Author- Maghavatpriya HG, a Student at SASTRA Deemed to be University
Abstract
Marital rape can be defined as sexual intercourse against the consent of one partner in marriage and it has prompted many moral questions about the domination of a spouse over the other. It remains an unlawful interference with the individual autonomy of the other spouse as well as an infringement of the constitutional right that ensures people own their own bodies. Though it is accepted and recognised as a human rights violation all across the world, it still stands excluded from the criminal jurisprudence of India. It is because the society as well as the law considers marriage as an unquestionable bond. With the new criminal laws in force in India, marital rape in cases of a minor wife is recognised as an offence but in cases concerning adult spouses, the law still guards the offenders. The present article aims at providing a discussion on the legal landscape with regard to the matter of marital rape in India along with the legal decisions given in the said matter. This article also analyses the other countries which have made marital rape an offence while comparing them with India’s stance. It evaluates the sociocultural factors which are responsible for the non-recognition of marital rape as an offence and the legal and social remedy for the same is also included in the paper.
Historical Context and Legal Framework
When sexual intercourse is non-consensual and forced by a partner within marriage it amounts to marital rape. Looking back to India’s patriarchal social structure, marital rape has always been considered pointless because a woman’s apparent submission during marriage presumed to amount to consent. This obsolete idea objectifies human beings especially within the institution of marriage. The lack of criminalization of marital rape in India despite activism and campaigns by the activists, legal scholars, and survivors to criminalize marital rape under the Indian Penal Code (IPC), 1860 is not paid heed to on grounds of sociocultural realities. Lack of recognition of marital rape as a legal crime under the Indian law has been a topic of discussion about women rights, personal liberty and the legal changes needed.
The Indian Penal Code of 1860 governed the matters regarding sexual offences in the Indian legal framework. Section 375 of the IPC defines rape a sexual intercourse without consent of the woman but it has a stark exception. According Exception 2 of Section 375, sexual intercourse by a man with his wife who is not less than 15 years of age, it does not amount to rape. This legal provision makes a gap since it implies that no husband can be charged with rape for forcing his wife to have sex, as long as the wife is over 15 years. Reflecting on this exception, marital rape has been a long debated issue because it erases the notion of consent in marriage institution. While the law defines all the other types of violations of the sexual integrity as an offence, marriage is perceived as a legal status where a husband has access to sexual intercourse with his wife without her consent. This legal gap has been a major challenge to the fight against marital rape since women in such relationships always find it hard to seek justice.
Recently, the new criminal laws which are in force also do not provide any measures regarding marital rape. According to Exception 2 of Section 63 of the Bharatiya Nyaya Sanhita of 2023, sexual intercourse by a man with his wife is not rape if the wife is not under 18 years of age. Thus, the standing regarding marital rape has not changed but the protection now has been extended upto the age of 18 years instead of 15 years. While this change is limited only to minors it still marks a shift away from the absolute immunity that marital rape has traditionally enjoyed. It reminds the state of the need to protect vulnerable people within marriage but fails to address the issue of marital rape among adults.
The Debate around Marital Rape
Generally, the people of Indian society have been very conservative towards marriage, family and sexuality, so marital rape is considered as a private matter or not a legal concern at all. This fact has been supported by some specific culture through practices which follow and respect marriage and the authority of the husband. But the activists and legal scholars have time and again claimed that absence of marital rape as an offence under the IPC is an infringement of the constitutional rights of women which include right to equality (Article 14), right to life and personal liberty and the right to life with dignity (Article 21).
Several NGOs, including the National Commission for Women (NCW) and other women’s rights organisations and activists have been demanding criminalising of marital rape and requested the government to amend the IPC. Though it was not done, it was hoped that the BNS of 2023 would set its stand by criminalising marital rape yet it was not criminalised even in the newly effective criminal laws.
Judicial Perspective
Marital rape has been an issue of debate in India and the Indian courts have partially given their verdict against the legal exception. The Judiciary in some instances has attempted to get the response of the government on the issue of marital rape. The Judiciary has pointed out that the exception provided under Section 375 of the IPC was against the women’s rights but left it to the lawmakers as any change in this would require a formal legal amendment. The Supreme Court has refused to adjudicate in the matter suggesting that the issue requires societal and legislative discussion, suggesting that it should be up to Parliament to decide whether marital rape should be criminalised or not.
Certain judgments have elaborated how this judicial bench is gradually shifting in its response to marital rape. Indian Judiciary has played a pivotal role in challenging the marital rape exemption, some of the judgements include:
Joseph Shine v. Union of India (2018)
While decriminalizing adultery, the Supreme Court commented on women’s equality and her body choice, which has an indication questioning the rationale behind marital rape exemption.
Justice K.S. Puttaswamy v. Union of India (2017)
The Apex Court held that right to privacy is protected under the ambit of right to life as enshrined under Article 21 of the Constitution. This judgment focused on the fact that the bodily autonomy of a woman and her dignity created a constitutional footing for challenging the exemption of marital rape. As pointed out earlier, unmarried as well as married individuals have the right to be able to make decisions relating to their bodies.
Independent Thought v. Union of India (2017)
This judgment is landmark regarding matters of child rights and marital rape. The Supreme Court declared that marital rape of a minor wife between 15 and 18 years amounts to rape, despite the exception under Section 375 of IPC. This ruling proved to be useful in establishing the inconsistency prevailing in Indian laws and that marriage cannot be considered as reasonable classification which shields marital rape while at the same time protecting the minors.
RIT Foundation v. Union of India (2022)
The Delhi High Court has given its judgment on the marital rape exemption concentrating on its constitutional validity. Justice Shakdher held that the exemption had been unconstitutional as it infringed Articles 14, 15 and 21. However, Justice Shankar had upheld the exemption while referring the sociocultural issues involved and the requirement of the legislature to deal with such issues. The case is now pending before the Supreme Court, so the debate still continues.
The Social and Cultural Landscape
The cultural institution of marriage in India poses a problem regarding the concept of consent because of the traditionally observed stereotypical gender roles. The society is patriarchal and the woman is expected to surrender herself to her husband’s demands, thus it can be said that marital rape is expected to be the norm. Additionally the culture of intimacy taboo that surrounds marriages and the shame that is attached to reporting marital rape also denies women their voice. In actual sense, due to ignorance or due to stigmatization, many women, especially those from the rural areas may never consider whatever was done to them as rape. Additionally, the economic reliance, the pressure or fear of divorce or abandonment does not allow women to complain such abuse. Other factors like cultural beliefs of marital loyalty and family honour make the whole issue more complicated.
International Perspectives
Globally the understanding of marital rape has evolved in the recent past. Most western countries have made marital rape a criminal offence as they accept that marriage does not equal consent. Many developed countries such as the United States of America, the United Kingdom and Canada have criminalized marital rape. The United Nations has also urged countries to change laws that allow marital rape, thereby asserting that every kind of sexual violence should be unlawful, regardless of the victim’s marital status. India’s failure to not have criminalised marital rape is in contrast to the other nations’ global commitment towards gender equality and human rights.
Need for Reform
In India, the exemption of marital rape is more and more discussed as a violation of women’s rights. As of now, legal experts, human right activists and a significant part of the population have urged the lawmakers to include marital rape as an offence on the country’s laws. Some of them argue that this is a crucial step in progressing towards the elimination of discrimination of women, towards women’s rights, as well as in addressing violence towards women.
In 2019, the Indian Law Commission released a report recommending the reconsideration of the age of consent and marital rape laws. However, there has been little desire to change the law since the government said that criminalising marital rape undermines the familial structure and marriage. This argument has been criticised by many because they argue that by not making marital rape a criminal offence then the law becomes a means of encouraging abuse and promoting gender inequality.
Conclusion
Marital rape in India is still a matter of debate that raises the problem of discrepancy with culture, law, and Constitution. Although, in the recently changed criminal laws, the Bharatiya Nyaya Sanhita of 2023 has also included the protection to the minors but the issue of forced sex within the marriage for adult partners remains unaddressed. This gap violates women’s constitutional rights and freedoms of equality, dignity and independence. Benchmarking with the same of other countries shows that India is way behind in terms of being sensitive to marital rape as a violation of human rights. The failure to criminalise marital rape as an offence is because of the societal traditions and culture and the misunderstanding due to lack of awareness.
However, the judgments and activation by the judiciary and others legal professionals, non-governmental organization, and women’s right activists reveal an increasing concern for reform. Marital rape is both not only about legislation enactment; it is more so about changing the people’s perception towards consent and gender parity. The reforms are the first step towards gender equality, and justice in marriage. Otherwise, India may continue the generation of gender-based violence and privileges of men over women. The state should now make amends to criminalize marital rape as it is the sole authority vested with power to prevent this crime from happening.
FAQs
- Is marital rape considered to be a crime in India?
Now, marital rape in case of adult spouses is not recognised as a crime in Indian law. However, if the wife is under 18 years of age it is considered to be rape.
- Why is marital rape not criminalized in India?
The non-recognition of marital rape is attributed to societal and cultural norms that view marriage as a sacred and private institution, along with concerns about potential misuse of laws and the preservation of familial structure.
- How have other countries dealt with marital rape?
Countries like the United States, the United Kingdom, and Canada have criminalized marital rape, asserting that marriage does not imply consent for sexual activity.
- What steps are to be addressed regarding marital rape in India?
Legal reforms criminalizing marital rape, widespread awareness campaigns, addressing societal attitudes toward gender roles, and ensuring accessible support systems for survivors are critical steps toward addressing the issue.
Sources
- Bharatiya Nyaya Sanhita, 2023.
- Indian Penal Code, 1860.
- https://www.legalserviceindia.com/legal/article-3241-marital-rape-in-india-a-sleazy-truth-.html
- https://nujslawreview.org/wp-content/uploads/2018/01/11-1-Raveena-Rao-Kallakuru-Pradyumna-Soni.pdf
- https://www.drishtiias.com/daily-updates/daily-news-analysis/marital-rape-in-india-1
