Criminalization of Marital Rape in India - What is the Dilemma?

Rape is an act of cruelty which takes away the soul of the victim. It is not the bodily injury, but the mental agony which keeps haunting someone who is forced to have sexual intercourse against will. Marriage is a social institution which grants legal acceptance to sexual intercourse between husband and wife. But does it grant licence to husbands to force sex upon their wives? Then why marital rape is legal in India? Find out the plight of marital cases in India with respect to sexual intercourse.

Rape Law in India

The definition of rape is clearly laid by the legislators, though it witnessed several amendments from time to time. The definition punishes a man who has sexual intercourse with a woman or makes her do so with another, without her consent. The Section 375 of Indian Penal Code, 1860 defines ‘rape’ with the following acts:

• Penetration of penis or any other object into the vagina, mouth, urethra or anus of a woman; or
• Insertion of any object or part of the body into the vagina, urethra or anus of a woman; or
• Manipulation of any part of a woman’s body causing penetration into the vagina, urethra, anus or any part of the body; or
• Application of his mouth to the vagina, anus or urethra of a woman.
• There are several additions elaborating the free consent, and what constitutes vagina, etc.

The exception 2 of Section 375 of IPC specifically excludes sexual intercourse by a man with his wife above 15 years. The very ‘Exception 2 of Section 375’ is under the radar while discussing marital rape since it nullifies the value of consent of a wife towards sexual acts with her husband.

Marital Rape

Establishing sexual relationship among spouses is said to be the basic objective of marriage, be it Hindus, Muslims, or any other religion. On the other hand, man and wife are equals in a marriage who need to walk hand-in-hand for a successful marriage. But when bodily needs are used as an excuse to force sexual intercourse upon the wife without her will, why is it justified with marital obligations? There are activists across the country who are demanding knock down of exception 2 to the definition of rape under Section 375 which makes marriage an exception to husband forcing sex upon his wife. Likewise, cases of Kolkata are coming to light through criminal lawyer in Kolkata.

Marital Rape Status in India

It is pertinent that the definition of rape under IPC 1860 and the exception 2 to the same already excludes marital rape, i.e. forced sex with wife. When society started questioning the constitutionality of this exclusion of rape in marriage, a Parliamentary Panel in response to a Judicial Committee in 2012 responded that criminalizing marital rape will put families under stress. Family lawyers time and again bring cases concerning marital rape in India, which still remains a disputed rather than a settled aspect.

Kerala High Court in a recent case^[1] held that “Treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape”.

Recently, Delhi High Court’s division bench gave a split verdict^[2] while deciding the legality of exception 2 to Section 375 of IPC. One judge held marital rape in India as unconstitutional, while the other decided knock down of the exception a threat to the institution of marriage, thereby upholding its constitutional validity.

Even a sex worker^[3] has got the right to say no to sexual intercourse at any point of time as recognized by the apex court.

The question still remains as it is. The question of ‘Should marital rape be considered a crime?’ is yet to be established. The hon’ble Supreme Court is yet to start with legal proceedings to decide the constitutional validity of Exception 2 to rape law under Section 375 of IPC which legalizes marital rape in India. Coming to societal take, it also possesses split opinions. Victims of forced sex by husbands are in favour of striking down the exception 2. While the victim husbands of fake cases by wife see the removal of exception as handing over another weapon to the wife already possessing numerous deadly ammunition against the husband’s reputation, economic and mental welfare.

Should Marital Rape be Considered a Crime?

There are two sections of the society being affected, having opposite opinions when it comes to criminalizing marital rape in India. Hence, it is better to understand why they have a particular opinion and the roots behind such a take.

Why is Criminalization of Marital Rape Needed?

The advocates of criminalizing rape in a marriage purport the following arguments:

• Woman's right to physical integrity flows from her right to life, dignity and bodily privacy protected under Article 21.
• Rape of a woman attacks her dignity regardless of whether perpetrator is her husband or a stranger.
• Exceptions to Section 375 of IPC based on marital relations between victim and perpetrator is discriminating.
• It is a moral right of a woman to refuse unwanted, forcible sexual intercourse.
• Right to individual privacy and integrity are done away while upholding the conjugal privacy of matrimonial bedroom because marital rape in India is legal.
• Courts through provisions like restitution of conjugal rights may force husband and wife to live together, but they can not force either or both of them to have sexual intercourse.
• In a country like India, where most of the girls marry a stranger through arranged marriage setup, a husband is still a stranger and thus, the explanation of keeping husband and stranger on a common pedestal is not logical. Thus, forced sexual intercourse hits the dignity of a woman in similar manner as it does when the perpetrator is a stranger.
• The essence of definition of rape lies with consent of the woman. Such women should not be disfavoured for being a wife.
• Several courts have supported that one time consent to have sexual intercourse with a man does not mean consent for further acts. The same should apply to a husband not assuming marriage as an everlasting consent to have sexual intercourse anytime and anywhere.
• Reduced punishment of marital rape during judicial separation as depicted under Section 376B of IPC is also discriminatory.
• The history of legal debates of lawmakers over the statutory language of rape does not purport exception to marital rape as a safeguarding provision for the institute of marriage.
• An illustrious situation whereby a woman is gangraped and husband is one of the perpetrators, he’ll be benefitted from his marital relation with the victim which is discriminating against the other accused persons.
• Grant of exception to husbands in the definition of rape is the State encouraging husbands to have forced sexual intercourse with their wives under the guise of marriage.
• Other offences like IPC 498A punishing cruelty, provisions of domestic violence, etc. have different ingredients and do not cover up a heinous crime like rape under the veil of marriage.

Why Criminalizing Marital Rape is Tricky for Marriage?

The advocates who stand against criminalization of marital rape in India have the following arguments:

• A sexual crime committed by a person who is not a legally married spouse or is a stranger attracts the punishment for rape under Section 375.
• The relationship among a sex-worker, or any person with the abuser can not be kept on the same pedestal as that of husband and wife. In other cases, there is absence of emotional relationship, mutual obligation to have sexual relation, maintence, religious norms, etc.
• In case of Vidhya Viswanathan^[4], the court held that “The importance of conjugal rights in marriage can be ascertained by having regard to Section 9 of the Hindu Marriage Act, 1955 which concerns restitution of conjugal rights. The remedy under this provision is available to both spouses. Denial of sex by either spouse is construed as cruelty and, thus, is available as a ground for divorce”.
• Marriage reflects towards spouses consenting to sexual intercourse, financial dependence, progeny, etc. Sexual intercourse among married couples is legal and socially accepted. It should not be kept at the same pedestal as a stranger or non-spouse committing forced sexual intercourse.
• Exceptions to husbands under Section 375 of IPC are not arbitrary. On the contrary, it respects the intimate nature of the relationship between spouses and absence of eye-witness in the usual scenario.
• There are alternate remedies available to the victim wife against husband who forces sexual intercourse upon her through Indian law on domestic violence, criminal cruelty under Section 498A IPC which also include sexual violence among spouses.
• Marital rape during judicial separation by the husband is punishable under Section 376B. Even unnatural sex with female is punishable under Section 377 of Indian Penal Code without exception to married couples.
• It is also regarded as a valid ground for divorce in India - Marital rape is a ground for divorce - Kerala High Court held in the case of X v. X, Mat. Appeal No. 151 of 2015, decided on 30-07-2021.
• The distinction between rape under IPC and sexual violence by spouse reflects the legislature’s intention with regards to the complexity involved with the institution of marriage.
• Several changes in the provisions of rape have taken place from time to time. But the legal stand of marital rape remains untouched, which reflects the legislature’s intention to keep marriage away from the ambit of rape under IPC 375.
• If exception 2 is knocked down, sexual intercourse with a drunk wife or a wife of unsound mind will always be rape.
• Coming to evidence of consent in case of rape, Section 114A provides that whereby sexual intercourse is confirmed and the victim woman denies consent to such intercourse, the court may presume that there was no consent and proceed unless the man is able to prove her consent beyond doubt. Burden of proof is a tiresome task in marital relationships.
• The presence of bruises or injury upon the wife's body cannot automatically lead to an adverse conclusion against the husband. The possibility for manifestation of passion while a couple indulges in sexual acts should not be ignored.
• Increasing cases of misuse of section 498A of IPC in recent years is another concern for people advocating against the criminalisation of marital rape in India. If the exception for husbands is nullified, it will be another weapon in the hands of wives in a failed marriage avenging against husbands.  
• If what they term as marital rape in India is removed from exceptions, husbands may be forced to create a detailed evidentiary record of every act of intimacy by inviting a third party to act as a witness or with a surveillance camera, which eventually affects the right to privacy of both the spouses.
• If its a matter of legality of forced sexual intercourse in a marriage, rape against men by women should not be disregarded.
• If exception to marriage under Section 375 is removed, husbands living with their wives will be in worst position since they can be harshly prosecuted for repeated sexual intercourse and sexual intercourse with pregnant woman, which is otherwise normal in case of married couples.

Marriage is an important institution which lays the foundation of social fabric in India. Individual rights of bodily integrity of a married woman may or may not be a concern for the society as a whole. However, whether an act complained of is legal or illegal is a matter decided by courts based on specific facts and applicable law. Such factors are not directly witnessed by the courts through surveillance cameras installed at every nook and corner,and bedroom in present context. It is the evidence available, produced, and directed towards the court that assists in decision making, which may be fabricated, or there may be no direct evidence available at all. Considering these aspects, criminalising marital rape in India by directly striking down the exception 2 to Section 375 itself sounds a bit scary for husbands who only had a casual argument with their wives which hit wife’s nerve of ego resulting in rape proceedings against the husband. Whether she succeeds in such legal action is a matter of trial, while the time in between proves to be a nightmare for the innocent husband. There are several laws for married women’s rights which are less practised as a remedy and more as a weapon to force husbands to loosen their pockets, harass husbands and their families, and eventually seek revenge for failure of marriage, which was a mutual responsibility.

Should Marital Rape be Considered a Crime? - Suggestions

The ball eventually falls under the court of lawmakers/ legislature to address the plight of actual victims of forced sexual intercourse. Rather than directly striking the exception 2 to Section 375, they should consider making a separate law addressing the menace of forced sex and marital cases in India. In addition, assuming only males to be the perpetrators in a marriage also does not help with social welfare. Men can also be the victims in a marriage. Thus, gender neutral laws in case of offences related to a marriage may help bring justice for victims rather than a particular gender.

^[1] X v. X, Mat. Appeal No. 151 of 2015, decided on 30-07-2021.

^[2] Rit Foundation v. Union of India (WP (C) no. 284/2015).

^[3] State (NCT of Delhi) v. Pankaj Chaudhary, (2019) 11 SCC 575.

^[4] Vidhya Viswanathan v. Kartik Balakrishnan, (2014) 15 SCC 21.