Author: Ashok Kumar Ratan, Assam University
Abstract
Marital rape remains a contentious issue in India’s legal framework. The topic of Marital Rape in itself is considered to be taboo and is hardly talked about. Section 375 of the Indian Penal Code, Exception 2 excludes non-consensual sexual intercourse between a husband and his wife from being considered rape. This loophole contradicts constitutional rights, international human rights norms, and the fundamental principle of consent. Despite repeated calls for reform, the Indian government has hesitated to criminalize marital rape, often citing societal concerns.
Introduction
Imagine a scenario where a woman is forced into a sexual relationship against her will. If this happens outside marriage, it is a criminal offence. But if the perpetrator is her husband, Indian law does not recognize it as a crime. This legal inconsistency has sparked widespread debates about whether marriage should override a woman’s right to consent. While many nations have taken significant steps to criminalize marital rape, India still struggles with balancing legal reforms and societal traditions.
The Legal Status of Marital Rape in India
India’s Penal Code, drafted in 1860, exempts marital rape from criminal prosecution under Exception 2 to Section 375 of the Indian Penal Code (IPC). This clause states that sexual intercourse by a man with his wife provided she is not under 18 years old, cannot be classified as rape. While the age of consent for wives was raised from 15 to 18 in 2017 (post the Independent Thought v. Union of India WP (C) 382/2013 (verdict), the exception remains a glaring omission in recognizing marital rape as a crime.
Still, After the implementation of Bharatiya Nyaya Sanhita 2023 (BNS), Marital Rape is not considered an offence. Section 63 of BNS explains the definition and circumstances under which rape is considered to have occurred. In this, Exemption 2 said “Sexual intercut or sexual acts by a man with his claim wife, the wife not being beneath 18 years of age, isn’t rape. But in the recent judgement of Karnataka High Court, declared sexual intercourse with his wife without her consent as an offence.
Judicial Interventions: Progress and Paralysis
Recent judicial rulings have injected urgency into the debate:
Kerala High Court (2021): In XXX v. State of Kerala, the court termed marital rape a “human rights violation” and emphasized that marriage does not grant a license to “unleash a brutal beast.” Though not binding nationally, it set a moral precedent.
Delhi High Court Split Verdict (2022): A landmark split decision in RIT Foundation v. Union of India saw one judge advocating for striking down Exception 2 as unconstitutional, while another feared destabilizing marital institutions. The case was elevated to the Supreme Court.
Supreme Court’s Observations (2022): While ruling on the Exception 2 age limit, the SC underscored that marriage does not negate a woman’s right to sexual autonomy and dignity. Though not directly addressing marital rape, the remarks signalled judicial empathy.
X v. State of Kerala (2023): In this landmark judgment, The case X v. State of Kerala (2023) was heard by the Kerala High Court, where a woman (X) sought divorce from her husband on the grounds of cruelty, including marital rape. The primary issue was whether non-consensual sexual intercourse within marriage (marital rape) could be considered cruelty under Indian marriage laws, even though it is not a criminal offence in India.
Court’s Observations and Judgment
The Kerala High Court ruled in favour of the wife, making the following important observations:
Marital Rape as Cruelty – The court held that forced sexual intercourse within marriage amounts to cruelty, which is a valid ground for divorce under Section 13(1)(i) of the Hindu Marriage Act, 1955.
Violation of Dignity and Autonomy – The court emphasized that a woman’s consent is paramount, even in marriage, and forcing intercourse violates her right to dignity, autonomy, and bodily integrity.
Marriage Does Not Imply Unconditional Consent – The judgment made it clear that marriage does not give a husband an automatic right to force himself on his wife. Consent must be continuous, and the lack of it makes the act abusive.
Marital Rape Considered as Rape (Morally & Legally for Divorce) – While Indian law does not criminalize marital rape under the IPC (except in specific cases like a minor wife or separation), the court acknowledged that rape remains rape, irrespective of marriage.
Progressive Interpretation – The court referred to international human rights norms, reinforcing that legal systems worldwide are moving toward recognizing marital rape as an offence.
Public Discourse and Political Perspectives
Rahul Gandhi’s Stand on Criminalization – Rahul Gandhi has openly supported the criminalization of marital rape, emphasizing the importance of consent in safeguarding women’s autonomy and safety within marriage. His stance highlights the growing recognition of marital rape as a serious violation of women’s rights.
Government Positions – Over the years, different governments have taken varied approaches to this issue. The Congress government in 2013 rejected proposals to criminalize marital rape, while the BJP government has taken a cautious stance, emphasizing the need for stakeholder consultations and broader legal reforms. These responses reflect the complex and sensitive nature of the debate.
The ongoing legislative discussions on marital rape reveal the changing legal, social, and political perspectives in India. The evolving discourse highlights the urgent need for legal reforms to address marital rape as a serious violation of women’s rights, ensuring justice, equality, and dignity in intimate relationships.
Overcoming The Problem Of Marital Rape: A Comprehensive Approach
Marital rape, which is a pervasive form of intimate partner abuse, continues to be a significant challenge globally, including in India. Addressing this complex issue needs a multifaceted Plan that includes legal reforms, societal change, education, and support systems to protect the rights and respect of individuals within marriages.
1. Legal Reforms and Enforcement
To effectively combat marital rape, legal reforms must be implemented to explicitly criminalize the act, removing exemptions that protect perpetrators. India should align its legal framework with international human rights standards, reinforcing that all forms of sexual abuse are punishable.
Enforcement is equally critical– authorities must be trained to handle marital rape cases sensitively and effectively. Establishing specialized courts or units for intimate partner violence can ensure timely justice. Additionally, providing legal aid and support services will empower survivors to seek justice without fear or stigma.
2. Education and Awareness
Education and awareness are key to preventing marital rape. Comprehensive sex education can teach consent, bodily autonomy, and healthy relationships from an early age, fostering gender equality. Public awareness campaigns can challenge societal norms, debunk myths, and highlight the legal implications of marital rape. Engaging communities, religious leaders, and influencers can help shift attitudes toward supporting survivors and rejecting violence.
3. Support Systems for Survivors
Support systems for survivors of marital rape are crucial for healing and justice. Accessible helplines, shelters, counselling, and legal aid can help survivors rebuild their lives. Healthcare providers should be trained to recognize abuse and offer support. Empowering survivors to speak out without fear is essential, with anonymous reporting, survivor-centred legal processes, and community support networks ensuring their safety and validation.
4. Cultural Shifts and Gender Equality
At the heart of combating marital rape lies the need for profound cultural shifts that challenge patriarchal norms, gender stereotypes, and power imbalances within relationships. Promoting gender equality through policies that empower women economically, socially, and politically can reduce vulnerabilities that lead to marital rape. Engaging men as allies in ending violence against women through education programs on healthy masculinity and respectful relationships is crucial in changing harmful attitudes towards women’s autonomy.
Conclusion
Marital rape remains a serious yet unrecognized crime in India, highlighting the urgent need for legal reforms, societal change, and stronger support systems. While courts have taken progressive steps in acknowledging marital rape as a form of cruelty, the absence of criminalization continues to deny justice to survivors. Addressing this issue requires a multifaceted approach, including clear legal provisions, public awareness, education on consent, and survivor-centred support services.
Criminalizing marital rape is not just a legal necessity but a moral imperative to uphold women’s dignity, autonomy, and fundamental rights. India must move beyond cultural taboos and recognize that marriage should never be a shield for sexual violence. True gender equality can only be achieved when every individual has the right to say ‘No’—regardless of their marital status.
FAQS
1. What international human rights standards address marital rape?
Several international conventions advocate criminalising marital rape, including:
•Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
•United Nations Declaration on the Elimination of Violence Against Women
•Beijing Declaration and Platform for Action
2. What are the legal challenges in criminalising marital rape in India?
Presumption of Consent in Marriage: The legal framework assumes that a wife has given perpetual consent to sexual relations with her husband.
Fear of False Allegations: Some argue that criminalising marital rape could lead to misuse of law.
Impact on Family Structure: The government has often stated that criminalising marital rape might destabilize the institution of marriage.
3. What role does public awareness play in addressing marital rape?
Legal Literacy Programs: Educating people about consent and sexual rights.
Judicial Sensitization: Training judges and law enforcement to handle marital rape cases with empathy.
Advocacy by NGOs: Organizations like the RIT Foundation, Lawyers Collective, and Amnesty International actively push for legal reform.
Reference
https://www.indiatoday.in/law/story/explainer-the-debate-over-marital-rape-1903050-2022-01-21
https://www.opindia.com/2022/01/marital-rape-debate-explained-arguments-for-and-against/
https://indiankanoon.org/doc/7369360/
https://indiankanoon.org/doc/145872256/
www.indiatoday.in/law/story/explainer-the-debate-over-marital-rape-1903050-2022-01-21
Section 375 of the Indian Penal Code 1860
Independent Thought v. Union of India WP (C) 382/2013
Section 63 of the Bharatiya Nyaya Sanhita 2023
https://indiankanoon.org/doc/145872256/
https://indiankanoon.org/doc/7369360/
www.opindia.com/2022/01/marital-rape-debate-explained-arguments-for-and-against/
www.indiatoday.in/law/story/explainer-the-debate-over-marital-rape-1903050-2022-01-21
