Is the legal status of marital rape in

India violative of fundamental rights?

Vritika Patel (B047) and Aangi Sanghvi (B051)

Introduction
● In India, the notion of marital rape is the pinnacle of "implied consent” and it exists de
facto but not de jure.
● After entering into marital relations, a woman is believed to give her husband eternal
consent to have sexual inercourse with her.
● India is one of the thirty-six countries that has yet to prosecute marital rape.
● The non-criminalization of marital rape dates back to the British era. A married woman
was not regarded as a separate legal entity when the IPC was created in the 1860s.
● The marital exemption to the IPC's definition of rape was designed on the basis of
Victorian patriarchal traditions that did not acknowledge men and women as equal and
blended husband and wife identities under the "Doctrine of Coverture."
Laws gaurding marital rape
● Rape is defined under Section 375 of the Indian Penal Code [IPC] as any type of
sexual assault that involves non-consensual contact with a woman.
● Exception 2 to Section 375, on the other hand, exempts forced sexual intercourse if
the wife is above the age of 15.
● As per this section the rapist should be punished with imprisonment of either form
for a length of no less than 7 years but might extend for life, or for a term of up to
10 years, as well as a fine.
● However, if the woman raped is his own spouse and is not under the age of 12, he
may be rebuked with detention for a duration of up to two years with fine or both.
In regards with the Indian Constitution
● Violation of Article 14:
- Article 14 guarantees equality before the law and equal treatment under the law.
- Exception 2 to Section 375 discriminated between married and unmarried women, infringing on Article 14
of the Constitution.
- The law clearly distinguishes between married women beyond the age of 15 and married women under the
age of 15.
- As a result, the categorization is gratuitous, illogical, and breaches Article 14's objective.
● Violation of Article 21:
- According to Article 21, no individual shall be deprived his life and personal liberty except in line with the
guidelines prescribed by law.
- In recent years, courts have begun to recognise a right to refrain from sexual intercourse and to be free of
unwelcome sexual behaviour as part of the wider rights to life and personal liberty.
- The Supreme Court ruled in The State of Karnataka v. Krishnappa that sexual assault, besides being a
demeaning act, is an unconstitutional incursion into a woman's right to privacy and sanctity.
- In the same decision, it was determined that non-consensual sexual intercourse constitutes bodily and sexual
violence.
● Right to live with human dignity:
- Another essential aim of Article 21 is to ensure that everyone has the right to live with dignity.

- The "right to life" envisioned in Article 21 is more than just a right to exist.
- In this sense, the courts have frequently ruled that the "right to life" includes the right to live with dignity.

● Section 375 of the Indian Penal Code:

- Section 375 of the IPC's objective is to protect women and punish those who indulge in the barbaric act of

rape.

- Exempting spouses from punishment, is completely contradictory to that purpose, because the penalties of

rape are the same whether a woman is married or single.

- Furthermore, because they are legally and financially bound to their spouses, married women may find it

more difficult to flee violent situations at home.

Criminalization of marital rape

Arguments for Criminalization:

- Criminalising marital rape serves to recognise rape in marriage as a criminal offence and
works as a deterrent to potential rapist spouses.
- Proving a claim of rape in marriage is difficult enough, but proving a manufactured
accusation is considerably more difficult.
- A marriage is already doomed when the husband rapes his wife. It may be a wrong objective
of law to withhold justice and deny equal protection in the name of sustaining marriages.
- According to a research performed by the Joint Women Programme, one out of every seven
married women has been raped at least once by their husband. They don't report these rapes
since the law forbids it.
Arguments against Criminalization

- Due to the near-impossibility of establishing marital rape, criminalising it would just

add to the already overcrowded judicial system's burden.
- Dissatisfied, enraged, and spiteful women may accuse their innocent husbands of
marital rape.
- When a woman marries a man, there is an implicit permission to have sexual relations.
- Many marriages would be destroyed if laws against marital rape were enacted, since
they would hinder any conceivable reconciliation.
Marital Rape scenario today
● A batch of petitions have challenged the second exception to Section 375 of the Indian Penal
Code. The bench consists of Justices Rajiv Shakdher and C Hari Shankar. The petitioners
include RIT Foundation, All India Democratic Womens Association (AIDWA) and a marital
rape survivor.
● This marital rape exception is being chalenged on the basis that it vioates a married women’s
fundamental rights of the Constitution.
● The Arguments made by the standing counsel for the Delhi government claimed that women
have other legal provisions in the case that they are forced to have non-consensual sex by their
husbands. They further explained that since a woman can file for divorce on grounds of cruelty
and file a criminal case for cruelty under Section 498A of the IPC, the argument cannot be
made that the marital rape exception violates the fundamental rights of a married woman.
Continued..
● The Delhi High Court Judge’s comments suggest that they are divided on the verdict of
the case. Justice Rajiv Shakdher claims that the relationship of a man and woman does
not determine whether or not a sexual act can be considered rape - consent should be the
determining factor.
● The case is still ongoing and the Centre is waiting for responses from all the States.
● Recently the Delhi High Court heard the plea on marital rape, “#MarriageStrike'' has
been trending on Twitter. Many men claim that Section 375 will be misused by women to
file false rape cases against them if the exception is removed. These are those men who
know it is impossible for them to treat their wives with basic human decency.
Suggestions
● In 2013 the Indian government was urged by the UN Committee on the Elimination of
Discrimination Against Women (CEDAW) to criminalize marital rape.
● The same was proposed by the JS Verma committee, which was formed in the aftermath
of widespread demonstrations over the December 16, 2012 gang rape case.
● Marital rape should be criminalised under the Indian Penal Code, 1860, and section 375
should be changed to include specific circumstances to prevent its misuse.
● The punishment for marial rape should be equal to the sentencing for rape under Section
376 of the IPC and the martial status of a woman should not be used to reduce the
punishment.
● Under all personal laws, marital rape should be regarded one of the primary reasons for
divorce.
Conclusion
● Rape is a breach of the victim's most valued fundamental right, the right to life, as established in Article
21 of the Constitution. However, it contradicts this declaration by failing to recognise marital rape.
● It is 2020 and India is still debating about criminalising marital rape. Though there have been some
advancements in Indian domestic violence laws, they have mostly been limited to physical rather than
sexual assault.
● Marriages do not protect women from abuse or coercion. Believing this leads to women themselves
believing that abuse in a marriage is acceptable because it is happening at the hands of her supposed
protector.
● The urgent requirement is for the Indian Penal Code to make marital rape a crime. However, just
declaring a behaviour to be illegal is insufficient. More has to be done to raise awareness among the courts
and the police.
● There is also a need to educate the general public about this crime, since the true goal of criminalising
marital rape can only be realised if society recognises and opposes the prevalent misconception that rape
by one's husband is unimportant.
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