Debate over Marital Rape


    In Context 

    • The Delhi High Court is hearing a challenge to the constitutional validity of the ‘marital rape immunity provided for in the Indian Penal Code

    More in News

    • The case has put the spotlight on crucial issues concerning consent, the extent of state control on female sexual autonomy, and correcting historical prejudices in law.

    What are Legal provisions linked to Marital Rape?

    In India, marital rape is not defined in any statute or law.

    • Section 375 of the Indian Penal Code (IPC) defines rape as a criminal offence and states that a man commits rape if he has sexual intercourse with a woman without her consent or if she is a minor.
      • However, according to Exception 2 to Section 375 “sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape
    • However, in a landmark judgment in 2018, the Supreme Court of India held that it will be considered rape if a man has sexual intercourse with his wife if she is aged between 15 and 18
      • This exemption essentially allows a marital right to a “husband”, who can with legal sanction exercise his right to consensual or non-consensual sex with his “wife”. 
        • This exemption is being challenged as unconstitutional as it undermines the consent of a woman based on her marital status
    • The only recourse against non-consensual sex for married women are civil provisions under the Protection of Women from Domestic Violence Act or Section 498-A of the IPC on cruelty against a wife by the husband or a husband’s relatives.

    Why is this provision in place?

    • Marital rape immunity is known to several post-colonial common law countries. It is premised on broadly two assumptions:
      • Consent in perpetuity: This is the assumption that on marriage a woman gives consent held by her husband in perpetuity which she cannot retract.
        •  This concept in colonial-era law has roots in the antiquated idea that a woman is the property of her man.
    • The expectation of sex: This is the assumption that a woman is duty-bound or is obligated to fulfil sexual responsibilities in a marriage since the aim of marriage is procreation. 
      • Since the husband has a reasonable expectation of sex in a marriage, the provision implies that a woman cannot deny it.

    Arguments for criminalizing Marital Rape

    • A marriage should not be viewed as a license for a husband to forcibly rape his wife with impunity.
    •  The marital exception to the IPC’s definition of rape was drafted based on Victorian patriarchal norms that did not recognize men and women as equals.
      • It did not allow married women to own property, and merged the identities of husband and wife under the “Doctrine of Coverture.”
      •  it creates an unreasonable classification between married and unmarried women and, by corollary, takes away the right of a married woman to give consent to sexual activity.
    • Article 14: Indian women deserve to be treated equally under article 14 and an individual’s human rights do not deserve to be ignored by anyone, including by their spouse.
      • Further, a married woman has the same right to control her own body as does an unmarried woman.
    • Bodily Integrity is intrinsic to Article 21: A woman is entitled to refuse sexual relations with her husband as the right to bodily integrity and privacy is an intrinsic part of Article 21 of the Constitution. 
      • Supreme Court has included sanctity of women, and freedom to make choices related to sexual activity under the ambit of Article 21
        • In the State of Karnataka v. Krishnappa, the Supreme Court held that sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.
        • In the Suchita Srivastava v. Chandigarh Administration, the Supreme Court equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.
        •  Supreme Court  2017 Aadhaar ruling that cemented the right to privacy
        •  the 2017 ruling that struck down the practice of instant triple talaq as unconstitutional and held that laws cannot be “manifestly arbitrary”
    • Rape not ground for Divorce: As marital rape is not a ground for a divorce in any personal laws and even the Special Marriage Act, 1954, It cannot be used as a ground for divorce and cruelty against the husband Thus, the women remain helpless and keep suffering in silence.
    • Rape is rape, irrespective of the identity of the perpetrator, and the age of the survivor.
      • A woman who is raped by a stranger life with a memory of a horrible attack; a woman who is raped by her husband lives with her rapist throughout her life.
    • Criminalizing marital rape: It will ensure that women remain safer from abusive spouses and they can receive the help needed to recover from marital rape and can save themselves from domestic violence and sexual abuse  
      • Much of the developed world has criminalized it. The even United Kingdom, whose common law was followed by India, made marital rape a criminal offence in 1991.
    • The JS Verma committee set up in the Nirbhaya gang-rape case and the UN Committee on Elimination of Discrimination Against Women (CEDAW) in 2013 had recommended that the Indian government should criminalize marital rape.

    Arguments Against criminalizing Marital Rape

    •  Destabilize marriage as an institution: It may create absolutely anarchy in families destabilizing the institution of marriage and thereby destroying the family platform which upholds family values and helps in sustaining the country.
      • Indian society believes that marriage is a sacrament
    • Misuse of law: It may become an easy tool for harassing the husbands by misusing the law similar to the growing misuse of section 498A (harassment caused to a married woman by her husband and in-laws) of the IPC.
    • Awareness is more important: Merely criminalizing marital rape may not stop it as “moral and social awareness” plays a vital role in stopping such an act.
    • Diversity in Cultures of the states: India has its unique problems due to various factors like literacy, lack of financial empowerment of the majority of females, the mindset of the society, vast diversity, poverty, etc. and these should be considered carefully before criminalizing marital rape.
      • Also, criminal law is in the Concurrent List and implemented by the states and there is a vast diversity in the cultures of these states
    • Law Commission has not recommended: Indian Law Commission and the Parliamentary Standing Committee on Home Affairs after thoroughly examining the matter did not recommend the criminalization of marital rape.
    • No violation of Article 21: Non-criminalisation of marital rape is “not a violation” of Article 21 of the Constitution as a wife is not compelled to live with a sexually abusive husband under personal law.
    • Implementation issues: Criminalizing marital rape will create serious implementational issues like
      • If all sexual acts by a man with his wife will qualify to be marital rape, then the judgment as to whether it is a marital rape or not will singularly rest with the wife who cannot always be trusted.
      • What evidences the courts will rely upon in such circumstances, as there can be no lasting evidence in case of sexual acts between a man and his wife

    What is the government’s stand?

    • In an affidavit, the Centre defended marital rape immunity to protecting the institution of marriage. 
    • The Delhi government too has defended the law on the ground that married women have other legal recourses.
      • Women who have been subjected to rape by their husbands can file for divorce or a case of domestic violence.
    • In the past, as in the cases challenging homosexuality under Section 377, governments have preferred continuity and showed reluctance in doing away with such provisions.

    Way Forward

    • It is high time that the legislature should take cognisance of this legal infirmity and bring marital rape within the purview of rape laws by eliminating Section 375 (Exception) of IPC. By removing this law, women will be safer from abusive spouses.
    • They can receive the help needed to recover from marital rape and can save themselves from domestic violence and sexual abuse.
      •  Indian women deserve to be treated equally, and an individual’s human rights do not deserve to be ignored by anyone, including by their spouse.
    • Legal prohibition on marital rape must be accompanied by changes in the attitude of the prosecutors, police officers and those in society generally.
    • The need of the hour is that marriage and divorce must come under secular law and there cannot be any difficulty in having a common code of law for all communities at least for marriage and divorce.

    About Marital rape 

    • Marital rape (or spousal rape) is an act in which one of the spouses indulges in sexual intercourse without the consent of the other.
    • Rape in India continues with the patriarchal outlook of considering women to be the property of men postmarriage, with no autonomy or agency over their bodies. 
      • They deny married women equal protection of the laws guaranteed by the Indian constitution.
    • Today, more than 100 countries have criminalized marital rape but, unfortunately, India is one of the only 36 countries where marital rape is still not criminalized

    International Scenario 

    • The marital rape exception was overturned by the House of Lords in 1991(Uk). Canada (1983), South Africa (1993), Australia (1981 onwards) enacted laws that criminalise marital rape.