Marriage between a man and a woman in India implies consent to sexual intercourse even though many times a woman or in some cases, a man is not willing to engage in sexual intercourse. In our country, if a woman is married and is not willing to have sexual intercourse with her husband she is forced to engage in it only for the reason that she is obligated to do so as she is married to him. However, in India, a number of cases go unreported since the same non-consensual act is not termed as rape under any law whatsoever.
Rape is considered one of the most heinous crimes all over the world wherein a man has sexual intercourse with a woman against her will and without her consent. However, in India, such a non-consensual act committed by the husband on his wife, wherein the wife is unwilling to give her consent to the same is ignored by the law and is not considered to be a crime. Also, there is no legal recourse for the wife for the same and the wife has to accept her fate without any help from the State. A lot of countries have criminalized marital rape and yet India continues to be one of the 36 countries where marital rape is decriminalized.
A married woman should have the same rights as an unmarried woman which includes having control of her own body. Just because she is married she should not be forced into having sexual intercourse with/by her husband. Moreover, not criminalizing such an act where a woman is forced to have sexual intercourse with her husband, against her will, only implies that it is legal to commit rape in India as long as one is married.
There is no legal definition of the term marital rape. In a common man’s language marital rape or spousal rape is simply defined as the act of sexual intercourse with one’s spouse without their consent. It is also considered a form of domestic violence as well as sexual abuse. In the earlier times sexual intercourse within marriage was considered to be a part of the marriage and the husband had the right to do so without the consent of his wife. However, in the present times, it has been classified as rape by many societies around the world including a lot of countries that have criminalized marital rape. Countries like New Zealand, Greece, Argentina, Ecuador and many more have criminalized marital rape where it is illegal to have sexual intercourse with your spouse without her consent. In the above-mentioned countries necessary laws have been implemented that consider marital rape as a crime and provide punishment for the same. However, marriages in India are a way to get the consent of a woman to perform sexual intercourse. Once a woman is married she becomes the property of the husband and irrespective of the fact whether she is willing to engage in sexual intercourse or not, if she is a wife she will always be available.
Laws Relating to Rape in India
1. Section 375 of the Indian Penal Code – This section provides the definition of rape and lays down the provisions related to the same. It states that a man is said to have committed rape if he has sexual intercourse with a woman without her consent or by obtaining her consent by putting her under pressure or obtaining the consent of a woman by toxication or by reason of unsoundness of mind. It also states that the consent of a woman below the age of 16 years does not matter as having sexual intercourse with a woman below the said age with or without her consent shall be considered rape. This section also contains an exception clause which state that sexual intercourse by a man with his own wife, who is not below the age of 15 years, is not rape.
2. Section 376 of the Indian Penal Code – This section contains provisions relating to punishment for rape. It states that whoever commits rape shall be imprisoned for a term which shall not be less than seven years or which may be for life or for a term which may extend to 10 years and shall also be liable to fine unless the woman raped is his own wife and is not under the age of 12 years he shall be punished with imprisonment for either a term which may extend to two years or with fine or with both.
3. Section 377 of the Indian Penal Code – This section contains provisions relating to unnatural offences. It states that whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Why Marital Rape is not recognized as “Rape” under the Indian Regime?
The exception clause in the above-mentioned Section 375 of the Indian Penal Code implies that it is legal for men to rape women who happen to be their wives who are aged 15 years or above. This exception clause exempts sexual intercourse with a wife without wilful consent, from the definition of rape, thus making it legal for men to rape women. It is noteworthy to mention that most countries recognize rape as rape, including marital rape which is criminalized in most countries, however, India continues to be one of those countries where Marital rape is not considered to be rape and is decriminalized. The Indian government has time and again argued that criminalizing marital rape in India is against the Indian culture as the majority of people in India are illiterate, uneducated, poor, conservative, and religious. They believe that the mindset of society is to treat marriage as a sacrament and that a husband cannot rape his wife because a good Indian wife gives her consent for almost everything when she is married. Secondly, the fact that makes it legal for Indian men to continue to rape their wives is that once a woman is married her perpetual consent is implied, she hands over continuous sexual consent and control over her body to her husband and continues to engage in sexual intercourse even if it is against her will. The perception of society that a good Indian wife must obey and do whatever her husband expects out of her, including engaging in sexual intercourse, makes it legal for men to rape their wives. Therefore, the existing laws and the general perception of the society on marriage implies that it is legal to commit rape in India as long as a man is married to that woman.
Decriminalizing Marital Rape violates the fundamental rights outshined in the Indian Constitution
In our country, Marital rape continues to be decriminalized which leads to violation of the fundamental rights of a person/woman under the Indian Constitution.
1. Article 14, Equality before the law – Under this Article, the Indian Constitution guarantees equality before the law or equal protection of laws to any person. However, the rape law exception that states sexual intercourse by a man with his own wife who is below the age of 15 years, does not amount to rape, discriminates against females who have been and continue to be raped by their own husbands by denying them equal protection from rape and sexual harassment.
2. Article 21, Protection of Life and Personal Liberty – The exception laid down under section 375 of IPC prioritizes and protects only unmarried women from rape which directly contradicts guaranteed equal protection of laws. Exception 2 is also a violation of Article 21 of the Indian Constitution which states “No person shall be denied of his life and personal liberty except according to the procedure established by law”. In recent years, the Supreme Court has interpreted Article 21 to extend beyond the literal guarantee to life and personal liberty and to include the rights to health, privacy, dignity, safe living conditions, a safe environment, and continuous internet among others.
In Independent Thought vs Union Of India on 11 October 2017, the Supreme Court extended the age limit specified in Section 375 of IPC from 15 years to 18 years stating that Exception 2 to Section 375 of IPC so far as it relates to a girl child below 18 years is liable to be struck down as it is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and therefore, violative of Article 14, 15 and 21 of the Constitution of India.
In Suchita Srivastava & Anr vs Chandigarh Administration on 28 August 2009, said the right to make choices about sexual activity is very much within the scope of rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.
In Justice K.S.Puttaswamy(Retd) vs Union Of India on 26 September 2018, the Supreme Court recognized the right to privacy as a fundamental right and specifically stated that it includes “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.” Forced sexual intercourse and cohabitation is a violation of that fundamental right. Since this ruling doesn’t differentiate between married and unmarried women and there is no explicit ruling (thankfully) that says women lose their fundamental right to privacy upon marriage — all women have the fundamental right to be able to consent and to be able to say no.
Need to Criminalise Marital Rape in India
As mentioned earlier, the exception clause of Section 375 of IPC only protects a woman (now) below the age of 18 years from having unwilling sexual intercourse with her husband and fails to protect married women above the specified age. It is extremely important to criminalize marital rape in India because the existing laws only protect unmarried women against rape and exclude married women from the same. Every woman whether married or unmarried has the right to have control over her own body and just because a woman is married should not imply that she will be ready to have sexual intercourse with her husband whenever he wants to or against her will. As previously mentioned, marital rape has been criminalized in a lot of countries but India continues to be one of those 26 countries that do not consider marital rape to be a criminal offense. In our country, people sympathize with a victim of rape because it is such a heinous crime, however, when it comes to marital rape the general perception of society is that she is a wife and it is her duty to listen to her husband and maintain a sexual relationship with him for the smooth running of the marriage. People fail to recognize how hard it might be for all those women who are suffering in silence only because they are forced to engage in sexual intercourse against their will only because they are married to someone. It is extremely important to criminalize marital rape because just because a woman is someone’s wife it does not mean that she will be available 24 x 7.
In Nimeshbhai Bharatbhai Desai vs State Of Gujarat on 2 April 2018, the Gujarat High Court held that the exemption given to marital rape stems from a long outdated notion of marriage which regarded wives as nothing more than the property of their husbands and that marital rape ought to be a crime and not a concept. It was further held that there would most definitely be objections such as a perceived threat to the integrity of the marital union and the possibility of the misuse of the penal provisions. It is not really true that the private or domestic domain has always been outside the purview of law. The law against domestic violence already covers both physical and sexual abuse as grounds for the legal system to intervene. It is difficult to argue that a complaint of marital rape will ruin a marriage, while a complaint of domestic violence against a spouse will not. It has long been time to jettison the notion of ‘implied consent’ in marriage. The law must uphold the bodily autonomy of all women, irrespective of their marital status. The Gujarat High Court further stated that a law that does not give married and unmarried women equal protection creates conditions that lead to marital rape. It allows the men and women to believe that wife rape is acceptable. Making wife rape illegal or an offense will remove the destructive attitudes that promote marital rape. Such an action raises a moral boundary that informs society that a punishment results if the boundary is transgressed. The Husbands may then begin to recognize that marital rape is wrong. Recognition coupled with the criminal punishment should deter the husbands from raping their wives. Women should not have to tolerate rape and violence in the marriage. The total statutory abolition of the marital rape exemption is the first necessary step in teaching societies that dehumanized treatment of women will not be tolerated and that marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalized.
Marital rape is legal in the Indian regime despite being criminalized in various countries. The least that has been done in favor of married women is the amendment made in Exception 2 of section 375 wherein the Supreme Court extended the age of a married woman from 15 years or below to 18 years or below. This was only a small step towards striking down the legislation of marital rape and it is high time now that the legislature should bring marital rape under the purview of rape laws by eliminating the exception clause in section 375 of IPC. By eliminating the said exception, women will be protected from their abusive spouses, will be able to receive the help needed to recover from marital rape, and can save themselves from domestic and sexual abuse.
In our country either the perpetrators of rape roam free or they will be punished years later. That is what exactly happened in the 2012 Delhi Gang Rape case. The parents of the deceased victim got justice after eight long years. If this is the scenario with the most brutal rape case of all time, how can we expect that our legislature will ever consider criminalizing marital rape? Rape is rape, irrespective of the identity of the perpetrator or the age of the victim. A woman who is raped by a stranger continues to live with the memory of a horrible attack and a woman who is raped by her husband, continues to live with a rapist. Every woman deserves to be treated equally and their human rights do not deserve to be infringed by anyone, including their spouse or husband. Therefore, it is necessary and extremely important to make marital rape illegal in our country so that rapist husbands be punished and the wives do not continue to suffer in silence.
