Marital rape is also known as spousal rape. The term ‘marital rape’ doesn’t suggest any gender but it is often against married woman. Marital rape can be defined as a husband having non-consensual sexual relationship with his wife. In other words, sexual relationship by force and without the consent of the wife in a wedlock is marital rape. It can be considered as a form of sexual violence.
Many countries in the world have criminalised marital rape. However, in India, marital rape is not considered to be an offence. India is amongst the thirty-six countries which did not criminalise marital rape.
Section 375 of the IPC provides definition of rape. The definition highlights the importance of consent of the woman but it is tarnished by making an exception that the sexual intercourse between the husband and the wife who is above the age of fifteen years is not considered to be rape. Thus, the IPC makes marital rape as an exception.
Section 375 of the IPC also explains the term ‘consent’ as the willingness of the women to a specific sexual act. The willingness can be shown in any form. However, mere non-resistance by the woman to the act of penetration cannot be regarded as consent.
Section 376B of the IPC criminalised the sexual intercourse by husband with his wife, without her consent, who is living separately by a decree or otherwise.
The Indian society has completely misunderstood the concept of consent. It is understood that marriage itself gives the right to the husband to have sexual intercourse with his own wife. It is understood that the marriage itself is presumed to be consent for having sexual intercourse.
After looking into section 375 and section 376B of the IPC, it can be understood that even the lawmakers were of the presumption that marriage itself is consent for having sexual intercourse.
This article talks about the constitutionality of marital rape, the view of judiciary on marital rape, the recommendations of Justice Verma Committee, Pam Rajput Committee regarding marital rape and a few legal remedies available for women against marital rape.
Constitutionality of Marital Rape
The exception given for marital rape under section 375 of the IPC violates fundamental rights of the married women envisaged under article 14 and article 21 of the Constitution of India.
Article 14 of the Constitution of India envisages right to equality before law and equal protection of laws to all the persons. However, article 14 allows reasonable classification based on intelligible differentia. There must be nexus between the object to be achieved and the classification that is made. The Supreme Court also held the same in the matter of State of West Bengal v. Anwar Ali Sarkar.
The plain reading of section 375 of the IPC shows that the object of the provision to criminalise the sexual acts committed by a man without the free consent of the woman. The classification is based on the marital status of the woman. Thus, there is no rational relation between the object that sought to be achieved and the classification that is made.
Article 21 of the Constitution of India envisages right to life and liberty. The right to life as envisaged under this article is not mere animal existence but to live with dignity and privacy.
The exception provided under section 375 of the IPC is violative of article 21 of the Constitution of India because sexual activity without the consent of the woman violates her right to live with human dignity.
In K.S. Puttaswamy v. Union of India, the Supreme Court ruled that the right to privacy includes “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.” This decision of Supreme Court applies to all the women irrespective of their marital status. Thus, the exception under section 375 of the IPC violates the right to privacy of the woman above the age of 15 years. Their right to make decision in the matter of sexual relation is violated.
Judiciary on Marital Rape
Martial rape as an exception under section 375 of the IPC had been the bone of contention since its inception.
In Queen Empress v. Hari Mohan Maiti (1881), a 11-year-old victim bride named Phulmoni Devi died because of excessive bleeding when marriage was being consummated between the victim and her 30-year-old husband.
The then law on rape allows a husband to have sexual intercourse with her own wife who has attained 10 years of age. Thus, even though the autopsy report clearly mentioned that the death is caused due to rupture of vagina, the accused was acquitted for the charge of rape. However, the court held that the man cannot have right to enjoyment without giving due regard to his wife’s health and safety.
Subsequent to this judgment, an amendment was made to the Age of Consent Act in 1891. It increased the girl’s age to give consent to the sexual acts from ten years to twelve years irrespective of marital status of the girl. Later, an amendment in the year 1925 increased the age to thirteen years. Further, an amendment to the IPC in the year 2013 increased the age to eighteen years.
In Arnesh Kumar v. State of Bihar, the Supreme Court held that considering marital rape as an offence and criminalising the same would tarnish the social and family system amongst the other existing biased laws.
In Independent Thought v. Union of India, a PIL was filed by the Independent Thought, a registered society, working for child rights. Its contention before the Supreme Court was that whether sexual intercourse between the husband and his wife aged between 15-18 years is rape or not? Whether such sexual intercourse falls within the ambit of exception provided under section 375 of the IPC.
The Supreme Court held that the sexual intercourse between the husband and his wife aged between 15-18 years would amount to rape. It also held that sexual intercourse with a girl below the age of 18 years irrespective of her marital status amounts to rape and the exception made in the Section 375 of the IPC is unnecessary. The said exception makes a classification between a married girl and unmarried girl which is artificial.
However, this decision does not talk about marital rape of woman who is 18 years old and above.
In the year 2019, a PIL was filed before the Apex Court by Advocate Anuja Kapur seeking the court to direct Central Government to issue guidelines for registering First Information Reports (FIRs) complaining marital rapes. The PIL also sought directions to the Central Government to take appropriate steps to make marital rape as a ground for divorce.
It was contended by the petitioner that in order to protect the dignity, well-being of the women in marriage and in the public interest, the Supreme Court needs to give directions to the Central Government.
The Supreme Court, however, declined the examine the PIL and asked the petitioner to approach the High Court of Delhi where there are many matters pending related to the same issue.
In Nimesh Bhai Bharatbhai Desai v. State of Gujarat, the High Court of Gujarat held that marriage does not give any right to the husband over his wife’s body. The wife is not an object to have ownership. Even after the marriage, the wife holds her human rights and can either give or withhold consent to marital coitus at any point lawfully.
The High Court of Gujarat further observed that marital rape is prevalent in India and many suffered due to its non-criminalisation.
RIT Foundation v. Union of India is a PIL filed by the RIT Foundation and All India Democratic Women’s Association before the High Court of Delhi. The decision in this matter is still pending.
The PIL challenges the constitutionality of the exception provided for marital rape under section 375 of the IPC. The PIL also challenges Section 376B of the IPC which penalises the husband for having sexual intercourse with his wife who is living separation, under a decree or otherwise, without her consent. It was contended by the petitioners that such differential treatment is arbitrary and unconstitutional.
On the other hand, the respondent i.e., the Central Government contends that such a separate legislation for marital rape will be misused.
Bill in the Parliament
A private bill named “the Women’s Sexual Reproductive and Menstrual Rights Bill, 2018” was introduced by Sashi Tharoor, the Congress MP. The bill was introduced in Lok Sabha proposing to criminalise marital among many other rights. However, the bill did not gain any support in the Lok Sabha.
Justice Verma Committee
After Nirbhya incident, a three- member committee was constituted under the chairmanship of Justice J.S. Verma, the former Chief Justice of the Supreme Court, on 23 December 2012. It was constituted for making recommendations to amend criminal law in the area of rape and sexual assault against women. The committee submitted its report on 23 January 2013.
The committee stated that the offences of rape and sexual assault are not only crimes of passion but also an expression of power. It also stated that the IPC desires to criminalise sexual intercourse without consent but it makes an exception to marital rape. So, the committee recommended that exception provided for marital rape under section 375 should be removed. The committee stated that relationship between the accused and the victim is immaterial while inquiring about the consent of the victim for the sexual activity.
Pam Rajput Committee
Pam Rajput Committee was a 14- member high level committee under the chairmanship of Pam Rajput. It was constituted by the Ministry of Women and Child Development (MWCD) in the year 2012 to study the status of women since 1989 and to make policy recommendations. The committee submitted its report in the year 2015.
Among other recommendations, the committee recommended that the marital rape must be criminalised. It should be considered to be an offence irrespective of the age of the wife.
Rajya Sabha Parliamentary Committee Report
Despite the recommendations of the two committees, the legislature was reluctant to make a law when the bill was introduced in the Parliament by MWCD. Instead, it relied on the report of Rajya Sabha Parliamentary Committee. The committee in its 167th Parliamentary Standing Committee Report on Home Affairs on the Criminal Law (Amendment) Bill, 2012, stated that the women who were forced to have sexual intercourse by their husbands have other means to approach the court. there are also provisions for cruelty. Thus, legislating a new law for marital rape would only put the family system under stress.
United Nations on Marital Rape
After the response of the Indian Government on criminalising marital rape in negative in the year 2016, the then UNDP chief Helen Clark urged to criminalise marital rape. She also stated that it is a part of Sustainable Development Goals and every country has to make laws in the light of Sustainable Development Goals.
It was also recommended by the UN Committee on Elimination of Discrimination against Women to criminalise marital rape in India.
The United Nations Population Fund in its report named “Health and Social Consequences of Marital Violence: A Synthesis of Evidence from India” stated that around 75% of the married women in India were subjected to marital rape.
Legal Remedies Available
As of now, the legal remedies available to the married women who are the victims of marital rape are Section 498A which deals with cruelty and the Protection of Women from Domestic Violence Act, 2005 which includes sexual violence as one of the forms of Domestic Violence. However, the court has no power to make husband liable for raping his wife. In addition to this, a few married women victims come out and report marital rape.
Marriage is considered to be sacramental in India. However, it continues to be sacramental only when there is consent from both the parties to the marriage. It has to be understood that marriage itself cannot be presumed to be consent to sexual intercourse.
The Government has to take measures in criminalising marital rape by eliminating the exception provided under section 375 of the IPC.
Marital Rape: A Non-criminalized Crime in India by Sarthak Makkar, Harvard Human Rights Journal, https://harvardhrj.com/2019/01/marital-rape-a-non-criminalized-crime-in-india/
Only 36 Countries have Not Criminalised Marital Rape, India is One of Them by Anusha Agrawal, https://www.theleaflet.in/only-36-countries-have-not-criminalised-marital-rape-india-is-one-of-them/
Supreme Court turns down plea seeking directions on registration of marital rape cases, https://www.theleaflet.in/supreme-court-turns-down-plea-seeking-directions-on-registration-of-marital-rape-cases/
The current Legal Framework on Marital Rape in India, https://www.helplinelaw.com/family-law/CLFM/the-current-legal framework-on-marital-rape-in-india.html
Indian Men Can ‘Lawfully’ Rape Their Wives: When Will That Change? https://www.thequint.com/neon/gender/marital-rape-laws-in-india criminal-acts-against-women
Indian Penal Code, No. 45 of 1860
Constitution of India, 1950
State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75
K.S. Puttaswamy v. Union of India, AIR 2017 SC 4161
Queen Empress v. Hari Mohan Maiti, (1886) ILR 8 All 622
Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273
Independent Thought v. Union of India, WP (Civil) 382 of 2013
Nimesh Bhai Bharatbhai Desai v. State of Gujarat, 2018 SCC OnLine Guj 732
RIT Foundation v. Union of India, WP(Civil) 284 of 2015
BA LLB (HONS.),
INTERN BATCH: MAY, 2021.