. https://www.scconline.com/blog/
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Independent Thought v. Union of India, (2017) 10 SCC 800.
State of West Bengal v. Anwar Ali Sarkar, AIR (1952) SC 75.
Budhan v. State of Bihar, AIR (1955) SC 191.
The State of Karnataka v. Krishnappa, (2000) 4 SCC 75.
Suchita Srivastava v. Chandigarh Administration, (2008) 14 SCR 989.
Justice K.S. Puttuswamy (Retd.) v. Union of India, (2017) AIR 2017 SC 4161
R. v. R.,  4 All ER 481 (484).
Written by – Indira Yadav