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9.1 IJLS (2023) 64
Marital Rape: An Impediment on Women's Right in India
MARITAL RAPE: AN IMPEDIMENT ON WOMEN'S RIGHT IN INDIA
by
Pratibha Sahu1
DOI: https://doi.org/10.60143/ijls.v9.i1.2023.85
ABSTRACT
Women in India have not yet achieved equality or are able to fully
exercise their rights as a result of the patriarchal structure of the
country. The marriage relationship also reflects this imbalance which is
a threat to gender neutrality and gender equality which our constitution
aims to achieve. In Indian culture, there are many different types of
violence against wives during marriage, one such is marital rape. In the
affair of marital rape, consent is irrelevant. It is excluded from the
Penal Code, 1860 definition of rape in Section 375. In India, forcing a
wife into sexual intimacy by a husband is therefore not illegal. Our
judicial system ignores marital rape since the crime is not recognised
as rape in a marriage, despite the fact that it is a severe problem that
our legislature has failed to acknowledge. Marital rape has very serious
repercussions that go far beyond just physical harm; they also cause
emotional and psychological harm. In this paper, we will attempt to
examine the idea of marital rape, how it relates to the idea of gender
equality, and how it violates the constitutionally protected rights of
women under the different dimensions of Art. 14, 15, 19(1)(a) and 21.
Keywords: Consent, Constitution, Gender Equality, Penal Code,
1860, Marital Rape.
Introduction
“Marriage Is Like An Unconditional Duties that One Decides to
Perform.”
-Bhagwat Gita
In India marriage is revered as a holy institution in society -a
collaboration of two souls - a sacred bond based on trust, mutual love,
and respect towards each other not to forget followed by bunch of
rights and duties arising out of it. We have heard so many and so much
of beautiful things about marriage but the flashpoint that now catches
the attention of most people is whether the sanctity persists in such a
celebrated sacred social establishment of marriage.
In India, over the past few years, the institution of marriage has
been greatly questioned on the surface base that does marriage gives
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the ultimate rights in the hands of the man or the husband to dominate
over the women or his wife (as they are considered to be weaker and
stands on the lower footing) to get all his wishes and desires to be
fulfilled either in a harmonious manner or by forceful imposition. A
typical conservative and orthodox notion of the Indian society is that
though marriage is a sacred institutional bond between a man and
women but at the same time it is also a contract between the husband
and the wife solely relying on the concept of ‘consent’, which is
governed mainly by the customs, norms, values, morals and ethics that
the society follows. As rightly observed by a British jurist, Matthew
Hale: “Marriage was a legal contract by which a woman ‘gave herself’ to
2
her husband for life. ” It is because of this vague notion the sexual
autonomy of a women gets diminished or comes to an end as it is
considered that the women has surrendered herself to her husband and
he has all the legal right over his wife which also means that by all
legal means he is entitled to fulfil his sexual desires through his wife in
accordance
Page: 65
‘with her will’ in a peaceful manner or even ‘without her will and
against her consent’ in a coercive manner by applying his force and
establishing his dominance over her.
Marital rape, frequently referred to as conjugal rape, is when a
3
partner engages in sexual conduct without the other person's consent.
Marital rape is when a man engages in sexual conduct with his wife
against her will, whether out of risk to their physical safety, out of a
perpetrator's dishonesty, or for any other reason. Lack of authorisation
is the most important factor; physical violence does not necessarily
follow. Marital rape is the term used to describe acts of domestic abuse
and sexual abuse that take place between married people. Although
customarily acknowledged a right of spouses, sexual activity between
partners is now widely seen as rape and is becoming more criminalised
but India deviates it from the mainstream and takes a conflicting stand
onto it and does not criminalises the immoral act of marital rape and
over to that it exempts and safeguards marital rape from getting
criminalised and penalised. India keeps marital rape outside the
purview of “Rape” as defined under S. 375 and S. 376 of the Penal
Code, 1860. Marital rape is put into exception under S. 375. This is
despite the fact that rape is condemned by international accords.
Therefore, the consideration of marital rape as a legal act in India
does not only inculcate the fear of insecurity into the hearts and the
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minds of the women but it also puts a dreadful impact on the women's
sexual rights in India and gender equality. The non - penalising of
marital rape which is a dreadful offence violates the sexual rights of
women and overshadows the ideology of gender equality in India
enshrined under Art. 14, 15, 19(1)(a) and 21 of the Indian
Constitution.
Understanding the Concept of Marital Rape in India
Rape is rape, and marital rape is rape. These two concepts do not
have much difference between them, other than the fact that the
person in question who committed marital rape can only be the spouse
and no one else.
When a consort/ male partner engages in non-consensual sexual
activity with his wife, it is rape in the marriage. Similar to this, when a
wife engages in non-consensual sexual activity with her husband, it
counts as marital rape. So, although marital rape is a crime regardless
of gender, it is almost never committed by the woman; instead, the
husband is responsible in the vast majority of incidences. Few cases of
wives raping their husbands have been publicly published anywhere in
the world, although it does happen occasionally. Marriages inevitably
involve sexual activity, yet marital rape is entirely antithetical to the
4
concept of marriage.
Rape occurs whenever someone engages in or an attempt to engage
in sexual activity with a partner or mate without the partner's or mate's
free consent. The Penal Code, 1860 defines “rape” in the following
manner:
5
“Section 375 - Rape — A man is said to commit —rape if he—
a) 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
b) 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
c) 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
d) 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:
Firstly - Against her will.
Secondly - Without her consent.
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Thirdly - 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.
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Fourthly - 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.
Fifthly - With her consent when, at the time of giving such
consent, by reason of unsoundness of mind 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.
Sixthly - With or without her consent, when she is under
eighteen years of age.
Seventhly - When she is unable to communicate consent.
Explanation -1. — For the purposes of this section,
“vagina” shall also include labia majora. Explanation 2. —
Consent means an unequivocal voluntary agreement when the
woman by words, gestures or any form of verbal or non-verbal
communication, communicates willingness to participate in the
specific sexual act:
Provided that a woman who does not physically resist to the
act of penetration shall not by the reason only of that fact, be
regarded as consenting to the sexual activity.
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 fifteen years of age,
is not rape.”
Act 13 of 2013 changed Section 375's definition of rape. The
definition is broken down into three sections: first, the
circumstances under which a rape will be considered to have
occurred; second, the justification; and third, the exemption.
While the entire section complies with the law, the exception 2
of the section breaches the fundamental rights of women. It
violates a woman's right to a dignified, healthy life and her
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equality before the law.6
When a husband engages in sexual activity with his wife, who is over
the age of 15, forcibly or against her will, it is not regarded as rape
under section 375, exception 2 of the Penal Code, 1860. As a result,
section 375 of the IPC permits marital rape. Indian marriage laws are a
refection of the heteronormativity of Indian culture, which supports
patriarchy.
It is also because of the reason that Indian society has always been
patriarchal or male-dominated. It is for this very reason that marital
rape is often not regarded as a crime in Indian society since sufferers of
matrimonial rape are typically women rather than men. Marital rape
would have been illegal in India long ago if males had been the victims.
There aren't many people that advocate for outlawing and making
marital rape a crime in India. The most crucial factor in the eradication
of any social ill is society. A society cannot completely purge social evils
unless the society as a whole rejects them. Marital rape continues to be
practiced in India since the country's society has not yet come out
against it.7
Marital Rape and the Constitutional Provisions
The founding fathers of the Indian Constitution's were extremely
familiar with the injustices suffered by women and other socially
vulnerable groups. They designed a constitution that not only protected
women's rights but also empowered the state to take affirmative action
for their safety and advancement, keeping in mind the injustices
women endured and their lowly standing in India's patriarchal society.
The Indian Constitution's Article 14 guarantees everyone's “equality
before the law and equal protection under the law”. Equal protection
under the law entails that the state must not deny its citizens the same
rights. On the other hand, “equal protection of the laws” refers to the
obligation of the State to provide preferential treatment to people in
certain circumstances. Both statements aim to attain status parity. In
the opinion of Dr. Jennings: “Equality before the law” refers to the idea
that “among equals the law should be equal and similarly applied, and
that similar things should be
Page: 67
8
treated equally”. Absolute equality between persons is not recognized.
Dicey described the initial phrase as follows: “With us every official,
from the Prime Minister down to a constable or a collector of taxes, is
under the same responsibility for every act done without any legal
justification as any other citizen”9
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Courts in India have gradually expanded the scope of Article 14 by
including the due process clause.10 Article 14's scope and reach
encompass two aspects: it allows for appropriate classification that is
based on discernible differences, and the differences must be rationally
11
related to the goals being pursued. Following an understanding of
Article 14, it is simple to see how Section 375 Exception 2, of the IPC
violates the idea of equality. In a bare reading of exception 2 of section
375 IPC, it is stated that a husband may engage in sexual activity with
his wife (assuming she is not a minor) without first getting her
agreement. Whether or not she agrees, the husband's actions do not
constitute rape. So, a married woman can currently only file a
complaint against her husband for molestation rather than rape. The
goal of the current exemption is to preserve family unity; hence
classification has been formed based on marital status (i.e., married
and single women). This exception, which grants privilege to a class of
people that was arbitrarily chosen, namely husbands, has formed a
class of legislation rather than creating proper classification. This
categorization is inherently arbitrary, and no justifiable function is
fulfilled by it. The state must apologise for its treatment of married
women discriminatorily.
Article 15 is another provision of the Constitution that is infringed by
this exception under 15(3). Absolute equality may in fact be a cause of
inequality, hence the authors of the Constitution decided to add an
exception to Article 15(1), known as Article 15. (3). While article 15(1)
forbids discrimination on the basis of sex, article 15(3) gives the State
the authority to take positive action on behalf of women and children.
In addition to being discriminatory and violating the spirit of Article
15(3) of the Constitution, Exception 2 to Section 375 of the IPC also
violates Art. 14's definition of arbitrariness. In fact, married women are
now at a significant disadvantage because to the statute's exception to
Section 375 of the IPC, which has never been advantageous to women.
Article 15(3) of the Indian Constitution's altruistic concept is clearly at
odds with this exception. In the case of Independent Thought v. Union
12
of India , it was unequivocally declared that Art. 15(3) could only be
used to pass legislation that benefitted women, and that any measure
that did the opposite would be in violation of this provision.
Everyone's right to freedom of speech and expression is guaranteed
by Article 19 (l)(a). A married woman's right to refuse sexual contact
with her husband is not recognised under the law's contested clauses.
As a corollary, the contested provisions prohibit married women from
consenting to sexual activity, in violation of both provisions of
Exception 2 to 375 and Article 19(l)(a). In NALSA v. Association of
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13
India , the Supreme Court noted in paragraph 69 that Article 19(1)(a)
of the Constitution guarantees everyone the “right to freedom of speech
and expression”, which encompasses the freedom to express one's self-
identified gender. Gender expression can take any shape, including
clothing, language, actions, and behaviour. With the exception of the
limitations put forth in Article 19(2) of the Constitution, there can be no
limits on one's individual person's appearance or choice of fashion. The
marital rape exemption cannot be supported under any of the headings
in Article 19(2), hence this alone makes the clause subject to being
overturned.
The Supreme Court has frequently acknowledged that rape infringes
on a victim's right to life and right to privacy. In Bodhisattwa
Gautam14, it was mentioned that “rape violates the victim's most prized
fundamental right, the right to life guaranteed in Article 21”, ruins the
victim's entire psychology and sends her into a serious emotional crisis.
Rape is also a crime violating
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basic human rights. It was further established in State of Punjab v.
15
Gurmit Singh that a rapist abuses a victim's privacy and personal
dignity and causes substantial psychological injury in addition to bodily
harm. The victim's entire personality is destroyed by it. Furthermore,
the Supreme Court noted in that sexual assault is inhuman and an
unconstitutional invasion of one's right to solitude and sanctity.16 Close
vicinity of the victim and the perpetrator, as well as the nature of their
shared relation, marital rape takes on new levels of heinousness as a
crime. The mere fact that the attacker is the victim's spouse should not
render rape within the boundaries of a married household
constitutionally immune.
The choice of one's sexual partner, or sexual autonomy, is regarded
as a component of individual liberty. According to Article 21, the right
to life also includes the freedom to decide how to have children.
Furthermore, the freedom to decline any sexual activity is regarded as
an element of the right to reproductive health. The Exception eliminates
a married woman's ability to exercise her right to consent to sexual
encounters, asserts that a husband has complete sexual power over his
wife, and shields him from legal action if he rapes her. In Joseph
Shine17, it was decided that it would be disrespectful to a woman's
liberty and dignity to assume that she consents to having intercourse
with her husband during marriage.
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One aspect of autonomy and privacy is a person's right to intimacy,
including the right to intimacy or sexual seclusion. A person's self-
affirming right to have sexual relations with another person of their
choosing gives rise to the right to intimacy. An individual's sexual
agency is being used. In K.S. Puttaswamy v. Union of India18, it was
decided that maintaining personal intimacy, the sacredness of
marriage, family, children, the home, and one's sexuality/gender
identity all fall under the umbrella of privacy. The assumption made by
Exception II—that a woman consents to having sex with her husband
after marriage and that she loses her sexual agency—violates her right
to privacy. An antiquated and stereotyped view of a married woman's
place in marriage underlies the exception. Its foundation is the idea
that a husband has complete authority over his wife's sexual agency,
which she acquires during marriage. Therefore, in this case it was felt
that maintaining one's privacy promotes their ability to exercise
important life-controlling freedoms and safeguards their right to
personal autonomy.
Conclusion
The Indian government and society need to recognise that marital or
spousal rape is the worst type of family-level abuse against women. By
tolerating rape during a marriage, we are still tolerating the antiquated
idea that women are possessions. Husbands do not possess wives for
sexual purposes. We need to investigate how forced sex during
marriage violates women's autonomy as individuals. Under the guise of
marital privacy, women's fundamental human rights cannot be abused.
Any type of rape is demeaning, embarrassing, and detrimental to the
women's health (both physical and emotional). The victim's privacy and
personal dignity are violated during a rape. In addition to being
physically violent, it frequently destroys the victim's entire personality.
Marriage shouldn't serve as a deffence for a rapist since they should be
treated as rapists. “A rapist remains a rapist regardless of his
relationship with the victim,” according to the European Commission for
19
Human Rights.
In addition to being a crime against humanity, marital rape is also
acknowledged as being a barrier to women's advancement.
Instead of just including marital rape in definitions of domestic
violence and assault, it's time to recognise it as a violation of women's
rights to bodily integrity and privacy. By reducing section 375 of the
IPC, we acknowledge that rape committed within a marriage is only a
sexual encounter and not a crime, and we regrettably tolerate this
behaviour. It's time to understand that marriage is founded on mutual
respect and trust rather than treating it as something sacred. Not
marriage but
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rather a relationship is sacred. In a marriage, “no” also signifies “no.”
Way Forward
The conclusion that marital rape is an universal social evil that has
severely affected India follows this lengthy and rambling explanation of
every facet of marital rape. It is important that the same be eradicated
from the nation. The crucial recommendations that can help you
accomplish that goal are as follows:
a. India needs to completely prohibit marital rape.
b. Both rape and marital rape must result in the same sentence.
c. In order to prevent marital rape from being considered as an
exception to the crime of rape, Exception 2 of Section 375 of the
Penal Code, 1860 must be repealed as it abridges Art. 14, 15, 19
(1)(a) and 21 of the Constitution.
d. Marital rape needs to be classified as a gender-neu trial crime.
e. Marital rape legislation must also include a mechanism for
punishment of the accuser in the event that false accusations of
marital rape are made.
f. To handle cases of marital rape, special fast track courts must be
established throughout India with female judges and employees.
It must be forbidden to hold such instances in the media.
References
1. A.V. Dicey, Law of the Constitution 193 (Oxford University Press
2013).
2. Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490 :
AIR 1996 SC 922
3. CR v. United Kingdom, ECHR, Ser. A. No. 335-C (1995).
4. Dr. Raj Kumar, Manish Dalal, Marital Rape in India: A Critical
Study, (May 16, 2021, 10:30 AM), https://
ssrn.com/abstract=3847118.
5. E.P. Royappa v. State of T.N., (1974) 4 SCC 3
6. Harshika Mehta, Marital Rape and the Indian Legal Scenario, 4
International Journal of Law Management & Humanities 756
(2021), 760.
7. Independent Thought v. Union of India (2017) 10 SCC 800
8. Penal Code, 1860, Act No. 45 of 1860, Acts of Parliament, 1860
(India).
9. Ishwar Singh, Et.Al, An Insight to Marital Rape, 2 Indian Journal
of Integrated Research in Law (2022).
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10. Joseph Shine v. Union of India, (2019) 3 SCC 39
11. K.S. Puttaswamy v. Union of India, (2018) 1 SCC 809
12. M.P., Indian Constitutional Law 888 (Lexis Nexis 2018).
13. NALSA v. Association of India (2014) 5 SCC 438
14. Prateek Mishra, Marital Rape and Violation of Constitutional
Provisions, 2 International Journal of Law Management &
Humanities 1 (2019), 2.
15. State of Karnataka v. Krishnappa, (2000) 4 SCC 75
16. State of Punjab v. Gurmit Singh (1996) 2 SCC 384
———
1
LLM Student, Christ (Deemed to be) University Bengaluru, Karnataka.
2
Ishita Singh, State of Women's Sexual Autonomy in India, HUMAN RIGHTS PULSE, (Jun 18,
2022, 10:02 AM), https:// www.humanrightspulse.com/mastercontentblog/state-of-womens-
sexual-autonomy-in-india
3
Ishwar Singh, et.al, An Insight To Marital Rape, 2 Indian Journal of Integrated Research in
Law (2022).
4
Dr. Raj Kumar, Manish Dalal, Marital Rape in India: A Critical Study, (May 16, 2021, 10:30
AM), https://ssrn.com/ abstract
5
Penal Code, 1860, Act No. 45 of 1860, Acts of Parliament, 1860 (India).
6
Prateek Mishra, Marital Rape and Violation of Constitutional Provisions, 2 International
Journal of law Management & humanities 1 (2019), 2.
7
Harshika Mehta, Marital Rape and the Indian Legal Scenario, 4 International Journal of Law
Management & Humanities 756 (2021), 760.
8
8 M.P. Jain, Indian Constitutional Law 888 (Lexis Nexis 2018).
9
A.V. Dicey, Law of the Constitution 193 (Oxford University Press 2013).
10
E.P. Royappa v. State of T.N., (1974) 4 SCC 3.
11
7 M.P. Jain, Indian Constitutional Law 881 (LEXIS NEXIS 2016).
12
Independent Thought v. Union of India, (2017) 10 SCC 800.
13
NALSA v. Association of India, (2014) 5 SCC 438.
14
Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490 : AIR 1996 SC 922.
15
State of Punjab v. Gurmit Singh (1996) 2 SCC 384 16.
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16
State of Karnataka v. Krishnappa, (2000) 4 SCC 75 17.
17
Joseph Shine v. Union of India, (2019) 3 SCC 39 18.
18
K.S. Puttaswamy v. Union of India, (2018) 1 SCC 809 19.
19
CR v. United Kingdom, ECHR, Ser. A. No. 335-C (1995).
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