By Saloni Pradhan & Shiv Chhatrala
Saloni and Shiv are currently in the third year of their Bachelors in Media studies, Economics and Political Science at Christ University, Bangalore.
Roots, Rights and Legal Row
In 17th Century England, Sir Matthew Hale developed the contractual consent theory wherein he posited,
“the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract, the wife has given up herself this kind unto her husband which she cannot retract.”
No matter how distant in time this quote may appear, we are living it as reality even today. In signing a marriage certificate the spouse doesn’t hand their right to bodily autonomy to their partner. Each partner in the relationship has the right to their privacy and independence. Article 14 affords every person equality in gender. Neither the husband nor the wife can assert dominance or authority over the other. They are both equals in a marriage.
Section 9 of the Hindu Marriage Act 1955,[i] ‘Restitution of Conjugal Rights’, states that should a spouse withdraw from the society of the other without any reasonable reason, the aggrieved party may apply and be granted ‘restitution of conjugal rights’, should their grounds be found satisfactory. However, the constitutionality of this section was challenged before the Andhra Pradesh High Court in T. Sareetha v. T. Venkata Subbaiah 1983 [ii]. In the case, the court ruled in favour of T. Sareeta, stating that Restitution of conjugal rights is an unconstitutional remedy, as it isolates Articles 14, 19, and 21 of the fundamental rights
Article 21 grants the right to life and personal liberty to all alike. When either of the spouses has chosen to withdraw from the society of the other, out of their own free will, the courts are then infringing on the person’s right to personal liberty.
The question often posed against the criminalisation of marital rape is, how far can the courts go to exercise its jurisdiction in the private sphere of marriage? Although, in the past, the Indian courts have done just that, with the ‘Restitution of conjugal rights’, a provision of the Hindu Marriage Act.
Currently, the situation remains akin to 17th Century England where the wife is supposed to stay in marriage despite the violation of her fundamental rights. So far, 150 countries have criminalised marital rape, some as early as 1922, for instance, the former Soviet Union. The criminalisation is premised on the basic argument that while in marriage the spouse has the right to have sex with his/her partner, that right cannot be imposed by force, coercion or abuse of authority.
India is one of the 36 countries that is still debating the court’s jurisdiction. In the Indian legal system till 2017, there was an exemption stating that sexual intercourse by a man with his own wife is not a criminal offence if the wife is above the age of 15. This provision came into conflict with the Protection of Children from Sexual Offenses Act (POCSO) and the Child Marriage Act 2006. Later, in 2017, the Indian judiciary criminalized sexual intercourse with girl child below the age of 18.[iii] The apex court further stated that sex with minor wife, despite consent, is rape.[iv] It is only obsolete that this hasn’t been the case for women above 18 years of age.
When a man forces himself or inflicts sexual violence or non-consensual sex upon his wife, why must it not be considered rape?
The current law in India concerning marital rape is in a sorry state. Section 375 of the Indian Penal code (IPC) states (state amendment), ‘sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape’. While the legal age to marry for women in India is 18, the amendment to Section 375 comes into question, ultimately rendering it redundant. More importantly, it’s unfathomable as to why the Indian legal system avoids making marital rape a criminal offence.
Merriam-Webster (Rape, 2020) dictionary defines the term rape as
‘‘unlawful sexual activity and usually sexual intercourse carried out forcibly or under threat of injury against a person’s will or with a person who is beneath a certain age or incapable of valid consent because of mental illness, mental deficiency, intoxication, unconsciousness, or deception.’’[v]
In the eyes of law, the relationship between the victim and the perpetrator should not be clouded by judgement. Be it a spouse or a live-in partner, if they force themselves upon their spouses or partners or coerce them into sex, abuse their authority to assault or inflict injury- it is rape and it must be criminalised.
Attempts to Criminalise Marital Rape
The Justice Verma Committee 2020, recommended changes to the Criminal Law Act, gave the following recommendations with regards to marital rape:
- The exception for marital rape is removed from the Indian Penal Code
- The law ought to specify that:
- A marital or other relationship between the perpetrator and victim is not a valid defence against the crimes of rape or sexual violation;
- The relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity;
- The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.[vi]
However, these clauses were not adopted in the Criminal Law (Amendment) Act 2013. The basic essence of the recommendations is that marriage doesn’t give automatic consent to sexual activities. Further, it also states, ‘the relationship between the victim and the perpetrator is irrelevant’.
In 2015, the RTI Foundation filed a Public Interest Litigation(PIL), challenging the exemption under section 375 and section 376B IPC. The exceptions to these sections do not consider unconsented sexual intercourse forced upon the wife as a criminal offence. The PIL claimed that the exemption is unconstitutional, as it violates the right of married women under articles 14, 15, 19, and 21 of the constitution.
In the aforementioned case, an NGO called Men’s Right Welfare Trust claimed that special laws for protecting women from sexual assault and domestic violence already exist in the Indian legal system. Further, they stated that criminalizing marital rape can be used as a tool for harassment against the husband, and there might be instances of misusing Protection of Women from Domestic Violence Act, 2005, or in that case any act which protects women’s right.
While there may be such scenarios, they are a rare occurrence. Based on such rarest of rare cases, one should not compromise with the issue of marital rape where women’s bodily integrity and autonomy is at stake.
In the same case, RIT Foundation v. Union of India, the Human Rights lawyer, Colin Gonsalves argued,
“allegations of misuse of the law without supportive data cannot be grounds for staying with the current legislation.”
Center, on the other hand, was of the following view,
“All act of sexual intercourse can be termed as rape if claimed by women as there is no lasting evidence in case of sexual acts between a man and his wife.”
Marital rape is a heinous act and neglecting it based on lack of evidence to prove it, cannot be a justification for making it illegal.[vii]
In July 2018, it was stated by a bench of acting Chief Justice Gita Mittal and C Hari Shankar that in a relationship like marriage, both men and women have the right to say “no” to physical relations. Men can put their wives under financial constraints or other coercions and can indulge in sexual intercourse with her.[viii] The central government in its reply before the bench submitted an affidavit stating, ‘criminalizing marital rape may destabilize the institution of marriage’. These remarks by the state reflect the ingrained sense of patriarchy which our systems have internalised.
The central government differentiated between rape and forced sexual intercourse in a marital relationship, it argued that removing the Exception II, Section 375 of IPC will not serve any useful purpose. As a man is said to commit ‘rape’ as defined under Section 375 of IPC and it cannot be the same in the case of marital rape.[ix]
This goes to show how women have to submit their bodily integrity just to protect the institution of marriage. No matter how much the government tries to protect the sanctity of marriage by decriminalizing marital rape, without the respect for consent, it is already in shambles.
In 2019, the courts’ inhibition to meddle with the subject of marital rape came to fore once again, as the Supreme Court refused to deal with Anuja Kapur’s petition.[x] Instead the apex court asked her to approach the Delhi High Court.
In multiple cases, marital rape has been an excused subject both by the courts and the government, arguing that marriage exists in a private sphere. The courts have repeatedly excused blatant sexual violence and infringement of human rights[xi] citing marriage as the cause.
The sanctity of marriage is upheld not by one partner asserting dominance or violence over the other, it is upheld by the love and trust between the two entities. Hindu culture puts the ‘pati’ (the husband) on a pedestal epitomising him as the ‘Parmeshwar’ (supreme lord). Marriages in India survive because the women silently bear violence and abuse within the marital relationship. Marriage should be a union built upon trust, love, and mutual respect. Marital rape in no way signifies love and respect in a marriage. It is a crime.
Women can’t be expected to protect the so-called ‘honour and pride’ at their own behest. Our tradition propagates silence in the face of abuse. The fear of speaking out is instilled in women from an early age, but it is slowly waning and more women are speaking out. It is time that the judiciary and the government pay heed.
Several PILs have been filled time and again and several of them are still pending before the courts, pleading for the criminalisation of marital rape. In a criminal offence like rape, the victim needs to receive justice and the perpetrator needs to be punished, irrespective of their relationship. Marriage must not serve as a free pass for the convict and the courts must take this into consideration. Currently, Section 375 IPC describes rape as,
“sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 18 years of age.”
We can only hope that this definition will apply affirmatively in the institution of marriage as well. Only when the legal system adopts and propels change, will people’s mindset towards violence in a marriage will change.
[iii] Rajagopal, K., & The Hindu. (n.d.). Sex with minor wife, despite consent, is rape: Supreme Court. https://www.thehindu.com/news/national/sex-with-minor-wife-is-rape-says-supreme-court/article19838085.ece
[iv] Rajagopal, K., & The Hindu. (n.d.). Sex with minor wife, despite consent, is rape: Supreme Court. https://www.thehindu.com/news/national/sex-with-minor-wife-is-rape-says-supreme-court/article19838085.ece
[vi] PRS legislative research. (n.d.). Justice Verma Committee Report Summary. https://www.prsindia.org/report-summaries/justice-verma-committee-report-summary
[vii] Sahariah, S., & Global Citizen. (n.d.). Indian Courts Finally Consider Making Marital Rape Illegal. https://www.globalcitizen.org/en/content/marital-rape-india-criminal-offense/
[viii] The Economic Times. (n.d.). Marriage doesn’t mean consent for sex: Delhi High on marital rape Read more at:
[ix] Kumar, V., & Legal Services India.com. (n.d.). This research paper deals whether section 375 of the Indian Penal Code, includes Marital Rape or not. http://www.legalservicesindia.com/article/2500/Does-Section-375-of-IPC-Include-Marital-Rape.html
[x] “SC in dilemma over marital rape – The Tribune India.” 8 Jul. 2019, https://www.tribuneindia.com/news/archive/nation/sc-in-dilemma-over-marital-rape-798695. Accessed 1 Dec. 2020.
[xi] “Problems With Section 375 Of The IPC: India’s Marital Rape ….” 6 Jun. 2019, https://www.youthkiawaaz.com/2019/06/the-problem-with-section-375-indias-marital-rape-laws/. Accessed 1 Dec. 2020.