Marital rape is a persisting issue in our country. While some people acknowledge this as an issue, others don’t see it as an issue at all. It is a deep rooted assumption that a man has a right to have sexual intercourse with his wife even if its is without her consent.
India has not recognized marital rape as an offence specifically, nor does it define marital rape under any legal provision. The definition of rape under section 375 of the Indian Penal Code, exempts a husband of rape unless the wife is below the age of fifteen. The Supreme Court in its latest judgment has modified the age limit of the wife from fifteen to eighteen.1 Post the Delhi Gang rape case, amendments were made through the Criminal Law (Amendment) Act, 2013 mostly based on the recommendations of Justice Verma Committee Report. But no amendment was made in regard to marital rape, even though the above-mentioned report recommended criminalization of marital rape. Therefore as of today, a husband can have non-consensual sex with his wife as long as she is not a minor. India criminalizes non-consensual sex between judicially separated partners.
The issue of marital rape is raised before the Delhi High Court in the case of RIT Foundation v. Union of India. The petitioners contended that exception 2 to the definition of rape under section 375 of the Indian Penal Code is unconstitutional, as it differentiated between married and a non-married woman who are sexually assaulted. They sought the striking down of exception 2 of section 375. The Government opposed this contention on various grounds, stating that criminalizing marital rape would lead to the break down of the institution of marriage and there are chances of the law being misused and husbands will be unnecessarily harassed. They further argued that, the offence of marital rape has already been addressed under section 498A of the Indian Penal Code, which criminalizes domestic violence, which includes both physical and mental, by the husband and his family against the woman. Therefore any victim of marital rape can seek remedy under section 498A.
Section 498A no doubt protects women from domestic violence, whether its physical or mental and rape definitely violates a woman’s body. But it is important to note here that rape is just not violation of a woman’s body but it also a violation of her dignity and her right to consent or not consent to sexual intercourse.
Consent is the most vital element in any form of sexual interaction, therefore in a sexual interaction or intercourse between husband and wife, consent is a vital element. Even though both the partners willfully entered into the marriage, this does not mean that there is an implied consent for all sexual intercourse between the partners.
Also in order to protect the institution of marriage, personal right of individuals cannot be ignored or neglected. Justice Chandrachud rightly stated that:2
“patriarchal notions are used as a shield to violate core constitutional rights of women based on gender and autonomy”. In the case of People v. Liberta,3 the New York Court of Appeal stated that: “a state arguably has no interest in protecting marital privacy or promoting marital reconciliation where a marriage involves domestic violence and where the marriage has decayed to a point where the sexual relations of the spouses are no longer consensual and sexual abuse has occurred.”
To address the argument that criminalization of marital rape would be misused by women only to harass their husbands, is flawed as it is based on the assumption that all women make false accusations against their husbands to harass them. Relying on such assumptions would deny justice to those women who are victims of this act.
Various International instruments including Convention On The Elimination Of All Forms Of Discrimination Against Women (CEDAW), condemn marital rape and state that it’s the state’s obligation to protect women’s rights within the institution of marriage. India is also a signatory to CEDAW.
As mentioned earlier, the Supreme Court in it recent judgment in the case of Independent Thought v. Union of India, looked into the issue of marital rape with respect to minors and the Court held that non-consensual sex with a minor wife under the age of 18 come under the definition of rape under section 375 of the Indian Penal Code. Although this case did not look into marital rape of women above the age of 18, the discussions in this case will be relevant to address the issue of marital rape.
1 Independent Thought v. Union of India, W.P. (Civil) No. 382 of 2013, decided on October 11, 2017
2 Justice K.S. Puttaswamy (Retd.) vs Union of India