Marital Rape In India: Are Societal Constructs a License To Rape?

The Supreme Court of India, in October 2024, questioning the logic behind the exclusion of marital rape as a criminal offence, questioned how preliminary acts of confinement, assault of a wife and criminal intimidation all amount to an offence, but the ‘act of forced sexual intercourse is alone not a crime’.

Illustration by The Geostrata

According to the National Health Family Survey, conducted in 2022, nearly one in three women has fallen victim to spousal sexual and physical violence. The very same survey further noted that 82% of the married women aged between 18-49 years, who experienced sexual violence, reported their spouse as the perpetrator. Across the globe today, 150 nations legally recognise marital rape as a crime, while India, a nation that prides itself on the milestones and progress it has achieved, maintains a deafening silence, a searing reflection of the brutal betrayal of women’s autonomy. 

Why does a woman’s protection against sexual assault come with its own terms and conditions? Why is rape considered a rape only when it does not disturb the sanctity of marriage and the societal fabric?

THE DEEP-ENTRENCHED ROOTS OF PATRIARCHY

The long-standing debate on the recognition of marital rape in India goes back to colonial times with the passing of Hale’s doctrine in the 18th century. Sir Mathew Hale, the British jurist, argued that a husband cannot be convicted of the crime of raping his own wife, as through the marriage contract signed between both parties, the wife has willingly given consent to sexual intercourse, which she cannot retract.

The very belief, reeking of deep-rooted patriarchy and the female gender defined as subordinate with no rights over their own body, stems from the doctrine of coverture, where a woman’s legal identity stands suspended post their marriage and her entire identity is reflected by her association with the spouse.

Ironically, while the British left this law as a parting gift to India, England itself, accepting social progress and justice, abolished the very same doctrine in 1991, in the historic R v R case, recognising marital rape and categorically stating that a rapist remains a rapist, irrespective of their relation with the victim. India today, under the Indian Penal Code, section 375, recognises rape as one of the most heinous crimes with punishment up to imprisonment for life; however, it has a legal loophole under exception 2 of the act. 

Exception 2 states that sexual intercourse by a man with his own wife shall not amount to rape, provided the wife has attained a certain age. Under the 2017 Supreme Court ruling in Independent Thought V Union of India, the Supreme Court raised the age cap from fifteen to eighteen years, thereby protecting minor married women from the atrocities; however, the very same leverage was not extended further to adult women.

A married woman today loses out on her right to consent, and cannot avail the same legal recourse as available to an unmarried woman. The exception of not recognising marital rape goes against the very foundation of the constitution, violating the right to equality, personal liberty and non-discrimination. 

Article 14, as enshrined in the Indian Constitution, ensures equality before the law and that each individual is entitled to protection by law. Not recognising marital rape created stark binaries between the fundamental rights as exercised by unmarried women, guarded under the constitution from sexual acts of violence, meanwhile married women, bearing the brunt of a lack of recognition. 

Further, there is no rational basis to distinguish between rape as a crime committed by a stranger and rape as a crime committed by a husband, creating false distinctions in recognising a crime as heinous as rape. Article 15 of the Indian Constitution prohibits discrimination based on race, colour, gender, and religion, and Article 21 reinforces the right to life, dignity and privacy of every citizen.

Exception 2 of Section 375 contradicts these very fundamental rights, as it is founded on patriarchal notions that subordinate women according to traditional beliefs, relegating them as mere properties of their husbands, deprived of any identity of their own.

Following the 2012 Nirbhaya Gang rape case, the central government established the JS Verma Committee, which recommended amendments to criminal law, strongly stressing criminalising marital rape, emphasising consent, a fundamental right no woman should be deprived of.

The very same suggestions were overlooked while passing the Criminal Law (Amendment) Act of 2013. Historically, the judiciary has often projected its reluctance in recognising marital rape and has reinstated time and again that passing constitutional laws into homes will be like ‘introducing a bull in a china shop’, in the famous Harvinder Kaur v Harminder Singh case.

While the same judgment has consistently been challenged by various other judgments, including the Sarita V Tvenkata Subaih, where the court observed that an individual’s right to privacy cannot be lost to marriage, however, further judgments such as Saroj Rani v Sudarshan Kumar Chadha, reinforcing the traditional view, reflect the hesitancy in recognising marital rape. 

The 2022 Delhi High Court split judgement has noted a significant development as Justice Shakdher observed exception 2 as unconstitutional, pinning the hopes on the Supreme Court to seal the fate of countless women. The new criminal laws, The Bharatiya Nyaya Sanhita 2024, emerged as a beacon of hope for recognising marital rape as a crime; however, the failure to acknowledge marital rape as a crime left countless disappointed. 

WHY DOES THE LAW HESITATE?

The rationale given for maintaining exception 2 of Section 375 of the IPC rests on the society’s foundational basis and the cultural values that build the idea of a marriage.

Critiques have often raised the concern over criminalising marital rape and how it may inevitably hamper the institution of marriage and lead to excessive state interference, dictating the private lives of individuals.

They have further raised the concern over the scope of misuse of the law, with women using the law to falsely implicate their spouses, since the ‘proof of force’ essential to interpreting a sexual intercourse as ‘rape’ may prove to be a daunting task, due to a lack of circumstantial evidence. 

POLICY RECOMMENDATIONS

While the fear of misuse of the law prevails with any fundamental right, a comprehensive approach is the need of the hour to ensure that while preventing one false case, we must not put ten other lives at stake. 

Amendment of Section 375: Exception 2 of Section 375 must undergo a comprehensive overhaul and must be removed, following Justice JS Verma’s recommendations, prioritising consent and recognising marital rape as rape. Marital Rape is unfortunately a searing reality of the current societal framework, reiterating the need for its removal, to ensure that the spirit of equality and justice as enshrined in the constitution is upheld.

Judicial Reforms: The protection of women from the Domestic Violence Act must further be strengthened, and the scope must be expanded to explicitly include marital rape as a crime. A punitive approach must be the way forward with stringent punishments, including lifetime imprisonment. Establishment of fast-tracked courts, emergency helpline numbers for women, and transparent medical and forensic report protocol must be reinforced. 

CONCLUSION

Marital rape in India, and the abject dearth of acknowledgement of the silent crisis and the lived realities of countless women today, puts the imperative need for a systematic restructuring and a calibrated approach by society as a whole back in the limelight. Concerted efforts must be made where under the pretext of saving the sanctity of the institution of marriage, women are not exposed to brutalities, hampering their very constitutional right to say no.

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BY ANANYA SHARMA

TEAM GEOSTRATA

info@thegeostrata.com