MARITAL RAPE: A LEGAL CRIME

Rape is rape, regardless of the perpetrator's identity or the survivor's age. A woman who is
raped by a stranger, lives with the trauma of the attack; a woman who is raped by her
husband lives with the rapist.

What is marital rape? It is having forced sex with your spouse without their consent. It is an
unjust but unfortunately a common way to degrade and disempower women. Despite the fact
that many legal changes have been made in criminal law to protect women, the non-
criminalization of marital rape in India undermines women's dignity and human rights. Rape
as defined in Section 375 of the Indian Penal Code, 1860 (“IPC”) is any form of sexual
assault that involves non-consensual intercourse with a woman. Exception 2 of the
abovementioned section, however, exempts forced sexual intercourse by a husband with his
wife over the age of fifteen years from the definition of "rape" as given under Section 375,
and so protects such actions from prosecution. After entering into a marriage, a wife is
presumed to give her husband continuous consent to have sexual intercourse with her.

Exception 2 of Section 375, which does not criminalise marital rape, is a flagrant violation of
the Constitution. Despite the fact that the Constitution provides equality to all under Article
14, married women are discriminated against by being denied equal protection from rape and
sexual harassment in the hands of their own spouses. Exception 2 also establishes a
distinction between married females under the age of 15 and those over the age of 15. Such a
classification fails the test of “intelligible differentia,” and thus appears to be in violation of
the Right to Equality guaranteed under Article 14.

The failure to recognise marital rape as a crime stems from the fact that, when the IPC was
drafted in the 1860s, a married woman was not considered a separate legal entity. Rather, she
was regarded as her husband's personal property. Exception 2, which essentially exempts
husbands' actions against their wives from being considered "rape," is heavily influenced and
derived from the pre-existing doctrine of merging the woman's identity with that of her
husband. The British who gave India's penal laws, have since criminalised marital rape
almost 30 years ago in the landmark case of R v R (1991). However, this is still a
controversial issue in India. While almost every other country in the world criminalised
forced sexual contact between husband and wife, India is one of the only thirty-six countries
that has yet to criminalise marital rape.
Rape is a crime against the basic presumptions of human rights, according to the cases of
The State of Karnataka v. Krishnappa (2000) and The Chairman, Railway Board v.
Chandrima Das (2000). Rape is said to be an unlawful interference with a woman's right to
privacy and sanctity, which has been guaranteed in the Constitution under Article 21.

The Supreme Court dismissed a woman's petition in 2015, stating that “law shall not change
for one woman.” The Supreme Court ruled in Arnesh Kumar v State of Bihar (2014) that
criminalising marital rape would result in the collapse of the social and familial institutions.

Sanjashree J Gharat, an Additional Sessions Judge in Mumbai, stated that a woman's

complaint that her husband had engaged in sexual intercourse with her against her will does
not stand up to judicial examination. The judge stated that it cannot be argued that the
accused has committed any illegal act because he is the husband.

“A murderer destroys the physical body of his victim, a rapist degrades the very soul of the
helpless female,” the court had stated in State of Punjab v. Gurmit Singh (1996), expressing
the level of pain endured by a rape survivor.

In India, the notion of marital rape exemplifies what we call "implied consent." Marital
relations between a man and woman in this context implies that both the parties have agreed
to engage in sexual activity, and it cannot be on the contrary. Lawmakers fail to recognise
that a marriage is not a licence for a husband to mercilessly rape his wife without
any consequence. A married woman, like an unmarried woman, has the same power to
govern her own body.

However, times have changed. Husbands and wives now have separate and independent legal
identities under Indian law, and so much jurisprudence in this contemporary age is explicitly
concerned with the protection of women. This concern is reflected in the myriad of statutes
enacted since the turn of the century to protect women from violence and harassment, such as
the 2013 Sexual Harassment of Women at Workplace (Prevention, Prohibition, and
Redressal) Act and the 2005 Protection of Women from Domestic Violence Act.

Justice NK Chandravanshi of the Chhattisgarh High Court recently issued an atrocious ruling
reaffirming that intercourse or any sexual act conducted by a husband is not rape, even if it is
done against the wife's will and by force. The Kerala High Court, on the other hand, took a
different stance and declared marital rape to be a valid reason for obtaining divorce.
The Gujarat High Court ruled in 2018 that a husband's non-consensual intercourse was not
rape. The Delhi High Court ruled the same year that both men and women had the right to
say "no," to their spouse and that marital relations did not imply consent. While one would
assume that the Supreme Court would provide more clarity and stepped into the sexist
cesspool of misogyny by providing women with legal protection, over decades, the Supreme
Court has turned a blind eye and failed miserably to protect women's rights.

The misogyny and patriarchal system play an important role in non- criminalisation of
marital rape. While a woman is treated as her father's property before she marries, she
becomes her husband's property after they marry. A woman is considered as having no
agency, autonomy, or even individuality in this paradigm. She is not allowed to have sex
because she is not married; however, after she is married, she is free to have any sort of sex.
She has no aspirations or desires for herself. Understanding India's stance on marital rape
requires understanding these patriarchal notions. Rape is a matter of honour in our judicial
system. Her honour is restored if she marries off, whether it is to her abuser or to someone
else. A husband is thought to have a right to his wife's body within the confines of marriage.

The UN Committee on the Elimination of Discrimination Against Women (CEDAW)

recommended, to Government of India, in 2013 that marital rape be criminalised. In a
country like ours where a woman is raped every 16 minutes and an Indian married woman is
17 times more likely to experience sexual violence, there is a strong case to be made for the
legalisation of marital rape. Even though the Justice Verma Committee and the 42nd Law
Commission Report have lately advocated for the criminalization of marital rape, the only
relief currently available is the civil remedies outlined in the Domestic Violence Act of 2005.
It is high time for our country's legislature to recognise this legal flaw and bring marital rape
under the purview of rape laws by repealing Section 375, Exception 2 of the IPC. By
repealing this law, women will not only be safer from abusive husbands, but will also be able
to receive the help they need to recover from the trauma of marital rape. They will be able to
save themselves from domestic violence and sexual abuse. Indian women not only have the
right to but also deserve to be treated equally, and an individual's human rights should not be
dismissed by anyone, including their spouse.