Author: Tems Das, National Law University Tripura
To the point
Marital rape refers to rape committed when the perpetrator is the victim’s spouse. The definition of rape remains the same, i.e. sexual intercourse or sexual penetration when there is lack of consent. Therefore, an essential ingredient to prove the crime of rape is to prove the lack of consent. This burden to prove the lack of consent often rests on the victim. In some instances, as in the case of minors, it is presumed that consent does not exist as they are presumed by law to be incapable of consenting to such sexual acts. On the other hand, there are also instances when consent is presumed to exist. Often, this presumption exists when the victim and the perpetrator are married. In such instances, the idea of marital rape becomes antithetical.
Abstract
Historically, marital rape has not been recognized as a criminal act; only recently has marital rape become illegal in all 50 states. Marital rape is a serious societal issue that is experienced by 10% to 14% of all married women and 40% to 50% of battered women. Marriages in which marital rape occurs have significantly higher rates of non- sexual violence and marital dissatisfaction. as well as lower ratings of marital quality. Victims who resist marital rape often employ verbal means of resistance. However, most of marital rape victims are either unable or afraid to resist sexual aggression by their husbands. The literature on marital rape is characterized by considerable methodological problems, and further research is needed to gain a better understanding of this problem.
Use of legal Jargon
Marriage is defined as the legal union of a couple as spouses, whereas on the other hand, Rape is defined as a sexual assault usually involving sexual intercourse or other forms of penetration that has taken place against a person’s will- while the former represents the sanctity of consensual relationship the latter is a brutal contradiction and in the patriarchal society of India, the concept of marital rape is never a consideration for the society as it is considered to disrupt the sacrosanct of a pious institution like marriage. While Section 375 of the Indian Penal Code gives a definition of rape under it, the same provides an exception under it stating that rape committed against his own wife. unless she is of 15 years or above, shall not be considered as rape. Marital rape refers to intercourse by the husband with his wife without her consent, by using threat of force, or physical violence. It is a non-consensual violent act violent by a husband against the wife where she is physically and sexually abused. The concept of Marital Rape not only does not hold any position as a criminal offence but also is considered as a myth and is beyond the consideration of the Indian society, which has been trying hard to keep intact its traditions and cultures.
The Proof
Approximately 10-14% of married women are raped by their husbands in the United States. Approximately one third of women report having `unwanted sex’ wit their partner. Historically, most rape statutes read hat rape was forced sexual intercourse with a woman not your wife, thus granting husbands a license to rape. On July 5, 1993, marital rape became a crime ir all 50 states, under at least one section of the sexual offense codes. In 20 states, the District of Columbia and on federal lands there are no exemptions from ape prosecution granted to husbands. However, in 30 states, there are still some exemptions given to husbands from rape prosecution. In most of these 30 states, a husband is exempt when he does not have to use force because his wife is most vulnerable (e.g., she is mentally or physically impaired, unconscious asleep, etc.) and is unable to consent. Women who are raped by their husbands are likely to be raped many times-often 20 or more times. They experience no only vaginal rape, but also oral and anal rape Researchers generally categorize marital rape into three types; force-only rape, battering rape and sadistic.
Case Laws
1. Independent thought v. Union of India (2017) In 2013, a child rights organization, Independent Thought, filed a writ petition in public interest before the Supreme Court. This petition challenged the constitutionality of Exception 2 to Section 375 of the IPC which decriminalised sexual Intercouse by a husband with his wife between the ages of 15 and 18 years. The Petitioners alleged this provision violated the rights of a married girl child between the ages of 15-18 years, since in all other
instances under the IPC the age of consent for sexual intercourse was 18 years. The petition sought clarification and harmonization of Exception 2 with existing laws on child marriage and children’s rights.
2. Nimesh bhai Bharat bhai Desai v. State of Gujarat (2018)
Nimesh bhai Bharat bhai Desai v. State of Gujarat is an important case that brings attention to the issue of consent and sexual autonomy within marriage under Indian criminal law. In this case, the wife alleged that her husband forced her to engage in sexual acts without her consent and sought legal action against him. The Gujarat High Court, however, refused to treat the act as rape, relying on the marital rape exception under Section 375 of the Indian Penal Code as it then stood. The Court observed that while the allegations raised serious moral and social concerns, it was bound to apply the law as enacted by the legislature and could not criminalize marital rape through judicial interpretation. This judgment exposed the limitations of existing legal provisions in addressing sexual violence within marriage and underscored the urgent need for legislative reform to align criminal law with constitutional values of dignity, bodily autonomy, and consent
3. RIT Foundation v. Union of India (2022)
questioned the constitutional validity of the marital rape exception under Section 375 of the Indian Penal Code. The petitioners argued that exempting husbands from prosecution for rape violates a married woman’s fundamental rights to equality, dignity, bodily autonomy, and personal liberty under Articles 14, 15, and 21 of the Constitution. The case was heard by the Delhi High Court, which delivered a split verdict—one judge held that the marital rape exception is unconstitutional as marriage cannot be a license to violate consent, while the other judge upheld the provision, stating that criminalizing marital rape could have serious social and legal consequences and that such reform should be left to the legislature. Because of the divided opinion, the matter was referred to the Supreme Court. The case is significant as it brought the debate on marital rape into the constitutional framework, emphasizing that consent does not disappear after marriage and highlighting the urgent need to reconcile criminal law with modern constitutional values
Conclusion
The debate of marital rape is crucial in establishing substantive equality for married women who are otherwise relegated in public and legal discourse to the confines of their home. It is crucial to recognise that this is a major lacuna in criminal law at present defeating the constitutional provisions that grant women equality and autonomy. As we have continually illustrated, there have been stiff political, legal and cultural arguments against criminalisation. We have carefully analysed the validity of these arguments which are coated with notions of the family, marriage and the role of women in society. We have established how all the arguments against criminalisation do not have any legal standing. We have argued that the exemption clause in §375 of the IPC as it stands today, is unconstitutional. This is because it fails the equality test as given in Article 14. In addition to this, we have depicted how there are
not any effective alternatives in law, and further that our focus should not be on alternatives but rather on criminalising it. We also brought out how our culture not being accepting towards marital rape is not a reason to not criminalise it. In light of all of this, we propose a model to criminalise marital rape. First, we propose that the exception clause be deleted. Second, we propose that it be specifically highlighted that the relationship of husband and wife between the accused and the woman will not be a defence. Third, we propose that the sentencing policy be the same. Fourth, we propose for certain amendments in the Evidence Act to ensure that it takes into account the complexities of prosecution in cases of marital rape.
FAQS
1. What is marital rape?
Marital rape is defined as unwanted sexual intercourse practiced between wedded spouses. It is when a spouse forces the other into sexual activities against their will.
2. What is the legal position of marital rape in India?
In India, marital rape is not criminalized because of an exemption in the Indian Penal Code (IPC) Section 375, which states sexual intercourse by a man with his wife is not rape if she is above 18 years of age.
3. Why is marital rape so controversial in India?
The controversy is grounded in the cultural beliefs within marriage, gender roles, and what constitutes consent. Most see marriage as having a tacit understanding concerning sexual activities, thus marrying a woman is stigmatized and considered not to offer consent for sexual acts. Therefore, marital rape may not be criminalized easily.
4. What are the arguments for criminalizing marital rape?
The arguments of proponents for criminalizing marital rape are that the women’s rights are protected, the body is an autonomous unit, and that all acts of sexual intercourse require consent even if married.
