Everlasting debate on the legalization of Marital Rape in India

Introduction:
Rape is a heinous crime that not only damages the aggrieved person physically but leaves a trauma for
life. It is defined under section 375 of the Indian Penal Code. But Marital Rape has been made an
exception to that. The Exception 2 to Section 375 states that non- consensual sexual intercourse by a man
with his own wife, if she is over fifteen years, does not amount to rape. It’s 2021 and India stands in the
line of one of the 36 countries which have not criminalized marital rape yet. A woman raped by her
husband cannot do anything about it and has to live with him and face the violence.
The exception to this legislation leaves the “consent” behind and emphasis is laid only on the fact that the
aggrieved woman is the wife of the man who has raped her and only on the basis of the marriage, law has
assumed that there is an “implied consent” on the part of the wife. The law has been made in such a way
that it has given a presumption that wife has given irrevocable consent to her husband for sexual
intercourse. Marital rape is rape and this vague concept of “implied consent” doesn’t change the fact. The
relationship of the perpetrator with the victim doesn’t change the fact that rape has been committed.
Regardless of the perpetrator’s identity or the victim’s age, the fact that it was a rape does not change. 1
In 2018, the Union Health Ministry released the National Health Family Survey over 83% women
reported that their current husbands are the perpetrators out of which some of them reported that they
were forced to do certain sexual acts against their will. Some women also reported that they were
threatened by their husband to perform certain sexual acts.2 This shows how serious the problem of
legalization of marital rape is and how urgent it needs to be addressed by the law authorities.
Problems with the non-legislation:
Violative of Article 14: Article 14 of the Indian Constitution states that, “The State shall not deny to any
person equality before the law or the equal protection of the laws within the territory of India Prohibition
of discrimination on grounds of religion, race, caste, sex or place of birth.” 3. Non criminalization of the
marital rape is a straight violation one of the doctrines related to this article called “Doctrine of
Reasonable Classification”. Exception 2 to section 375 of the IPC classifies women into 2 groups: wives
below 15 years of age and above 15 years of age. The classification in article 14 should have a nexus to
the object that is to be sought by the legislation in question. It is clear that section 375 has been framed to
protect the body and dignity of a women and such classification does not create a nexus to the object that
is sought to be achieved.
Violative of Article 21: Article 21 of the Indian Constitution states that, “No person shall be denied of his
life and personal liberty except according to the procedure established by law”. The fact that husband
being the rapist, who lives with the wife all the time and is a continuous threat to her personal liberty
shows that the exception is violative of this right. In past, this article has been interpreted many times,

1
Astha Bhattacharya, Supreme Court recognises sexual right of all women. So how is marital rape still legal?, THE
PRINT ( Sept. 1, 2021 , 11:12 AM ).
2
Neetu Chandra Sharma, Marital Rape: Survey takes lid off sexual violence by husbands, MINT ( Jan. 15, 2018, 1:29
AM), https://www.livemint.com/Politics/2On0uNbW6ufrjabfKZwPnM/Marital-rape-Survey-takes-lid-off-sexual-
violence-by-husban.html
3
INDIA CONST. art. 14.
leading to inclusion of various other rights under right to life like right to health, dignity, safe
environment, sexual privacy, human dignity, etc.

Rationale:
Following are the reasons given to advocate the non-criminalization of marital rapes,
1. Dogmatic Society: First reason is that there is old mentality that anything happening between the
husband and the wife within the walls of the house is not the matter to be concerned about by the society
or the government. Criminalizing marital rape would mean that the state is entering the fine line between
home and society.
2. Marriage and Implied Consent: The second reason is the concept of “implied consent” that has been
glued with the marriage which gives an unlimited right to the husband to exploit the body of the wife.
While the matrimonial bond is tied, it is assumed that the consent of sexual relationship is given to the
husband.
3. Culture: The supporters of marital rape also argue that it is against the Indian Culture because it is a
general notion of the people of India that a husband cannot rape his wife because a good Indian wife will
willfully consent to her husband forever. 4
4. Illiteracy: Illiteracy among the people is also one of the reasons. When women face such violence, they
are usually ignorant of the remedies they can seek. They are even ignorant of the fact that their rights are
being violated. There is no remedy for marital rape in IPC. Husband think that there is no wrong in
having sexual intercourse with wife even when there is no consent.

Pleas That Sought Criminalization of Marital Rape:

Several petitions to criminalize marital rape have been filed in various courts across the country.
Regrettably, none of them has yet experienced the rewards.
The Supreme Court dismissed a woman's petition in 2015, stating that "law shall not change for one
lady." The Supreme Court ruled in Arnesh Kumar v State of Bihar that criminalizing marital rape would
result in the "collapse of the social and familial institutions."
In January 2015, the NGO RIT Foundation and the All-India Democratic Women's Association filed a
petition in the Delhi High Court, asking for the criminalization of marital rape. The PIL was nearly over –
both sides had wrapped up their arguments – when the COVID-19 pandemic struck, disrupting the courts'
ability to function.
In a separate case before the Delhi High Court, the court refused a plea to make marital rape a crime,
stating that the legislature, not the court, is responsible for drafting the legislation, and that the court is
more concerned with the interpretation of the law than its drafting. This rationale was disappointing,
especially in light of the Supreme Court's unambiguous ruling in K.S. Puttuswamy vs. Union of India,

4
Pallavi Prasad, Why It’s Still Legal For Indian Men to Rape Their Wives, THE SWADDLE (Jan. 20),
https://theswaddle.com/marital-rape-inda-decriminalized-crime/
which said that an individual's privacy is a fundamental aspect of dignity and that rape is a breach of a
woman's right to bodily integrity and dignity.

How India Sees Marital Rape:

In India, rape is viewed as a "harm to her family's honor" rather than an injury to a woman's individuality.
In the eyes of courts and society, women are seen as properties – and marriage is seen as a means to
“right all wrongs.” Courts see rape as something that does not happen to married women. Rape is about
honor in our courts. Her honor is restored if she marries off, whether 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 state or the
judiciary are unlikely to take up the problem of marital rape anytime soon. Both the elected government
and the court have the goal of "protecting" the institution of marriage rather than "protecting" women.

Conclusion and Recourse:

In India, marital rape is not completely criminalized. It is unquestionably a genuine form of mistreatment
of women that merits the attention of the authorities. Women who have been raped by their spouses are
more vulnerable to a variety of attacks and frequently face long-term physical and emotional problems. In
this case, marital rape is far more terrifying for a woman because she must remain with her perpetrator on
a regular basis. Because the consequences of marital rape are so severe, criminalizing the crime of marital
rape is clearly necessary. Survivors of marital rape are rarely willing to prosecute the perpetrator. When
they do, however, Indian legislation such as the Domestic Violence Act and Section 498A take notice.
The Protection of Women from Domestic Violence Act of 2005 is the most common remedy employed
by women. This Act recognizes that coerced sexual conduct is illegal in India. However, a magistrate, has
no legal authority to criminalize a man rapping his wife, nor can the guy be sentenced.
Thus, civil laws under the Protection of Women from Domestic Violence Act or Section 498-A of the
IPC on cruelty towards a wife by a husband or a husband's family are currently married women's only
recourse against non-consensual sex in India. Several countries throughout the world are enacting strict
anti-marital rape legislation and recognizing it as a criminal offence. Countries such as Denmark,
Sweden, Poland, Norway, and the Czech Republic have already criminalized marital rape, while others
are still battling to make it a crime due to the complexities of such a move, as well as the potential
negative consequences for marital relationships and the repercussions of false accusations. Most
proponents of present rules on marital rape argue that criminalizing the act will give women an unfair
advantage, resulting in a high number of false allegations being filed against males. However, it cannot be
argued that India's current rape statute, which exempts the husband, is completely in violation of Articles
14 and 21 of the Indian Constitution. Marital rape is not only discriminatory, but it also infringes on a
wife's right to a dignified existence. When a woman marries, she never relinquishes her fundamental
rights. Thus, any law which contravenes the provisions highlighted under the Constitution needs to be
abolished completely. Positive legal change for women is occurring in India, but additional steps are
required to achieve both legal and social reform, which would result in the criminalization of marital rape
and a shift in attitudes toward women in marriage. The Protection of Women from Domestic Violence
Act contains numerous flaws, as it does not expressly prohibit marital rape. On the plus side, the
legalization of a specific law against domestic violence has paved the path for a law criminalizing marital
rape. This definitely reflects a shift in state ideology, which previously valued non-interference in familial
circles.