RE-EVALUATING THE MARITAL RAPE EXCEPTION IN INDIA

Author: Radhika Gupta

1. ABSTRACT

The Indian Penal Code was drafted in 1860, a time when the institution of marriage was deeply molded by patriarchal norms. During this era, women were largely considered subordinate to men in all aspects of life, and marriage was viewed as an irrevocable agreement of consent granted by the wife to her husband regarding all activities, including sexual intercourse. However, such archaic norms do not hold water in today’s progressing world, where women are advancing and achieving rapidly across all sectors. Consequently, it has become imperative to critically discuss the validity of the exemption given to marital rape in Section 375 of the Indian Penal Code (IPC), which was subsequently transferred to the new penal code for India in Section 63 of the Bharatiya Nyaya Sanhita (BNS). This exemption violates a married woman’s bodily autonomy and integrity, effectively denying her constitutional rights. India remains one of the few countries that has not aligned its laws with the evolving global landscape, international treaties, and human rights standards. This paper explores the historical background of this exception, examines subsequent reforms in other nations, and reviews the current laws in India. Furthermore, it discusses the arguments for and against criminalization, identifies potential challenges, analyzes the implications of such a legal shift, and provides a possible roadmap to bring about this reform in the most positive and effective manner.

2. INTRODUCTION

Marital rape is defined as unwanted sexual intercourse by a spouse within a marriage. It stands as one of the most concerning and under-researched human rights issues in contemporary India. Even though there has been a significant evolution of global and national conventions relating to consent, gender equality, and bodily autonomy, Indian law still maintains an exception for husbands regarding domestic rape, provided the woman is not a minor. This provision, found in Section 375 of the Indian Penal Code, appears to be a remnant of patriarchal tradition, as it considers marriage to carry long-term implications of contractual sexual access and acts as a gatekeeper between married women and their personal autonomy.

This exception fundamentally undermines a married woman’s right to bodily autonomy and often leads to severe adverse impacts. Physically, victims suffer bodily harm, injuries, and detrimental impacts on their reproductive systems. Psychologically, they are forced to endure trauma, depression, and a profound loss of self-worth. This exception serves as a stark reminder of the gender-based discrimination that continues to prevail even within intimate relationships.

While unmarried women are well-protected by the law from the atrocities of rape, married women are arguably left vulnerable. The prevailing legal logic suggests that by agreeing to marry, a woman is thought to have given irrevocable consent, thereby granting her husband a license to treat her as his property.

Concepts such as the ‘sanctity of marriage’ and the notion that ‘marriage is a private sphere’ are frequently cited by courts to justify their limited action in protecting married women from rape within their matrimonial homes. While courts have occasionally recognized the inherent injustice of this exception, they often deem it to be outside judicial competence. Meanwhile, the legislature, influenced by deep-seated patriarchal resistance, has yet to definitively litigate on this matter.

This topic highlights an ongoing struggle between traditional societal norms regarding gender roles and an individual’s fundamental rights to equality and dignity. It raises critical questions regarding whether a ‘holy institution’ like marriage should be used as a shield to deny individuals their rights to equality, safety, and justice.

3. HISTORICAL AND THEORETICAL BACKGROUND

3.1. Historical Roots of the Marital Rape Exception

English Common Law established a legal principle known as the Doctrine of Coverture. Historically, this doctrine was seen to merge a married woman’s identity with that of her husband, leaving her devoid of independent legal rights. Under this principle, a wife’s rights were subsumed by her husband’s, granting him complete domination over her body and actions. This implied that upon marriage, a woman gave her consent to sexual relations according to her husband’s will. This colonial perspective is still reflected in marital rape exceptions, such as those present in Section 375 of the IPC or Section 63 of the BNS.

Sir Matthew Hale’s 1736 treatise was a pioneering force in establishing the marital rape exception, first in Britain and subsequently in its colonies, including India. He posited that it was impossible for a husband to rape his wife because, by their mutual matrimonial contract, a wife gives herself up "in kind" to her husband, a consent which she cannot retract. This principle was pivotal in enforcing women’s subordination within marriage and providing the judicial basis for this exception.

3.2. Theoretical Approaches to Marital Rape

The Feminist Theory places this exception under the broader lens of patriarchy and male domination. It argues that these forces have introduced power dynamics into the intimate relationship of marriage, preventing it from becoming a safe sanctuary. According to this view, marital immunity sustains gender inequality by denying women their rights to bodily autonomy and viewing them essentially as subordinates to their husbands.

The Consent Theory challenges the archaic view that a woman grants irrevocable consent upon marriage. It asserts that consent, especially for sexual relations, must be ongoing, enthusiastic, and revocable at any point in time, even within a marriage. The institution of ‘holy matrimony’ should not deny a woman her right to say "no" to sexual activity.

The Human Rights Aspect maintains that marital immunity is a violation of a woman’s dignity, bodily integrity, and right to equality as mandated by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and other international conventions.

3.3. Privacy Paradox

The State often justifies its inaction in this matter by stating that marriage is a sanctified private domain and thus beyond judicial reach. This claim is paradoxical, as the State already regulates this ‘private sphere’ by adjudicating conjugal rights, setting marriageable age restrictions, and enforcing several other domestic laws. This selective penetration into the ‘private sphere’ uses the notion of privacy as a convenient shield to prevent the criminalization of marital rape.

3.4. Comparative Practice

South Africa, the United Kingdom, and several states within the United States are notable examples of jurisdictions that have repudiated historical doctrines and criminalized marital rape on the grounds of constitutional equality, bodily autonomy, and human rights obligations. In stark contrast, India remains on the list of approximately 30 countries that have stood by cultural and patriarchal arguments, thereby preventing this crucial legal reform.

4. CURRENT LEGAL CONTEXT

4.1. Current Legal Framework and Gaps

4.1.1. Provisions of Section 375 of the Indian Penal Code and Section 63 of the Bharatiya Nyaya Sanhita (after 2023):

“A man is said to commit ‘rape’ if he:

1. Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

2. Inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

3. Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

4. Applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:
   

   • Against her will.

   • Without her consent.

   • With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

   • With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

   • With her consent when, at the time of giving such consent, by reason of mental illness or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

   • With or without her consent, when she is under eighteen years of age.

   • When she is unable to communicate consent.
     

Exception 1: A medical procedure or intervention shall not constitute rape.

Exception 2: Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”

4.1.2. Provisions of Domestic Violence Laws and Other Statutes:

1. Protection Under Domestic Violence Act, 2005: Even though there is marital immunity for rape, married women do have access to this act, which grants them access to civil remedies. It recognizes sexual abuse within a marriage and considers it a form of domestic violence. It seeks to empower women to raise their voices to free themselves from abusers. However, it does not create any criminal liability and is fundamentally more protective than punitive.
   

2. Other Criminal Provisions for Domestic Cruelty: Section 498A of the IPC provides for punishment for any form of cruelty by a husband or his relatives towards a wife, but it does not explicitly address marital rape.

4.1.3. The Judicial Precedent History and Reluctance to Strike Down Marital Rape Exception:

1. Indian Courts remain hesitant to confront the injustice of the exemption in Section 375 of the IPC due to deep-rooted societal views which consider marriage to be a holy and private institution in which all sexual activities are presumed consensual.
   

2. In most cases, the High Courts and Supreme Court have spoken about the injustice of marital rape but have stopped short of striking down the exemption. In Nimeshbhai Bharatbhai Desai v. State of Gujarat (2017), the Gujarat High Court described marital rape as a disgraceful offense but did not take action to invalidate the exception.
   

3. In 2022, the Delhi High Court delivered a split verdict. On one hand, Justice Shakdher regarded this exception as unconstitutional and a violation of women's bodily autonomy. On the other hand, the exception was upheld on the grounds of marital privacy.
   

4. The Justice Verma Committee Report (2013), formed after the tragic 2012 Delhi gang-rape incident, recognized the regressive and patriarchal nature of the exception and recommended its complete removal. It stood by the need for unequivocal criminalization of marital rape, citing bodily autonomy, gender equality, and the dignity of women as primary reasons. However, the government resisted criminalization by citing the potential negative impact on the sanctity of the institution of marriage.
   

5. Petitions have continued to challenge this exception, and Hrishikesh Sahoo v. State of Karnataka is a case currently pending before the Supreme Court. This reflects increasing awareness and the urgent need for judicial and social reform.

4.2. Constitutional Dimensions

4.2.1. Article 14 (Fundamental Right to Equality) and the Marital Rape Exception

While Article 14 of our Constitution guarantees equality before the law and equal protection of the laws to all persons within its territories, the second exception of Section 375 of the IPC fails this fundamental mandate. This exception creates an unnecessary and arbitrary distinction between married and unmarried women regarding protection against rape. This distinction fails the twin tests under Article 14 which determine whether a classification stands. The legal understanding of marriage as a relationship between equal partners is also contradicted by the idea of irrevocable consent, which this exemption clause upholds.

4.2.2. Article 21 (Fundamental Right to Life and Personal Liberty) and the Marital Rape Exception

This Article protects the right to life, liberty, dignity, and personal freedom. Forced sexual activities within a marriage constitute a grave violation of the bodily autonomy, integrity, and dignity of an individual, directly contravening this fundamental provision of the Constitution. This exemption infringes upon a married woman’s constitutional right to live with dignity and integrity, as it effectively allows a husband to impose sexual activities on his wife without her consent. Judicial decisions have repeatedly recognized that the private nature of sexual activities does not exempt the State from taking action if the infringement of Fundamental Rights is involved.

4.2.3. Right to Privacy and Marital Rape Exception

A landmark ruling, K.S. Puttaswamy v. Union of India, held that privacy is essential for human dignity and individual autonomy, encompassing several private aspects of life. However, this Fundamental Right is not absolute. The concept of ‘privacy’ cannot be used to defend and protect acts of violence. Instead, it stands to protect equality and an individual’s consent and dignity.

5. ARGUMENTS FOR AND AGAINST CRIMINALIZATION OF MARITAL RAPE

5.1. Sanctity of Marriage

Those critiquing the idea of criminalizing marital rape believe that state intervention into the private matters of marriage would undermine the sanctity of the institution and interfere with personal relationships. They worry that such legislation would be an overreach by state authority, which could potentially damage the sacred bond between spouses and create legal conflicts in private matters.

On the contrary, those promoting criminalization believe that the sanctity of marriage is compromised the moment a man forces his wife to engage in sexual activities without her consent. When marital rape takes place, it shatters the trust, mutual respect, and confidence that form the core of a marriage. They maintain that rape within a marriage is what dismantles the sanctity of the union, not the legal scrutiny that would follow if the case were reported.

5.2. Matter of Consent

An argument against criminalizing marital rape is based on the notion that marriage itself implies the wife consents to sexual activities. This school of thought suggests that by agreeing to marry, a woman gives her irrevocable consent, and her subsequent lack of consent to engage in specific sexual activities is of no legal consequence.

Opposing this belief, those in favor of criminalizing marital rape stand by the idea that marriage should not be a place where a wife becomes subordinate to her husband and his wishes. They argue that expecting unquestionable and perpetual consent to sexual acts throughout the course of the marriage—based solely on signing marriage papers—is fundamentally unfair and dehumanizing.

5.3. Cultural Aspect

Certain cultural norms and values related to the holy institution of marriage are deep-rooted in society, and changing them is seen by some as challenging long-established traditions. Societal ideologies often dictate that fulfilling a spouse’s sexual needs is a part of marital duty. Discussing anything related to sexual activities within a marriage is often considered taboo. Voicing a complaint could ostracize a woman in society, and the criminalization of marital rape is sometimes viewed as a challenge to tradition or a form of "westernization" of culture.

However, with time, several archaic practices that consider women to be the property of men are being challenged. The modern view seeks to accept those aspects of tradition that do not violate a woman’s dignity or objectify her. Those standing for criminalization believe that in these changing times, where we are fighting against the age-old roots of patriarchy, such a change would be monumental in preserving a woman’s dignity. They believe that this cultural shift would strengthen mutual respect and trust within a marriage.

5.4. Pseudo Cases v. Criminal Liability

There is a concern that criminalizing marital rape may result in the misuse of the law, where wives might use this provision to intimidate their husbands. Critics fear that challenges faced in cases like Arnesh Kumar v. State of Biharwould be exacerbated, potentially leading to an influx of false cases in an already overburdened judicial system.

However, those supporting the removal of marital immunity maintain that having specific legislation addressing marital rape would prevent offenders from committing the act and save countless married women from the trauma of such atrocities. They choose to believe in the justice and equality that the judicial system stands for, having faith in its ability to filter out misuse while protecting genuine victims.

6. PESTEL ANALYSIS OF CRIMINALIZATION

6.1. Political Aspect

Conservative political parties and groups often resist criminalization because they fear backlash from those adhering to patriarchal ideologies. They may not wish to promote a change that could be perceived as undermining family values. However, international bodies like the UN are pressuring India to align its laws with international human rights standards and the provisions of the International Covenant on Civil and Political Rights (ICCPR) and CEDAW.

6.2. Economic Aspect

In the short run, criminalization will likely lead to an increase in reported cases of marital rape, which will increase the burden on the police, judiciary, and victim support services. In the long run, however, it would lead to a reduction in the costs associated with intimate partner violence, which currently impacts healthcare systems and individual economic productivity.

6.3. Social Aspect

There would likely be a significant patriarchal backlash from traditionalists, and victims could become targets of social stigma and ostracization. However, society is also evolving and gradually accepting the need to recognize and legally protect a woman’s bodily autonomy and sexual freedom, even within a marriage.

6.4. Technological Aspect

Technological platforms play a pivotal role in increasing awareness regarding this exemption, reporting abuse, and empowering survivors to speak up. Conversely, social media is also a platform that amplifies debates, potentially inflaming matters and raising the visibility of both genuine advocacy and false accusations.

6.5. Environmental Aspect

There is no significant environmental impact associated with this legal reform.

6.6. Legal Aspect

The marital rape exception violates fundamental constitutional provisions of equality (Article 14), protection from discrimination (Article 15), and the right to life and liberty (Article 21). Additionally, it is important for Indian law to align with international treaties and obligations under CEDAW, ICCPR, and the Universal Declaration of Human Rights (UDHR). The concern regarding the potential misuse of this law, however, remains a point of legal debate.

7. CHALLENGES RELATING TO CRIMINALIZATION

7.1. Infrastructural Challenges:

1. Lack of Sensitization: The lack of sensitization among the police and judiciary often leads to inadequate handling of these issues, meaning victims may face further insensitivity. There is also a risk of bias in investigations and trials.

2. Limited Support Services: A scarcity of support services hinders the legal procedure and leaves victims without sufficient protection and rehabilitation options.

3. Verification Difficulties: There is no foolproof way of immediately determining whether a false accusation is brought to court, which fuels fears that the law could be misused.

7.2. Social and Cultural Challenges:

1. Fear of Retaliation: Survivors often become victims of fear regarding retaliation from the husband’s family, leading to social stigma and ostracization. This actively discourages women from reporting crimes.

2. Underreporting: Even with legal reform, cultural ideologies, limited awareness, and distrust in the judicial system may cause significant underreporting.

8. ROADMAP FOR CHANGE

8.1. Judicial Push

Ongoing petitions in the Supreme Court challenge the exception under Section 375 of the IPC and fight to gain the rights under Articles 14, 15, and 21 of the Constitution. Continued pressure on the judiciary to confront these long-standing exemptions is vital. The judiciary must use its power of judicial activism to criminalize marital rape and set a precedent via ongoing cases like Hrishikesh Sahoo v. State of Karnataka.

8.2. Legislative Codification

Judicial momentum should ideally result in legislative reform. Eliminating the exception clause and criminalizing marital rape—while setting procedural safeguards to combat challenges like false accusations—would provide unequivocal statutory support and strengthen enforcement procedures.

8.3. Institutional Strengthening

It is essential to train the judiciary, police, and medical professionals handling marital rape cases to be both sensitive and competent. This would bridge the knowledge gap regarding these issues and prevent biases during procedures. There is a need to form survivor-oriented support systems, such as counseling services and legal aid, to empower victims and provide a more holistic form of justice.

8.4. Social Reform

While legal reform is necessary, social change is fundamental. Awareness initiatives are essential to dismantle social stigma, challenge archaic norms, and educate the public—especially women—about the right to bodily autonomy. Shifting societal attitudes will create a supportive environment that encourages victims to raise their voices.

9. CONCLUSION

To exempt marital rape is equivalent to stating that on the joyous occasion of her marriage, a woman does not merely sign her name on a marriage certificate to gain marital status, but signs away her right to say "no," along with her bodily autonomy and integrity. It is absurd to expect a woman to sign a piece of paper once and thereby consent to a potentially lifelong subjection to dominance and forceful engagement in sexual activities.

This marital immunity to rape is a glaring legal and social issue, but more importantly, it is an issue concerning how Indian society views and treats women, especially once they are bound in the bond of marriage. This exemption continues to stand on the grounds of maintaining privacy in intimate relations and the sanctity of marriage. However, one must ask: how can the sanctity of this institution be upheld if one spouse feels victimized, disrespected, and objectified?

This exemption stands in stark contrast to, and in violation of, constitutional provisions of equality and the right to life and liberty. How is it that the definition of rape changes depending on a woman’s marital status? How is it that by marrying, a woman’s liberty, autonomy, and consent lose value?

Societal resistance, insufficient judicial action, and legislative inertia have left us with a law that dates back to the 19th century. By not criminalizing marital rape, we allow women to be subjected to excessive cruelty even in the domestic environment and disrespect their struggles and trauma. Today, it is imperative to approach the criminalization of marital rape in phases: judicial precedent, legislative codification, institutional strengthening, and the promotion of social change. It is necessary to face the possible challenges of false accusations by finding solutions—such as medical checks or evidentiary standards—rather than putting the integrity of half the married population at risk.

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