According to UN Women, an organization that promotes women’s legal rights, every third woman across the globe has experienced violence, either sexual or physical, by a close companion, a non-partner, or both. According to it, in 2018, an estimated one in seven women had experienced physical or sexual violence from an intimate partner or husband.
Further, the International Men Gender Equality Survey conducted by International Centre for Research on Women noted that 1 in 5 men forced their wife or partner to have sexual intercourse with them. The data also shows that 20% of Indian men admit that they forced their wives or partners to have sexual intercourse.
Marital rape is not a crime in India because of which we do not have any specific data against such an act. The Indian criminal law treats marital rape under the clout of domestic violence. Recent results from India National Family Health Survey-5 (NFHS) indicate that nearly three out of ten women experience some form of domestic violence.
Based on data collected by the National Commission for Women, domestic violence against women increased significantly during the lockdown. In the case of domestic violence against women, the data shows a 79% increase from 2019.
What Is Marital Rape?
Marital rape refers to sexual relations between spouses without the consent of the other. The term ‘marital rape’ refers to any sexual act committed by a husband without the consent of his wife, carried out by force or physical violence. Simply put, forced sexual intercourse within a marriage constitutes marital rape.
As per section 375 of the Indian Penal Code, rape is “non-consensual sexual contact with a woman.” However, if a wife is over 15 years old, a husband is exempt from penal consequences for coercing her into intercourse without her consent.
Must Read: Rape In Indian Penal Code, Section 375
In Independent Thought vs Union of India (2017), the Supreme Court increased the age limit from 15 to 18 years. This exception ensures that there will not be rape charges filed against a husband who has sexual relations with his wife who is over 18 years of age without her consent. Because of this exception, husbands have been immune from any rape committed by them on their wives.
This exception in section 375 of IPC is the apple of discord behind the decade-long uproar for criminalizing rape in marriage. At present, the only recourse available in India for victims of marital rape is section 498A of the IPC and Domestic Violence Act, 2005, which deal with cruelty to protect victims against their spouse’s perverse sexual conduct.
18 Reasons Why Marital Rape Should Be Criminalised
Many prominent jurists, women’s rights activists, and social activists have argued for criminalising marital rape. Here is the list of all arguments:
1. Marriage cannot be viewed as a license for a husband to coerce sexual relations on demand.
2. Marriage cannot mean irrevocable implied consent.
3. Article 14 of the Indian Constitution protects people’s right to equality, and marital rape violates that right of a married woman.
Forced sexual cohabitation is also a violation of the fundamental right under Article 21.
4. Marital rape is in direct conflict with section 375 of the IPC. Specifically, section 375 intends to protect women and punishes those who violate them through inhumane acts. Section 375 cannot achieve its objective by exempting husbands from punishment since the consequences of rape are the same whether a woman is married or not.
5. By creating two categories based on marital status, the exception of section 375 IPC immunises men from actions committed against their wives.
6. A woman’s dignity is suppressed in the case of spousal rape if it is not criminalised, which would mean less value is placed on her dignity while she is married.
7. It is a crime against humanity. It is the most heinous violation of a women’s bodily integrity.
8. As an unmarried woman, a married woman has the same right to control her body.
9. According to the Supreme Court in State of Karnataka vs Krishnappa (1993), “sexual violence, as well as being humiliated, is an unlawful intrusion into the privacy and sanctity of a woman. Likewise, the court ruled that non-consensual sexual interaction amounts to physical and sexual violence.”
10. In Suchita Srivastava vs Chandigarh Administration (2009), the Supreme Court equated the right to choose a sexual activity with Article 21 (right to personal liberty, privacy, dignity, and bodily integrity).
11. The Supreme Court recognised the right to privacy of all citizens in Justice K.S. Puttuswamy vs Union of India (2017). An important aspect of privacy is decision-making privacy, particularly when it comes to decisions about one’s sexuality, procreation, or intimate relations.
12. In Joseph Shine vs Union of India (2018), Justice Chandrachud posed the question of whether a woman or a man loses sexual autonomy when they marry. I think ‘no’. In addition, he noted that “the right to refuse sex should also exist after marriage.”
13. In all of these decisions, the Supreme Court upheld Article 21 of the Constitution as granting all women the right to abstain from sexual activity, whether or not they are married.
14. Criminalising marital rape gives women basic human rights while also gives them a sense of security against the most heinous crime that can happen inside marriage. They will get the right to say ‘NO’ when they do not want to indulge in sexual intercourse.
15. Most importantly, criminalising marital rape will provide direct legal remedies for seeking justice.
16. Section 9 of the Hindu Marriage Act, 1955 has been challenged in a Public Interest Litigation because it forces estranged spouses to reconcile. By moving to the court and seeking restitution of conjugal rights, a partner who is living apart can force their partner to stay together. In a marriage, this can also be a factor that leads to marital rape.
17. Taking no action against marital rape violates very fundamental rights of women: their right to privacy, their right to protection from exploitation, their right to bodily integrity, and their rights guaranteed by Article 21 and Article 14 of the Indian Constitution.
18. The Kerala High Court in 2021 noted that treating a wife’s body as something owing to the husband and committing a sexual act against her will is nothing but marital rape. The court observed:
- When the husband disregards the autonomy of his wife, and even though this conduct is not illegal, it falls under the definition of physical and mental cruelty.
- Nowadays, in modern social jurisprudence, husband and wife are treated as equal partners in marriage, and the husband has no right to claim any superiority over the wife about her body or personal status.
- Any disrespect or violation of one’s physical integrity is a violation of one’s right to respect their physical and mental integrity.
- Although marital rape does not qualify for criminal recognition under the Penal Code, courts consider it to be cruelty. Accordingly, the court considered marital rape a valid ground for divorce.
J.S Verma Committee Recommendations
The committee discussed exception (2) of section 375 IPC and recommended that this exception must be removed. In the committee’s opinion, the relationship should not be used to justify leniency in such cases of rape. The fact that the victim and the defendant are married is not a defence that can justify rape. The committee recommended that the Criminal Law Amendment Act, 2013, include marital rape as an offence.
8 Arguments Against Criminalising Marital Rape
As a coin has two faces, many people believe that criminalising rape in marriage will be detrimental to Indian society. Here is the list of all arguments against criminalising marital rape:
1. In its submission to the Delhi High Court in January 2022, the Union Government stated that criminalising rape would thwart the marriage institution and become an easier way for harassing spouses.
2. Justice Dipak Misra, the former Chief Justice of India, said that “in my opinion, marital rape should not be regarded as a crime in India, as it will create anarchy in families, and our country relies on its family platform for its success of upholding family values.”
3. A man’s sexual acts with his wife cannot be recorded as evidence in court, as there is no lasting evidence in such a case.
4. In 2016, an Indian official told the Rajya Sabha that the concept of marital rape is international and could not be applied in Indian contexts due to factors such as poverty, illiteracy, social customs, faiths, and sanctity of marriages.
5. Women may feel pressured to report marital rape due to social stigma, child impact, and family shame.
6. On the question that the husband raped his wife, the wife’s testimony is often the only evidence of the rape.
7. There may have been consensual sexual activity between the spouses before the rape, so DNA or semen samples would be irrelevant.
8. Because both the husband and wife would have engaged in sexual relations frequently, it is almost impossible to prove the absence of consent.
Marital Rape – Conclusion
Raped victims are victims of violence, and the fact that the perpetrator and victim are married enhances the severity of such cases. Merely because the accused is husband and victim is wife, the offence of rape cannot be called off and be categorised as forced rape resulting in domestic violence. Individual autonomy is of the utmost prerogative of Article 21. “Rape is rape, be it marital or non-marital, the victim is women only.”