The research helps to learn more about the concept of marital rape and also helps us to understand various myths prevalent in the society that prevent it from being a criminal offense in India. This research also tries to answer two questions. Firstly, Is marital rape an offense in India? Secondly, what are the arguments behind marital rape not being an offense in India?
What is Marital Rape?
Section 375 of the Indian Penal Code relates to the offenses of rape. It defines rape as any form of non-consensual sexual intercourse by a man with a woman. But as they say, for every rule, there is an exception. Unfortunately, Section 375 of the Indian Penal Code also has an exception (2) which exempts a man from the act of any form of unwilling sexual intercourse with his own wife, the wife not being under 15 years of age. He wanted to and she didn’t is the best illustration that displays the dynamics of rape in marriages.
The extreme level of brutality is displayed when it takes place in your own family. Marital Rape is also known as Spousal Rape is an act of sexual intercourse between two spouses where the consent of one spouse is not present. Generally, it is experienced by women. In this day and age when it is 2021, India is among one of the 36 countries where marital rape is not considered a criminal offense.
In ancient India when the Indian Penal Code was drafted, the idea of marriage which prevailed was that women did not have an independent identity, rather she was considered to be a property of her husband. She was forced to live with her husband under the same roof in the house provided by him even if she did not want to. She did not have her say on anything and had to obey what her husband said. It was also considered that when the woman has given ‘consent to marriage’ she has also given ‘consent to sexual intercourse.
But society has failed to understand that there is a vast difference between these two expressions, therefore these two can’t be used interchangeably. The concept of marriage has significantly changed in today’s day and age but the same rigid form of patriarchal society still exists including an outdated IPC, which prevails from the Victorian era. Marriage was and still is considered to be a sacramental union between husband and wife because of which the wife cannot sue or ask for a divorce from her husband on the basis of marital rape. This depicts that the whole burden of maintaining the sacramental nature of marriage is on the wife while on the other hand, the husband has no responsibility of maintaining the purity of his wife as he considers the marriage as a certificate to fulfill his sexual desires without the consent of the wife.
In Independent Thought v. Union of India, the petition by the petitioner claimed that, according to, section 375 of the Indian Penal Code, a man who has any form of sexual intercourse with a woman who is under the age of 18, with or without her consent, will be guilty of ‘rape’. Every law in India takes into consideration the fact that a girl who is under the age of 18 is a child. But unfortunately, exception (2) of section 375 of the Indian Penal Code fails to comply with this.
It states that if a girl is between the ages of 15 to 18 and is married, then her husband can have any form of sexual intercourse with her even if her consent is not present and it will not amount to any punishment under the Indian Penal Code. This particular case deals with only some areas and not the overall issue of marital rape as it only talks about married and unmarried minor girls and the protection of, rights of the girl child.
Section 375 of the Indian Penal Code which defines or talks about rape was substituted by Criminal Law (Amendment) Act, 2013, on 3rd February 2013. This section explicitly defines a man is said to commit rape if he has sexual intercourse with a woman under any circumstances which are mentioned under the seven descriptions given in this section.
“Against her will
“Without her consent
With or without her consent, when she is less than eighteen years of age
As stated in exception (2) – Sexual intercourse or sexual act by a man with his own wife, the wife not being under fifteen years of age, is not rape.
The description mentions the fact that when a man has any form of sexual intercourse with a woman who is less than 18 years of age, irrespective of the consent, this will constitute rape but the exception on the other hand widely discriminates between the same category on the basis of age as in the exception if a man (husband) rapes a girl (wife) who is more than 15 but less than 18 will not amount to rape.
Is Marital Rape against Indian Culture?
This is one commonly used argument against the plea of criminalizing marital rape in India. It is said that this concept is totally against the Indian culture as it focuses more on marriage as a sacramental union between husband and wife, it is an eternal union and is not contractual, it is a meeting of two bodies as well souls which continues even after death. So, therefore, this concept of criminalizing marital rape will lead to more broken marriages and the law will not be able to protect the basic ideology behind the Indian culture.
Also, it becomes against Indian culture as this concept is followed mostly in western countries, where a totally different type of socio-economic environment exists. Another argument raised in this context is that a vast population in India is illiterate, uneducated, poor, and conservative and is mostly driven by the customs and beliefs which were prevalent in ancient Indian society unlike America or any other western country.
The risks of misuse
Criminalizing marital rape is often also criticized by saying that it will become an easy tool for women to harass their husbands. If the sexual acts between the husband and wife qualify to be marital rape or in other words if marital rape becomes a punishable offense then the power will single-handedly vest in the hands of the wife to decide whether it is marital rape or not.
This argument is contradicted by considering the points like even if some women misuse the law – what’s the judiciary for? The judicial system in India is competent enough to identify false marital rape accusations and complaints. The person who files such a complaint must be answerable according to law. Just because some women can possibly file false complaints the others who actually suffer this brutality cannot be made to suffer. Say, 10% of women will misuse this law but what about the other 90% who genuinely suffer from sexual harassment, and the mental and physical trauma post-non-consensual sexual intercourse that too from their own husband.
On one hand, people say that due to cultural aspect or cultural variability, making marital rape punishable won’t work as women in India are illiterate, uneducated, and poor, which totally contradicts the argument presented in this very sub-head that criminalizing marital rape in India would give women the power to misuse the law by which they will harass their own husband. How can a woman misuse the law when she hardly even knows the essence of that law?
Section 375 of the Indian Penal Code contradicts Article 14 and 21 which are provided by The Constitution of India. Article 14 talks about – “Equality before the law”, then why does this section create two categories of women based on whether they are married or not? This section clearly discriminates against them on the basis of their age as well as their marital status.
When a man has non-consensual sexual intercourse with an unmarried woman then it is considered rape but when a man (husband) has non-consensual sexual intercourse with a woman whom he has married then it does not fall in that category. Not criminalizing of marital rape encourages men to forcefully have sexual intercourse with their wife knowing that they won’t be made liable or punished for this. Married women face more agony as they have to live under the same house with her husband who is mentally and physically harassing them every day.
Just like section 9 of the Hindu Marriage Act, 1955 which talks about restitution of conjugal rights which means that when a person withdraws from the marriage without any reasonable cause the other person who is left behind can file a petition in the court of law for reinstituting the marital obligations. Then when the court finds all the statements mentioned in the petition true and valid then they order the respondent to live with the petitioner against his or her will. The constitutional validity of section 9 of the Hindu marriage act is questioned in the case of T. Sareetha v. T. Venkata Subbaiah.
This section has been a part of various constant debates in the parliament due to its contradictory nature with Article 21 of the Indian Constitution. Exception (2) of section 375 of the Indian Penal Code also lies under such a contradiction as it violates Article 21 of the constitution which talks about “Protection of life and personal liberty” as no person shall be deprived of his life or personal liberty except according to procedure established by law. Over the years the Supreme Court has expanded the area of this article saying that with the evolving society the area of law should also expand and evolve. This article not only limits its meaning till protection of life and personal liberty in fact it also includes aspects such as dignity, privacy, safe environment and health.
In Nimishbhai Bharatbhai Desai v. State of Gujarat, the wife accused her husband of inflicting torture and performing sexual activities without her consent on many occasions. This accusation was argued by the respondent’s counsel by saying that marital rape is not considered a punishable offense in India. The Bench of J.B. Pardiwala, J., “observed that a wife is not a chattel and a husband having sexual intercourse with his wife is not merely using a property, he is fulfilling a marital duty with a fellow human being with dignity equal to that he accords himself. He cannot be permitted to violate this dignity by coercing his wife to engage in a sexual act without her full and free consent.
Furthermore, the Court urged that the time is ripe that the legislature intervenes and goes into the soul of the issue of marital rape as it is a serious matter which unfortunately is not attracting serious discussions at the end of the Government.” The bench also stressed upon the point “It is time to jettison the notion of ‘implied consent’ in marriage. The law must uphold the bodily autonomy of all women, irrespective of their marital status.”
In Suchita Srivastava v. Chandigarh Administration, a married woman was forced to conceive and carry her pregnancy full term against her own will. This was because marital rape of women below the age of 18 and above 15 is not criminalized in the Indian Penal Code. The Supreme Court held that “the right to make choices about sexual activity is very much within the scope of rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.”
As the famous dialogue from the movie Pink says that – “‘No’ isn’t just a word it is a complete sentence. It doesn’t need any further explanation, No simply means No whether the girl is an acquaintance, a friend, a girlfriend, a sex worker or even your own wife. No means no and when someone says so, you stop.” The real meaning of marriage is not that a woman has given implied consent for any kind of sexual activity forever. The irrelevant ideology of protecting the sacramental union between the husband and wife is absurd as not criminalizing marital rape will not protect the sanctity of marriage instead it will damage the institution of marriage as non-consensual sexual intercourse violates the trust and confidence in marriage.
Rape is rape be it by an unknown third party or by a known party (husband). Perhaps various measures can be taken on our part which includes teaching basic civil behavior by including it in our curriculum, encouraging self-help groups both for men and women to spread awareness and sensitivity about the concept of marital rape. Women who face such kind of harassment take recourse under the Protection of Women from Domestic Violence Act 2005, instead of this new law should be made regarding the exception (2) of section 375, as it is unconstitutional in nature and the rights of women should be protected at all cost. It is high time for us to change now, as society evolves, the laws should also evolve with it.
Editor’s Note The author in this article takes a dive into the concept of marital rape and analyzes different myths present in India which prevent it from becoming a criminal offense. The author then presents arguments that are generally produced against the criminalization of marital rape such as it is against the Indian culture and the threats of it being misused. The author argues against these traditional ideas and concludes by advocating for a need for strong anti-marital laws in India.