Author: Divisha Mishra, Icfai law school, Icfai University Dehradun
Abstract
Marital rape, often referred to as non- consensual sexual intercourse by a husband with his wife, is a critical issue in India’s legal and societal context. The Indian Penal Code(IPC), under section 375 , defines rape but excludes marital rape from its scope through Exception 2 , which exempts husbands from prosecution for raping their wives, provided the wife is not under 18 years of age. This exemption has sparked intense debates, as critics argue that it violates the rights of married women to equality, personal autonomy, and protection from sexual violence. Despite public protests and legal challenges, marital rape continues to be legally overlooked in India. The issue is deeply embedded in Political, cultural, and social constructs about marriage, gender roles, and the preservation of the institution of marriage. The legal discourse around marital rape is evolving, and the outcome of ongoing cases may bring significant changes to the legal landscape of women’s rights in India.
Historical Context: The roots of marital rape immunity can be traced to colonial-era laws that treated women as the property of their husbands. The common law doctrine of ‘coverture’ presumed that a wife had irrevocably consented to sexual relations upon marriage, thus precluding the possibility of rape within marriage. This archaic concept was codified in Indian law under the Indian Penal Code, 1860, drafted by Lord Macaulay, which continues to influence contemporary legal interpretations.
In India, this historical context is compounded by socio- religious traditions that glorify the subservience of women within marriage. Laws like the Hindu Marriage Act, 1955, and interpretations of personal laws have historical emphasized the duties of a wife over her rights, fostering a culture where the denial of consent within marriage is often dismissed or ignored.
Definition: Marital rape refers to the act of a husband engaging in non-consensual sexual intercourse with his wife. While the term itself is universally understood in legal context, in India, it is not explicitly criminalized due to the legal exception in Section 375 of the IPC.
Legal Status in India: As per Exception 2 to section 375 of the IPC, marital rape is not recognized as an offense unless the wife is under the age of 18. This effectively grants immunity to husband from prosecution for raping their wives, as long as the wife is of legal age.
Controversy: The exception has sparked widespread criticism, especially from women’s rights groups, arguing that it perpetuates gender- based violence and undermines the principle of bodily autonomy. The legal system’s failure to criminalize marital rape leaves women vulnerable to exploitation and abuse within the sanctity of marriage.
Current Scenario: Several petitions and legal challenges have been raised, seeking the removal of the marital rape exception, but the government and certain political groups have resisted these changes, citing potential destabilization of the institution of maintaining cultural norms.
Statutory Law
Section 375 IPC- The definition of rape under section 375 includes various circumstances such as lack of consent, force, or deceit. However, Exception 2 specifically excluded husbands from being charged.
Section 376 IPC- Although Section 376 provides for the punishment of rape, it does not account for marital rape under the same provisions as rape outside marriage, except in cases involving minors. This is a significant gap in Indian criminal law, as it perpetuates the notion that a wife cannot refuse intercourse within marriage.
Judicial Developments:
Independent Thought v. Union of India 2017: this landmark case brought attention to the issue of child marriage and marital rape. The Supreme court raised the age of consent from 15 to 18 years, making marital rape a criminal act when the wife is a minor. While it was a step forward in criminalizing rape within marriage for minor, it did not extend this protection to adult women in marriages.
RIT Foundation v. Union of India (pending): this ongoing case before the supreme court challenges the constitutionality of Exception 2 to section 375, arguing that it violates Articles 14,15,and 21 of the Constitution, which guarantee equality, non- discrimination, and the right to life and personal liberty. The Court’s verdict on this petition could be a game-changer in shaping the future of marital rape laws in India.
Global perspective: many countries around the world, including the USA, the UK, South Africa, and Australia, have criminalized marital rape, considering it a severe violation of Human Right . These nations have recognized that marriage does not provide immunity from criminal acts, including rape. India, however, continues to uphold a legal framework that shields husbands from prosecution in cases of marital rape, reflecting a dissonance between India’s laws and international Human Rights standards.
Case Laws
Independent thought v. Union of India 2017: the Supreme Court of India in this case ruled that a husband who engages in sexual intercourse with his wife under age of 18 years commits marital rape. This ruling was a significant shift, as it acknowledged the violation of a minor’s rights within marriage. The case raised important questions about the sanctity of marriage and the protection of women’s rights in a patriarchal society. However, the ruling did not extend the sane protection to adult women in marriage, leaving a major gap in the legal framework.
State of Karnataka v. krishnappa 2000: this case focused on the broader issue of violence against women and the recognition of sexual violence as a human rights violation. While it did not directly address marital rape, it laid the foundation for future discussions by highlighting the need to protect women’s dignity and bodily integrity. The ruling stressed the importance of recognizing women as individuals with rights, a principle that could be applied to future cases of marital rape.
RIT Foundation v. Union Of India(ongoing): this petition directly challenges the constitutional validity of the marital rape exception. It argues that the exception violates the principles of equality and justice and subjects married women to a lifetime of sexual violence without recourse. The case is pivotal in determining whether the Indian legal system will evolve to recognize marital rape as a punishable offense.
Joseph Shine v. Union of India 2018: Although primarily focused on the decriminalization of adultery, this case also dealt with gender equality within marriage. The Supreme Court struck down the adultery law, declaring it unconstitutional because it discriminated against women. The judgment has been referenced in the context of marital rape to argue that laws must treat men and women equality in all aspects of marriage.
New Laws and Developments (2024)
Bharatiya Nyaya Sanhita Bill, 2023: this proposed bill seeks to overhaul the IPC and introduced several changes to criminal laws in India. However, it has faced criticism for retaining the marital rape exception despite widespread calls for its removal. Activist argue that the bill fails to reflect progressive legal thinking and does not align standards, specifically in the context of marital rape.
Legislative pushback: despite significant advocacy for the criminalization of marital rape, the Indian government has shown reluctance to amend the law. Concerns about potential disruption to marital relationships and the sanctity of marriage have been cited as reasons for maintaining the status quo. Political leaders from various parties have varied stances on the issue, leading to a lack of consensus on how to address marital rape legally.
International pressure: India’s failure to criminalize marital rape has drawn criticism from international bodies, including the United Nations and Human Rights Watch. These organizations have argued India to reform its laws to provide better protection for women and align with its international obligations under conventions like CEDAW.
Social and Cultural Resistance:
Traditional views on Marriage: in many parts of India, marriage is seen as a sacred institution where a wife is expected to submit to her husband’s authority. This traditional mindset has contributed to the reluctance to recognition of marital rape as a crime. Many view it as a private matter that should not be subject to legal intervention.
Stigma Around Reporting Marital Rape: women often hesitate to report marital rape due to social stigma and fear of social ostracization. In many cases, victims are discouraged from speaking out by their families, communities, and even law enforcement. The legal framework, which excludes marital rape, further complicates the issue.
Gender Inequality and Patriarchal Norms: the failure to criminalize marital rape highlights the deep-rooted gender inequality and patriarchal norms perpetuate the belief that women are subservient to their husbands and do not have the right to say no to sex within marriage. The legal system, by excluding marital rape, reinforces these harmful stereotypes.
Public Opinion and Activism:
Activism for change: various women’s rights organizations and activists have been at the forefront of the push to criminalize marital rape. Campaigns like #NOMARRIAGEISRAPE and #ENDMARITALRAPE have gained significant traction in raising public awareness about the issue and pressuring the government to reconsider the legal status of marital rape.
Political Influence on legal reform: the political establishment’s resistance to reform is influenced by a combination of cultural, religious, and social factors. Many law makers argue that the criminalization of marital rape could destabilize families and undermine the sanctity of marriage. However, women’s groups and human rights organizations continue to challenge these views, advocating for a legal framework that protects women from all forms of sexual violence.
Conclusion
The legal status of marital rape in India remains one of the most contentious issues in the ongoing battle for women’s rights. The exclusion of marital rape from the IPC creates a legal and moral paradox, where a women’s consent is considered irrelevant within the confines of marriage. Despite efforts by activists and legal reformists, the Indian legal system continues to reflect outdated norms about marriage, gender roles, and the rights of women. The outcome of ongoing cases such as RIT Foundation v. Union of India can determine the future of marital rape laws in India. Criminalizing marital rape is essential not only for the protection of women’s rights but also for advancing gender equality and ensuring that women’s bodies are no longer treated as the property of their husbands. The path forward requires political will, legislative action, and a deep societal transformation that recognizes marriage as a partnership based on mutual consent and respect.
FAQS
What does the Constitution of India say about marital rape?
The Constitution of India, under Article 14 (right to equality), Article 15 (prohibition of discrimination), and Article 21(right to life and personal liberty), guarantees fundamental rights to all citizens. Critics argue that the marital rape exception in Section 375 of the IPC violates these constitutional rights, as it denies married women protection from sexual violence.
What are the arguments for retaining the marital rape exception?
Supporters of the marital rape exception often argue that criminalizing it could destabilize the institution of marriage, lead to false accusations, and disrupt familial harmony. These arguments, however, have been widely criticized as perpetuating patriarchal norms and ignoring the fundamental right to consent.
Can marital rape be prosecuted under any other laws in India?
While marital rape is not explicitly recognized as a crime, women can seek recourse under other laws, such as:
The Protection of Women from Domestic Violence Act, 2005 (PWDVA): provides civil remedies, including protection orders and monetary relief.
Section 498A of IPC: addresses cruelty by a husband or his relatives, which can include sexual violence.
Divorce laws: non- consensual intercourse may be considered a ground for divorce under some personal laws.
What is the impact of the marital rape exception on women’s mental health?
The legal exemption for marital rape exacerbates the trauma of survivors, as it denies them legal recognition and justice. This can lead to severe psychological issues, including depression, anxiety, and post-traumatic stress disorder(PTSD), and leaves women feeling helpless within their marriages.
How does India’s stance on marital rape compare to other countries?
India remains one of the few countries where marital rape is not criminalized. Nations like the United States, United Kingdom, Canada, Australia and South Africa have criminalized marital rape, recognizing it as a violation of women’s rights and dignity.
What role do cultural norms play in the legal treatment of marital rape in India?
Cultural norms in India often view marriage as a sacrament and a lifelong bond, where the wife is expected to submit to her husband’s wishes. These societal attitudes influence the legal system and contribute to the reluctance to criminalize marital rape, despite its violation of personal autonomy and human rights.
What are the key challenges in criminalizing marital rape?
Political Resistance: many lawmakers fear backlash from conservative groups and voters.
Cultural Sensitivities: traditional views about marriage and gender roles hinder progress.
Fear of misuse: concerns about potential misuse of marital rape laws have been raised, though evidence of widespread misuse of such laws in other countries is limited.
Are there any specific recommendations for addressing marital rape in India?
Amending Section 375 IPC: remove exception 2 to ensure that rape laws apply equally to all women, regardless of marital status.
Public Awareness Campaigns: educate people about the importance of consent within marriage.
Judicial Training: sensitize judges and law enforcement officers about gender equality and marital rape.
Support Systems: strengthen counseling, legal aid, and shelter facilities for survivors.
How does the marital rape exception affect child marriages?
While the Supreme Court in Independent Thought v. Union of India 2017 declared that sexual intercourse with a minor wife(below 18 years) constitutes rape, child marriages still occur in many parts of India. The marital rape exception indirectly legitimizes child marriages, leaving minor girls vulnerable to sexual violence.
Can international treaties influence India’s stance on marital rape?
India is a signatory to international treaties like CEDAW and ICCPR. These treaties obligate India to protect women from all types of violence, including marital rape. Continued non-compliance with these obligations could harm India’s international reputation.
How does the judiciary view the concept of consent in marriage?
Indian courts have increasingly recognized the importance of consent in marital relationships. For example, in the Joseph Shine case, the supreme court struck down the adultery law, emphasizing gender equality and individual autonomy in marriage. Such judgment suggest a growing acknowledgement of consent as a cornerstone of marital relationships.
