MARITAL RAPE IN INDIA: NEED FOR REFORM
Anjani Tewary
Jindal Global Law School
Most Indian laws have inherently patriarchal and sexist origins, especially the ones
relating to marriage. The consequences of such restrictive and regressive provisions become
apparent in the case of gender based or minority crimes. One of these problematic provisions
is Exception 2 of Section 375 of the Indian Penal Code, 1860 which reads: “sexual
intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape.”
This exception gives husbands a license to forcefully engage in sexual acts with their
wives without their consent, since it is not punishable by law. The rationale behind
acceptance of the current provision are:
1. The deeply imbedded idea that marriage includes never-ending, implied consent
to engage in sexual acts, and that a woman is a husband’s ‘property’ post
marriage. This commodification of women is potentially degrading, and therefore
problematic. Acting Chief Justice Gita Mittal and Justice Hari Shankar of the
Delhi High Court had held that “Marriage does not mean that the woman is all
time ready, willing and consenting [for sex]. The man will have to prove that she
was a consenting party.”
2. The fact that women might use these laws against their husbands, and this would
destabilize the foundation of a marriage thereby going against Indian culture.
However, this overlooks the fact that two out of every five women are victims of
sexual, physical and domestic violence. Moreover, this reasoning reiterates
dogmatic and parochial ideas that a woman has to silently bear whatever she is
subjected to. Any and every ounce of authority that empowers them is seen as a
threat to the patriarchal and oppressive conceptual framework of marriage.
Even Courts have attempted to clarify this misunderstanding and have held that
marriage is personal, and that acts of the State cannot destroy the institution itself.
(Independent Thought v Union Of India.1)
3. Marital rape has been called a ‘Western Concept’. After taking into consideration
illiteracy, poverty, lack of financial females and other socio-economic concerns, it
has been argued that marital rape laws cannot be introduced in India because the
country is not ready for it. However, how long do females need to suffer because
regressive minds in the country are not ready to accept change?
Such laws also bear testimony to the State’s insensitivity and lack of disregard for the
safety and dignity of women. Such failure to recognize marital rape is the state’s complicit
acceptance. The blatant disregard is violative of married women’s fundamental right to
equality, since it denies them equal protection from rape and sexual harassment.
The Verma Committee, which was instituted in the wake of the Nirbhaya rape case of
2012, observed that marital rape is violative of the right to life, and suggested an absolute and
complete criminalisation of the same. Despite countless petitions before the Courts asking
them to amend this provision, no proper step has been taken by lawmakers.
In Justice KS Puttuswamy v UOI2 the Court specifically held that the right to privacy
includes “decisional privacy reflected by an ability to make intimate decisions primarily
consisting of one’s sexual or procreative nature and decisions in respect of intimate
relations.” The same should also be applied in the case of married women.
Therefore, it is suggested that the Section is amended and marital rape is criminalized.
The argument that the country is not ready for marital rape laws is baseless. Such an
1
(2017) 10 SCC 800)
2
(2017) 10 SCC 1
indifferent attitude to marital rape implies its passive acceptance. On the contrary,
introduction of laws criminalizing marital rape is imperative. Considering the plight of the
women in the country, and in the aim of making the country a safer place for women, it is
imperative that we introduce legislations which are both gender neutral and gender sensitive.
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