Author : Bhavika Dhuria, Chandigarh University
Linkedin Profile: https://www.linkedin.com/in/bhavika-dhuria-6b20b7340?utm_source=share&utm_campaign=share_via&utm_content=profile&utm_medium=ios_app
To the point
Marital Rape is recognised as a “non consensual sexual intercourse by a spouse (basically male) with his partner (female/ woman ).” It basically occurs without the consent of the partner even they are legally married with each other.
Key Points
Rape committed or non consensual sexual intercourse take place.
Between two people who are fairly wedded.
Generally committed by a husband with his partner.
In India marital rape is not a crime. Under the section 375 exception 2 of Indian Penal Code,1860 (IPC) if the husband done non consensual sexual intercourse with his wife who is above the age of 15 and under the section 63 exception 2 of The Bharatiya Nyaya Sanhita,2023 (BNS) if the wife is above the age of 18 year then it is not consider as a marital rape.
Domestic violence laws, such as the Protection of Women from Domestic Violence Act, 2005, provide civil remedies for abuse, they do not criminalize non-consensual sex within marriage.
The National Family Health Survey: In 2019-2021, physical, sexual or emotional violence had been done by their husbands to 32% of married women, and the woman between the age of 18-49 years had experienced sexual violence by their husbands the percentage of them are 82%.
According to International men and gender equality survey 2011: 1 out of every 5 men had forced their wife to have sex.
According to the report of NFHS-4: 4% of the women were forced by the husband to enter into sexual intercourse, 2.1% to perform sexual acts and 3% were being forced when they don’t have any will to take part in the sexual activity.
India is counted in those 36 countries in which marital rape is not considers as an offence against the women. Many countries in the world i.e. US criminalised the marital rape for the protection of rights of the women. Yet many legal changes have been made in criminal law for the protection of the women, the non- criminalisation of marital rape in India violates the rights and reduce the dignity of a women.
Abstract
Despite the progress of the society the marital rape being a non criminalised offence shows the mentality of society that the society thinks that after the marriage there is a right which is provided to the husband for sexual intercourse against the proper will of the wife. Marital rape being a non punishable crime in India describe the British era time period mentality of the people. Marital rape is a contentious and a form of sexual violence and the statutory provisions which provide the benefit to man or provide exception to the man in the case of marital rape raises serious legal and ethical concerns, particularly in light of India’s obligations under international human rights law. It violates the rights of married woman such as Article 14 (right to equality), Article 15(non discrimination on the ground of race, caste , religion and sex) ,Article 19 and Article 21. To prevent the women from being sexual harassed the laws are being enforced by the government and demand of punishing the marital rape as a rape is raised. This article explores the constitutional, legal, and human rights dimensions of marital rape and argues for its urgent criminalisation to align Indian law with global standards and the constitutional vision of gender justice.
Use of legal jargon
The word rape is defined under section 375 of Indian Penal Code ,1860 (IPC) and section 63 of The Bharatiya Nayay Sanhita, 2023 (BNS).
In simple words, the term rape is non consensual sexual intercourse by a person (basically male) with the other person (basically female) and the marital rape is defined as a rape or non consensual sexual intercourse between two person in a bond of marriage.
In India marital rape is not criminalised or punishable under the exception 2 of section 375 of IPC and section 63 of BNS. In 2005, the enactment of the Protection of Women from Domestic Violence Act recognised marital rape as a form of domestic violence. This Act enables women to seek legal remedies for marital rape, offering a ground of seeking the legal separation from an abusive spouse.
WHY IT SHOULD BE CRIMINALISED?
Marital rape violates a woman’s fundamental rights such as:
Right to equality- Article 14 (The State shall not deny to any person equality before the law within the territory of India or equal protection of the laws in that territory). According to article 14 of Indian constitution every one should be treated equally and there should be no discrimination on any basis. Marital rape violates the fundamental right of equality as in this there is no equal rights given to married women equal to unmarried women due to non criminalisation of marital rape in India.
The second exception to section 375 ultra vires the right to equality incorporated in ‘Article 14’ of the Indian Constitution as it discriminates against those women who are married by disconfirming them tantamount security from rape and sexual abuses
There should be no discrimination on any basis such as religion, sex, caste and race – enshrined under article 15 of the constitution of india. according to the article 15 of the Indian constitution there should be no discrimination on the basis of race, caste ,religion and sex.
Right to life and personal liberty : Article 21 Right to life and personal liberty states that no one may be deprived of these rights unless a legally mandated process is followed.of the Indian Constitution, specifically that “the government shall not deny any person to live his life and to provide the right of personal liberty except if any procedure is given by the law.” Every element that is necessary for leading a fulfilling life is covered by Article 21, including the rights to privacy, health, dignity, a safe environment, safe living conditions, and many more.
In the State of Maharashtra & Anr. vs. Madhukar Narayan Mardikar
In Justice K.S. Puttuswamy (Retd.) v. Union of India, the Supreme Court or the Apex Court held that the right to privacy as a fundamental right of all citizens.
The right to privacy includes various rights such as “decisional privacy which reflect that ability to make decision of being intimate with someone is the private and primary decision of a woman and everyone should respect that decision. In this ruling, the Supreme Court acknowledged that all women, regardless of marital status, have the fundamental right guaranteed by Article 21 of the Constitution to refrain from sexual activity. Thus, the nonconsensual intercourse with a woman by her husband is a violation of the fundamental right under article 21 of the constitution of India.
The doctrine of transformative constitutionalism obliges the state to interpret laws in a manner that furthers values of liberty, dignity, and non-discrimination. The marital rape exception fails this standard and preserves the doctrine of coverture, a colonial-era notion treating the wife as subordinate to the husband.
Thus the marital rape should be ciminalised in India as the rape is a heinous crime against a human and it violates many fundamental rights of a women and provide man a immunity that if he is married then he has a license of having sex with his wife without the proper consent.
The Proof
Section 375, Exception 2 of the IPC: Grants immunity to a husband for having non-consensual intercourse with his adult wife.
Independent Thought v. Union of India (2017): The Supreme Court has read down Exception 2 for minor wives to institute their rights to bodily integrity.
RIT Foundation v. Union of India (2022): Since the split verdict appeared in the Delhi High Court, the Supreme Court is now seized of the matter.
Government Reply: Opposed criminalisation, citing possible abuse and marital harmony.
International Law: India being a signatory to CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women), which inter alia requires that violence of all kinds be averted against women, including that within the marriage.
Following the 2012 Nirbhaya rape case, the Justice Verma Committee recommended making marital rape a crime and stated that marriage did not imply unchangeable consent to sexual activity. However, the Indian government disregarded the recommendation.
Case Laws
Hrishikesh sahoo v. State of Karnataka
In Hrishikesh Sahoo v. State of Karnataka, the Karnataka High Court made a progressive and constitutionally aligned interpretation by holding that forced sex within marriage is not immune from legal scrutiny. Though the statutory exemption still exists, the judiciary is clearly shifting toward recognizing marital rape as a punishable offence in spirit, if not yet in letter.
2. Independent Thought v. Union of India (2017) 10 SCC 800
The Supreme Court raise the age of consent in marriage to 18 under the exception 2, telling that sexual intercourse with a minor wife is rape.
3. RIT Foundation v. Union of India in 2022 by Delhi High Court
This case is a challenge to the marital rape exception given under section 375 of IPC in which the justices have different decisions which are :
Justice Rajiv Shakdher: Exception 2 violates Articles 14 and 21.
Justice C. Hari Shankar: Exception 2 is constitutionally valid.
After the dispute of the decision in the high court the matter is referred to the supreme court where it is still pending.
4. The State vs. Vikash, 2014
In the case of the State vs. Vikash, 2014, Special fast track court in Delhi stated that “the petitioner and respondent (accused) being a legally married husband and wife, the petitioner being major, the sexual intercourse between them, whether forceful, is not considered as rape and no punishment can be awarded to the accused of the offence.
CONCLUSION
India’s rape laws, which exempt marital rape, reveal an old colonial mindset, where marriage is an irreversible contract of consent. In the light of modern constitutional values and global human rights obligations, such a contradiction must stand abated. This glaring legal inertia should be replaced by reform-oriented assertions favouring all women-whether married or unmarried-with the right to live dignified lives autonomously, and free from violence. The criminalisation of marital rape is not antagonistic to the institution of marriage; rather, it reinforces the premise that consent is fundamental in all human relationships.
Rape is contained within the domain of sexual assault in India which also includes acts that fail to be regarded as intercourse, by several regimes.
Marital rape or spousal rape should be consider as a crime as it is nowhere mention that this is a right of a husband to force or threaten his wife to enter into any kind of sexual activity against her will. It should be punishable as the offence of rape as there should be equality between the married and unmarried women. The marital status of a women should not affect her privacy and right to freedom.
FAQS
What is marital rape?
Marital Rape is recognised as a “non consensual sexual intercourse by a spouse (basically husband) with his partner (wife).” It basically occurs without the consent of the partner even they are legally married with each other.
2. Is marital Rape criminalised in india?
Although marital rape is not yet illegal in India, it is under section 63 of the BNS and section 2 of section 375 of the IPC, which state that it is a crime if the victim is not above the age of 18.
3. Marital rape violates which fundamental rights of a woman?
Numerous fundamental rights guaranteed by the Indian constitution, including Article 14 (right to equality), Article 15 (no discrimination on the basis of race, caste, or gender), Article 19 (right to freedom), and Article 21 (right to life and personal liberty), are violated by marital rape.
4. How does the IPC punish rape?
The punishment of rape is defined under the section 376 of IPC and section 64 of BNS which shall not less than 10 years of rigorous imprisonment.
5. Should in India marital rape criminalised or not?
In India marital rape should be criminalised as everyone has right to freedom and equality. The marital rape violates the fundamental right of equality and freedom of a woman. If a woman is married that does not mean that her husband or partner have any right of forceful sexual intercourse which she doesn’t want to do. Thus the marital rape in India should be criminalised as a general rape because it is as heinous as the rape.
