Author: Sai Smruti Kiran, Centurion University of Technology and Management
TO THE POINT
Marital rape is a highly debated legal loophole in the Indian system. Although it is an offence against the human body, it highly affects the victim’s mental and physical state. Marriage was historically regarded as a sacred institution of love and familial bond. However, the concept of irrevocable consent to sexual intercourse after sexual intercourse after marriage has increasingly come under constitutional scrutiny. The marital rape exception is based on the outdated doctrine that a husband can have a sexual relationship with his wife anytime.Such doctrine is inconsistent with modern constitutional values that recognise women’s bodily autonomy, dignity, and personal liberty. Indian society is a prime example wherein the form of patriarchy has been witnessed in the institution of marriage. This topic demonstrates the deep contradiction between the prevailing patriarchal norms and basic constitutional rights. The traces of the marital rape exceptionhas its origin to English common law. Jurist Sir Matthew Hale propounded that a husband could not be guilty of raping his lawful wife because upon marriage, the wife gives irrevocable consent to sexual intercourse. This concept was incorporated into criminal laws, including the Indian Penal Code 1860. Though Many countries have abolished the marital rape immunity, India still continues to retain the exception for married women. This exemption stems from the patriarchalbelief of women being subordinate to men. The Indian Penal Code talks about the crime of Rape in sections 375 and 376. The main thing about this crime is the idea of Consent. This means that a grown woman says it is okay to have sex and she is not being forced or tricked into it.. There is something important to remember, which is exception 2 to section 375. This says that if a man has sex with his wife and she is older than fifteen years then it is not considered Rape. On one hand it says that having sex with someone without their consent is a crime. On the hand, it still has some old-fashioned ideas about marriage. For example, it implies that a woman has given her consent to sex just because she is married. This idea comes from a time when women were treated like property and their husbands could do what they wanted with them. It is like women do not have their thoughts or rights and their husbands have control, over their bodies. The Indian Penal Code and the idea of Rape are connected to this issue of Consent in marriage.
ABSTRACT
The world has been prominently running according to patriarchial setup. The biggest form of patriarchy has been witneesed in the institution of marriage. Even though sexual acts without the other person’s consent are normally treated as rape, the exception to Section 375 of the IPC, 1860 (which has been maintained largely in Section 63 of the Bharatiya Nyaya Sanhita, 2023), makes the rape committed by a man upon his adult wife not an act of rape. Even with considerable advances in legal measures and judicial interpretation over the last few decades, India continues to be among the very few nations wherein marital rape is not considered a crime. In this paper, I explore the exception of marital rape from a perspective of women’s constitutional rights and constitutional morality.
LEGAL JARGONS
SECTION 375 OF INDIAN PENAL CODE, 1860
Exception 2 to section 375 provided sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age is not rape.
VIOLATION OF ARTICLE 21
Article 21 entails the right to life, personal liberty, privacy, dignity bodily integrity, and sexual autonomy. Forciablesexual acts without consent infringe all of the abouvementioned constitutional rights.
Article 19
Protects personal freedom and expression. Sexual autonomy forms an integral part of personal liberty.
Bodily autonomy
The right of an individual to exercise control over their own body, including sexual and reproductive choices.
Right to dignity
A constitutional guarantee recognizing every person’s inherent worth and protection against degrading treatment.
To proof
The marital rape exemption is a point where the law meets constitutional law, criminal justice, and gender equality. By excluding men who commit the crime of rape against their spouses from punishment under the law due to their marital status, it fails to create a rational classification and also violates basic rights of equality, respect, privacy, and body under the Constitution of India. Although issues related to abuse and respect for marriage may be invoked, such policy considerations cannot serve as a basis for denying legal protection to women within marriage. The rights-based approach to law insists that consent must be at the core of all sexual relations, regardless of whether a person is married or not. The resolution of this question by the apex court or the parliament will go a long way toward shaping the future of gender justice and constitutional morality in India.
CASE LAWS
INDEPENDENT THOUGHT V UNION OF INDIA 2017
verdict was passed by the Supreme Court of India on the issue of child marriage and marital rape. According to the Court’s decision, if the woman is between 15 and 18 years old, then any kind of sexual act committed by the husband amounts to rape.
JUSTICE K.S PUTTASWAMY V UNION OF INDIA 2017
The Supreme Court recognised privacy as a fundamental right.
The Court observed: Privacy includes bodily autonomy; individuals possess decisional autonomy over intimate matters.
JOSEPH SHINE V. UNION OF INDIA 2018
the Supreme Court of India unanimously struck down Section 497 of the Indian Penal Code and Section 198(2) of the CrPC, decriminalizing adultery. The Court ruled these laws were unconstitutional, arbitrary, and violated women’s rights to dignity, privacy, and gender
SUCHITA SRIVASTAVA V. CHANDIGARH ADMINISTRATION 2009
The Supreme Court recognized reproductive choice as an essential aspect of personal liberty under Article 21. The Court affirmed bodily integrity and decisional autonomy of women.
FAQs
What is the marital rape exception in India?
It is the provision of law that grants an exemption from criminal prosecution for a man who engages in sexual intercourse with his adult wife without her consent under the present statutory system.
Which provisions of the Constitution can be used to challenge it?
Articles 14 (Equality), 15 (Non-discrimination), 19 (Rights) and 21 (Life and Personal Liberty).
Is it unconstitutional according to the Supreme Court?
No. The Supreme Court has not yet ruled on the constitutionality of the marital rape exception for adult women.
