Abstract
Marital rape remains one of the most neglected yet pervasive forms of violence against women in India. Despite 32% of married women reporting experiences of physical, emotional, or sexual abuse, and a significant percentage suffering violence within the past year, India continues to retain the exception shielding husbands from prosecution for rape. This paper examines the meaning, impact, and legal position of marital rape in India, highlighting the severe physical and psychological consequences faced by survivors, including PTSD, depression, and suicidal ideation. It critically analyses the historical roots of the marital rape exception under Section 375 IPC and its retention under Section 63 of the Bharatiya Nyaya Sanhita. The study further explores constitutional perspectives emphasising privacy, bodily autonomy, equality, and non-discrimination, supported by landmark judgments of the Supreme Court. While global trends show over 150 countries criminalizing marital rape, India remains among the nations yet to reform. The paper presents arguments both in favour of and against criminalization, referencing recent judicial opinions from Gujarat High Court, Delhi High Court, Allahabad High Court, and Madhya Pradesh High Court. It concludes that criminalizing marital rape is essential for safeguarding women’s rights and dignity, while also stressing the need for safeguards against misuse to ensure a balanced and just legal framework.
Keywords
Marital Rape, section 65 BNS, criminalizing marital rape in India, offences against women.
Introduction
Imagine a society where approximately 32% of married women has faced physical, emotional or sexual violence by their husband, and around 27% of women have suffered at least any one form of violence in past 12 month before conducting the survey, isn’t it shocking? This data was published by National Family Health Survey (2019-2020) [1]
In India crime against women is convoluted and covers various forms of violations which includes dowry, domestic violence, acid attack, etc. but particularly rape is the biggest troubling issue related to violence against women in India.
Background
Marital rape meaning
Rape means non-consensual sexual intercourse by a man with women is considered as rape. While non-consensual sexual intercourse by a man with his wife without the consent of wife is known as marital rape.
While both rape and marital rape are considered as sexual violence against women, rape is punishable offence under section 375 of IPC but still marital rape is topic of discussion that whether it should be criminalized or not.
The foremost reasons behind the issue of marital rape cases is due to male-dominated society. In such cultures the role of women is limited to domestic work, this leads to rise in inequality and violence against women. Traditional in the male dominated society married women were supposed to obey her husband’s instructions and fulfill all his demands without questioning, this was because women’s were financially dependent on their husband. [2]
Impact of marital rape on victims
The victims of marital rape often experience both physical and mental health issues. The survivor of marital rape may suffer post-traumatic stress disorder (PTSD), depression, and sometimes suicidal thoughts. [3]
Legalities of marital rape in India
The struggle to criminalize marital rape has its deep roots, dating back for decades. Back in 20th century Anti-Rape movement had highlighted the women’s autonomy over their bodies including married women’s, which led to reforms in marital rape laws in many countries. Worldwide over 150 countries has criminalized marital rape and recognized it as punishable offence. Yet 32 countries have not criminalized marital rape and India is among them. [4]
In India, section 375 of IPC safeguards women from the offence of rape, but there is exception to this section. This exception was incorporated by British government, according to this exception marital rape is excluded from the definition of rape in India. The exception 2 of section 375 of IPC states that sexual intercourse by husband with her wife without the consent of wife is not considered as rape. [5]
As Indian penal code (IPC) is going to be replaced with Bhartiya nyaya sanhita (BNS), unfortunately exception 2 of section 63 of BNS also retains the same exception of marital rape as prescribe in exception 2 of section 375 of IPC. [6]
Even though there is no law regarding marital rape, still wife can sue her husband under protection of women from domestic violence act 2005. In this act domestic violence is defined as “any act omission or commission or conduct of respondent which harm aggrieved person and includes act like physical and sexual abuse, verbal, emotional and economical abuse”, while this act does not give criminal punishment but civil remedies is available for wife. [7]
Constitutional view on marital rape in India
In a landmark case of 2017 supreme court have declared that right to privacy is constitutional right and emphasize to many key decisions on women’s bodily autonomy and sexuality as a part of right to privacy. Further on court stated that right to live with dignity also include right to autonomy, which means a person has right to make decisions about his own life without any instructions. This specifically highlighted to protection of person’s sexuality, sexual orientation and identification of gender as a fundamental part of their intimate life choice. [8]
Also article 14 of Indian constitution provides the right to equality before law and right to equal protection of law within the territory of India and article 15 of Indian constitution restrict the discrimination on the basis of religion, race, cast, sex and place of birth. The question whether not criminalizing marital rape in India is contradictory to article 14 and 15 of Indian constitution depends on legal interpretation and ongoing debates in India.
Views in favor of criminalizing marital rape in India
Chief Justice of India DY Chandarchud had made a comment during supreme court’s decision over IPC Section 497 which criminalizes adultery he stated that “man is not the ‘owner of his wife’s sexuality”. [9]
In the landmark judgment of Medical Termination of Pregnancy act, a bench of justice D.Y. Chandarchud, J.B. Pardiwala and A.S. Bopanna, supreme court has clearly stated that “The artificial distinction between married and unmarried women cannot be sustained” [10]
In this case supreme court stated that regardless of the marital status of women, she is entitling to the right to abortion up to 24 week of pregnancy under MTP act, court also stated that that any discrimination on the basis of marital status of women is unconstitutional. Further on court said that in the context of MTP ACT, definition of rape must include marital rape. This means that married women can also seek abortion on the basis of marital rape. This verdict of supreme court can be seen as positive step toward criminalizing marital rape in India. [11]
However, on December 2023 Gujrat High court has firmly stated that “rape is rape even it is committed by husband against his wife.” While responding to the argument that according to exception 2 of section 376 of IPC that husband is not liable to the allegations of rape made by his wife Justice Joshi cited the global stand of 50 American states, New Zealand, Canada, and many Europeans countries has criminalized marital rape.
He has also made a comment that A man is man, an act is act, rape is rape, be it performed by a man, the husband, on the women, wife.
Although the legal reach of this judgment is limited to Gujrat, but still this is a positive step to solve the issue of marital rape. [12]
By criminalizing the marital rape, it will reduce violence against women and will give a prominent message that sexual violence regardless the marital status of victim is punishable under the law.
Views in opposition of criminalizing marital rape in India
On May 11 2022, the Delhi high court delivered a split verdict on petition filed by an NGO RTI Foundation with other parties on the exception on marital rape, which does not give clarity on legality of marital rape. Later on in 2022 Dalit activist Ruth Manorama also joined the fight against marital rape by filing new petition. In march 2023, supreme court bench consists of chief justice D.Y. Chandarchud and justice P.S. Narasimha heard arguments on these petition regarding criminalizing marital rape in India. [13]
In 2023 case Allahabad High court has given its verdict that husband cannot be sued for marital rape with her wife. However, this judgment was criticized. [14]
Recently, Madhya Pradesh High court has given a verdict that, husband having unnatural sex with his legally wedded wife without her consent is not considered as marital rape. Since they are married the consent of wife doesn’t matter because of her marital status. The high court of Madhya Pradesh dismissed the wife’s allegation based on this legal interpretation. [15]
Conclusion
In conclusion validating any such law is crucial step taken towards the protecting women from marital rape. It should be borne in mind that “Marriage is not license for rape”. Moreover, it is equally necessary that any such law should not be misused by any one.
On the other hands there are some concerns regarding criminalizing the marital rape in India. It is quite possible that after criminalizing marital rape some women might exploit it by falsely accusing their husbands. Therefore, if any law enacts regarding criminalizing marital rape, it is crucial to safeguard the issue of misuse of such act.
References
1] https://timesofindia.indiatimes.com/india/nearly-1-in-3-women-have-suffered-spousal-sexual-physical-violence-family-health-survey/articleshow/91491367.cms
2] https://infinitylearn.com/surge/english/social/marital-rape/#:~:text=Reasons%20for%20Marital%20Rape,-The%20reasons%20of&text=Thus%2C%20in%20essence%2C%20the%20main,rights%20in%20any%20which%20way.
3] https://journals.plos.org/globalpublichealth/article?id=10.1371/journal.pgph.0000601
4] https://www.outlookindia.com/national/sc-observations-welcome-but-omarital-rape-still-not-illegal-in-india-here-are-countries-where-it-is-news-226913
5] https://www.indiacode.nic.in/bitstream/123456789/2263/1/aA1860-45.pdf
6] https://prsindia.org/files/bills_acts/bills_parliament/2023/Bharatiya_Nyaya_Sanhita,_2023.pdf
7] https://360info.org/womens-rights-in-the-balance-as-india-weighs-criminalising-marital-rape/#:~:text=Marital%20rape%20already%20has%20civil,the%20ground%20of%20'cruelty'.
8] https://ohrh.law.ox.ac.uk/the-indian-supreme-court-declares-the-constitutional-right-to-privacy/
9] https://theprint.in/india/chandrachud-called-for-taking-womans-point-of-view-in-court-some-indians-cant-digest-it/1180706/
10] https://thediplomat.com/2022/09/indias-supreme-court-gives-equal-abortion-access-to-all-women/#:~:text=But%20the%20changes%20did%20not,Chandrachud%20said.
11] https://www.outlookindia.com/national/sc-observations-welcome-but-omarital-rape-still-not-illegal-in-india-here-are-countries-where-it-is-news-226913
12] https://timesofindia.indiatimes.com/city/ahmedabad/gujarat-high-court-rape-is-rape-even-if-committed-by-husband/articleshow/106105797.cms
13] https://www.scobserver.in/cases/challenge-to-the-marital-rape-exception/#:~:text=Both%20Judges%20granted%20permission%20to,challenging%20the%20marital%20rape%20exception.
14] https://www.livelaw.in/high-court/allahabad-high-court/allahabad-high-court-marital-rape-no-offence-wife-18-madhya-pradesh-high-court-husband-377-ipc-unnatural-sex-244095
15] https://www.news18.com/india/unnatural-sex-with-wife-not-rape-absence-of-womans-consent-immaterial-mp-high-court-8877462.html