Author – Prabal Kumar Vishisht, a student at National Law University, Delhi
STATUS OF MARITAL RAPE EXEMPTION IN INDIA
TO THE POINT
The status of marital rape exemption in India remains contentious and unsolved over the years despite decades of gender reforms, judicial activism, and international calls. Section 375 of the IPC protects the husband from any prosecution for forced sexual relations with his wife, provided she is above 18 years. This provision stands in complete contrast to India’s progressive steps towards women’s justice, like the criminalization of dowry deaths and domestic violence. The arguments on this issue has intensified over the years, with questions being raised on the constitutionality of this provision. The proponents in favor of the criminalization of marital rape argue that it violated articles 14, 19, and 21 of the Indian Constitution.
During the pre-2000s, there was gradual acceptance of marital rape exemption; however, recent years have shown more judicial activism. The cases regarding sexual violence were taken into consideration under other sections of the IPC and other statutes and laws. These provisions provided civil remedies in cases of sexual violence, but this does not address marital rape explicitly. The judiciary acknowledged the importance of sexual autonomy and dignity of women in cases like Justice K.S. Puttaswamy (Retd.) v. UOI. In Independent Thought v. Union of India (2017), the amendment in section 495 raised the age of consent from 15 to 18 to align the exemption with POCSO (Protection of Children from Sexual Offences Act). These tiny adjustments did not absolve the women’s vulnerability. The Justice Verma Committee report following the Nirbhaya rape case condemned the criminalization of marital rape in its reassessment of various sexual assault laws. The report termed this provision “archaic” and argued that it infringes the integrity and sexual autonomy of women. The report urged that the exemption reinforce the erstwhile patriarchal and
USE OF LEGAL JARGON
Marital rape is characterized as forceful sexual intercourse by a husband with his wife, infringing her sexual and bodily autonomy. Despite its significant pitfalls for women, this act is not mentioned as a crime under exception 2 of Section 375 of the IPC, which suggests that a husband has an implied consent to maintain sexual relations with his wife even by force, provided that the wife is above 15 years old (this age was increased to eighteen following a Supreme Court ruling in case Independent Thought v. Union of India 2017). The provision stands in complete contrast to India’s progressive steps towards women’s justice, like the criminalization of dowry deaths and domestic violence.
THE PROOF
The non-recognition of marital rape could lead to pervasiveness of this offense which can distort the society and harm the social fabric of society. It generates a negative attitude towards women in the society that treats them as a mere commodity which possess no legal right to raise voices against the abuses they suffer. A 2020 study conducted by International Institute for Population Sciences reported that 60% of women reported experience sexual abuses from the husbands within marriage due to failure to meet marital expectations of their family such as domestic chores, sexual gratification etc. The 2018 National Family Health Survey (NFHS-4) highlighted a prevalent belief that views women primarily as means of sexual pleasure, with 42% of women and 52% of men supporting the justification of physical violence against a wife for denying sexual services to her husband. When marital rape is overlooked as an offense, the society ignores the larger repercussions of such
Offenses. When such an offense like marital rape is not recognized based on the belief that women consent can be overridden, it can lead to extension of similar mindset to other non-marital contexts like workplace harassment or stranger rape. Feminist scholar Catharine MacKinnon, in Toward a Feminist Theory of the State (1989) and Andrea Dworkin in Intercourse (1987) suggested that the countries that do not criminalize marital rape foster an environment where women ‘s bodies are seen available, and their consent is sought to be negotiable. This type of attitude would also be detrimental to the victims of marital rape and sexual assault as it may prevent them from voicing their experiences in any environment, including their workplaces. A 2020 report published by International Labour Organization (ILO) reported that only 10% of the women file complaints out of 35% experiencing sexual harassment at workplaces due to fear of societal bad beliefs. The report linked such alarming numbers to long-established outdated and cultural practices against women such as marital rape exemptions, the lack of robust legislations and judicial criteria. The WHO survey regarded that in countries without marital rape laws, such as India, victim-blaming is prevalent, with 30–40% of surveyed communities attributing sexual violence to women’s behavior (e.g., refusing sex, “disobeying” husbands). In contrast, countries with marital rape laws (e.g., UK, Canada) show lower victim-blaming rates (10–15%), suggesting legal recognition reduces such attitudes. This would erode the trust of victims in the legal and social structures which will affect the growth of society in a long term. This also strengthens the offenders by implying that gender-based violence is acceptable, thereby encouraging them to commit further acts of sexual violence within or outside domain of marriage.
ABSTRACT
There have been arguments around the violation of constitutional provisions due to the persistence of the marital rape exemption in Section 375. Article 14 ensures equality to all its citizens without any discrimination. However, denying married women the right to file a complaint against rape occurring within the marriage, a right given to unmarried women, is certainly a violation of Article 14. The Karnataka High Court, in Hrishikesh Sahoo vs. State of Karnataka, ruled this exemption as archaic, which violates the right to equality under Article 14 by denying equal protection to married women from such a heinous offense as rape. Article 21. Marital rape also constitutes a direct violation of Article 21 of the Indian Constitution by denying a married woman her right to refuse an unwanted sexual relationship with her husband. The Indian Supreme Court in X vs. Principal Secretary (2022) held the verdict that the Medical Termination of Pregnancy Act provides equal protection to married women as well as unmarried women to access safe abortions from forced sexual intercourse within or outside a marital context. The Supreme Court in Independent Thought v. Union of India affirmed its opinion, which raised the age limit for consent from 15 to 18 in the provision of exemption. The court, though, ruled in favor of minor wives; however, it indirectly gave an argument in support of adult women by stating that marital rape certainly violates the right to sexual autonomy of a woman under Article 21, a principle that was established in the Puttaswamy v. Union of India case. Similarly, the Gujarat High Court in Jaideep Bhanushankar Verma v. UOI, the court assesses the marital rape exemption under Section 375 of the IPC. The court sent notifications to both the central and state governments, indicating that this provision undermines a wife’s sexual autonomy under Article 21, rendering her subordinate to the husband. The court argued against the discrepancies within the provisions through reference to Section 354 IPC, which penalizes sexual assault by a husband on his wife without requirement of consent. On the other hand, Section 375 assumes that a marriage implies consent, disregarding cases of coerced sexual intercourse.
CASE LAWS
K.S. Puttaswamy (Retd.) v. Union of India – The judiciary acknowledged the importance of sexual autonomy and dignity of women in cases like Justice K.S. Puttaswamy (Retd.) v. UOI.
Hrishikesh Sahoo v. State of Karnataka – The Karnataka High Court, in the case Hrishikesh Sahoo v. State of Karnataka, prosecuted a man and held that the association of marriage does not imply consent for forced sexual relations with a wife. It also ruled this exemption as archaic, which violates the right to equality under Article 14 by denying equal protection to married women from such a heinous offense as rape.
RIT Foundation v. Union of India – In RIT Foundation V.UOI , the Court gave a split verdict over its constitutionality, which pushed the issue to the Supreme Court. As of now, the Supreme Court is hearing multiple petitions over this issue.
Jaideep Bhanushankar Verma v. Union of India – Similarly, the Gujarat High Court in Jaideep Bhanushankar Verma v. Union of India, examines the petitions against marital rape, asking for reassessment of the marital rape exemption under Section 375 of the IPC. The court sent notifications to both the central and state governments, indicating that this provision undermines a wife’s sexual autonomy under Article 21, rendering her subordinate to the husband. The court argued against the discrepancies within the provisions through reference to Section 354 IPC, which penalizes sexual assault by a husband on his wife without requirement of consent. On the other hand, Section 375 assumes that a marriage implies consent, disregarding cases of coerced sexual intercourse.
CONCLUSION
The author opines that marital rape must be recognized as a criminal offense in India. Marriage does not grant the right to sexual intercourse with a spouse without their explicit consent. The perpetrators of marital rape are not punished due to its non-recognition as a criminal offense. The HMA does not list marital rape as a ground for divorce under Section 13. The courts have interpreted the law to classify marital rape in the form of sexual harm under cruelty as a ground for divorce under section 13. The psychological effects of marital rape are acknowledged as a type of cruelty that can be grounds for divorce or judicial separation. The court acknowledged psychological trauma arising from marital rape as corroborative evidence in court proceedings. The punishment for marital rape as a form of cruelty does not serve complete justice to the victim. The actual punishment for rape extends from 7 to 10 years, and in the most heinous cases, it can extend to death penalty. Marital rape constitutes a far more serious offense than the actual penalties given in divorce or judicial separation proceedings. The marital rape causes significant long-term psychological and emotional trauma as well as bodily harm to the women; however, the penalties imposed are much less severe than the collective harm inflicted. Therefore, it must be treated with the same seriousness as stranger rape. Although, recognition of marital rape as a crime has its own challenges, including misuse of law through false cases, lack of corroborative evidence, etc. These can be addressed through the establishment of robust judicial standards and legislative measures. It is crucial to protect the interests of other victims so that they must not suffer due to the likelihood of a potential surge in malicious cases within the judicial system.
Until the current status quo is changed, the awareness regarding marital rape must be spread among the rural women and others belonging to marginalized communities, as these are the women who are affected the most by this practice. It is important to educate women about their legal right to initiate divorce proceedings if their husbands subject them to forced sexual intercourse. The significance of consent and personal autonomy is greater than that of other marital responsibilities, and it’s not a marital obligation to engage in sexual intercourse merely at the discretion of the husband.
FAQS
- Is the argument of the Supreme Court that criminalization of marital rape can lead to vast misuse of provision viable?
A: NO, though the provision can be misused by the women for retaliation against their husbands, however the true victims cannot be denied justice just because of probable misuse. Comparing this provision with misuse of cruelty provision under section 498A is wrong as that section has also been used to provide redressal to aggrieved women at a larger extent.
• Is the argument of the government that criminalizing marital rape can attract backlash from religious groups and consequently breakdown of marriages valid?
B: No, several landmark judgements have been made such as abolition of practice of Triple Talaq through Muslim Women ( Protection of Rights on Marriage ) 2019; provision of maintenance under section 125 CRPC for Muslim women; equal inheritance rights for Hindu women through Hindu Succession Act, 1956 have granted justice to the women and consequently there had been no huge objection or overhaul of personal laws and break down of marriages.
- Does the non recognition of this crime as offense leads to discrimination between married and non married women ?
C: Yes, rape by a stranger is a crime then why does the husbands are exempted from this heinous offence. This is certainly the violation of equality between married and unmarried women. This argument was acknowledged in case X v Principal Secretary, Health and Family Welfare Department.
