After 72 years of independence of India, India is a country where we don’t have Uniform Civil Code, gender parity, and women in our society are still suffering from domestic violence such as brides being sold, child marriages, female foeticide, etc. Under section 375 of IPC that defines RAPE in which it includes non-consensual intercourse with women. But as per exception 2 of section 375, non-consensual sex by a man with his wife, the wife not being under fifteen year of age, is not consider as rape. IPC came into force in 1860, at that time married women were uncalled for as their personal entity. Expectation 2 of section 375 reflects the patriarchal society of that time which shows no homogeneity between man and woman at that time where women are not considered equal to men and exposed numerous social issues. The article elaborates the issue of Marital Rape in the deep rooted patriarchy.
There is a doctrine of Covertures in common law wherein the married women lose their entity after marriage and their legal rights and obligation are handed over to their husbands . Article 14 of the Indian Constitution ensures two expressions, “equality before the law” and “equal protection of the law” but Indian Penal Code discriminates against women by exempting her husband who has committed rape on her. But in the present, man and woman are like two wheels of a cart. Women also have personal entities and the right to live with dignity. For the protection of women’s rights, the Indian Parliament enacts various laws for their equal representation in society such as the “Protection of Women from Domestic Violence Act” and the “Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act.” Exception 2 of section 375 violates the right to equality enshrined in Article 14 insofar as it discriminates against married women by denying them equal protection from rape and sexual harassment. According to Article 14 classification must not be arbitrary. It should be based on intelligible differentia and that differentia must have a rational relation to the object. There is no reasonable ground to discriminate between a married woman and unmarried women, because of expectation 2 of section 375 a married woman, who is in an abusive relationship with her husband cannot escape. The husband is protected by the law and forces his wife to fulfil his sexual desire. If a husband builds a physical or sexual relationship with her wife without her consent, it isn’t considered rape as per the law.
Even today the consent of women doesn’t matter in our patriarchal society. The crime rate registered per lakh women population is 62.4 in 2019 (NCRB). Law related to domestic violence can not deal with marital rape. The punishment under The Protection of Women from Domestic Violence Act, 2005 is only nominal and cannot address the heinous crime of marital rape. The Verma committee has been constituted to recommend amendments to criminal laws. In Nirbhaya gang rape, Justice J.S Verma Committee laid down multiple important points for the protection of women and also recommended expectation 2 of section 375 IPC should be repealed. Committee had advised that the law should specify that a marital or another relationship between the perpetrator and victim cannot be a defence against sexual violation. The Criminal Law (Amendment) Act, 2013, does not provide any recommendation for marital rape. Exemption of marital rape shows that a wife is nothing but equal to his property to her husband. The Pan Rajput committee also recommended the same as the Verma Committee. According to UNDC reports, 75% of Indian women are facing problems related to marital rape. The United Nations Declaration on the Elimination of Violence against Women (CEDAW) recommended that the Indian government should criminalize marital rape. Only 36 countries have not criminalized marital rape, India is one of them. In our Indian Constitution, it is mentioned under Article 15 that State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. However till now as marital rape is not criminalized in India it shows that favours or the inclination of Indian society toward the men that how women are treated as a property to their husbands and the deep-rooted patriarchy that is still prevalent in India. Thus, the transformation of society, the Constitution as well as law need to be dynamic and the law needs to be changed. The court must criminalize marital rape and include it in Penal laws.
Exception 2 of 375 IPC also violates Article 19, which guarantees individual’s rights to speech and expression that result in curtailment of freedom of speech and expression of married women which is a fundamental right guaranteed under part 3 of the Indian Constitution. The Indian Supreme Court, in the case of the State of Karnataka v. Krishnappa, on the detailed analysis of Article 21 ruled that the Right to life includes health, privacy, and the right to live with dignity, safe living condition and safe environment. Sexual intercourse without the consent of the women is an inhuman act which undermines the purity of women and amounts to physical and sexual violence. In Simbu & Anr v. State of Haryana, the Supreme Court said that the offer of a rapist to marry the victim cannot be used to reduce the sentence prescribed by law.
A forcefully physical relationship contravenes Article 21 which provides FR to every person even whether the woman is married or not. In Justice K.S. Puttaswamy (Retd.) v. Union of India, the Supreme Court recognized the right to privacy as a fundamental right of all citizens and 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 objective of section 375 is to protect a woman from being raped and the person who commits rape be punished nonetheless husband, who does sexual intercourse without her consent gets absolved from any liability under the Criminal law due to the exception present in Section 375 is unjust and against the objective of Section 375 which is to protect the women from any type sexual and mental abuse. Any type of sexual intercourse results in the same suffering irrespective of the existing relationship between the parties.
It seems that for married women it’s hard to avoid the abusive situation because she is connected by law and supported financially by her husband as well as due to society’s acceptance she can’t raise her voice against sexual violence. As per National Family Health Survey, India (NFHS-4) 31% of married women are physically, mentally, emotionally and sexually tortured by their husbands. Survey also shows that of women between the ages of 15-49, 83% accepted that they faced being sexually abused by their husbands. About 70% of women in India are victims of domestic violence. National Crime Record Bureau’s (NCRB) ‘crime in India’ report was worrisome but not startling. Women in India are victims of domestic violence in which a majority of this part is covered under sexual violence by their husbands.
One of the arguments of the legislature against the criminalization of marital rape is that it affects the base of the marriage or shakes the basis on which the whole marriage is established and maybe an easy way to harass husbands. Before criminalising marital rape, first of all, the legislature should focus on raising the status of women through education, literacy, awareness, accepting women’s viewpoints or making an effort to seek them (women empowerment) so that women would be able to stand on their own feet, although the reasoning given by the legislature does not prove that marital rape is not a crime. In Indian society, it is believed that a husband cannot rape even if a woman was raped by her husband it is not considered rape, it is assumed that the right is given under the institution of marriage. Sexual relations are considered a duty of a married woman. The judicial system of western countries is well established and the process of proceeding is speedy but in the Indian judicial system, there are many loopholes such as a block of pending cases, Hardships of the undertrials, and no interaction with the society, etc. Indian judicial system takes a lot of time to conclude the final judgment. (Justice delayed is justice denied).
There is growing concern among lawmakers that if marital rape will be recognized as an offence then married women will start using it as a tool to implicate their husbands in false charges. Chances of misusing the law don’t defeat the need for having a law. Each legislation is capable of being misused and only on that ground the legitimate need for criminalizing marital rape cannot be ignored. The lack of conviction does not mean it was a false allegation. Right from the time of Justice Krishna Iyer’s judgments, it has been mentioned that as long as the court finds the woman’s testimony reliable it doesn’t need medical corroboration. 2013 amendments only crystallize the jurisprudence that was developing over 30 years. This idea that a woman will make allegations and the man will be convicted is false. The possibility of a false ground cannot be a ground to deny human rights, there could be false complaints about anything. We do not stop having laws as a result. As per current law, a wife is presumed to deliver perpetual consent to have sex with her husband after entering into marital relations. Once she gets married, she sold herself to this man who can rape her whenever he wants. Husband needs to have your consent every single time. Law needs not to enter the bedroom but what happens in the bedroom must be consensual, law needs to step in when the bedroom is one’s and not the other’s because the inherent basic human rights must come above the understanding of a family. The main argument there could be false cases and there could be false complaints. If the possibility of a false complaint was ground to deny a person their human rights what happens to every offence under IPC there would be false complaints in everything such as murder, theft etc.
In India, marriage is based on love, respect, security, safety and trust for each other. In a civilized society, a heinous crime such as rape has no place but the irony is that even today marital rape is allowed in our society. A total of 4,05,861 cases of crime against women were registered during 2019, showing an increase of 7.3% over 2018. A rapist remains a rapist regardless of his relationship with the victim. No compromise should be allowed in rape cases considering the depravity and turpitude of the crime. If marriage is an institution which allows a man to rape his wife, whenever he wants, then we need to reconsider our views on the institution of marriage itself. One of the main reasons for women to stay in abusive marriages is that they don’t have the economic independence to speak out against this “depraved act” of their husbands. Another reason is that the society in which they live is still male chauvinistic and patriarchal, which assumes that the wife is a servant of the husband and cannot act against the wishes of the husband, and this belief prevalent in the society act as societal pressure to wife to not protest against the wishes of the husband. Because of the result of marital rape, the woman has to deal with many sexually transmitted diseases such as HIV, AIDS, and uterus related problems. Due to marital rape, women have to face mental problems such as anxiety and mental stress. It could be hard to prove the lack of consent in the marital relationship but this is also applicable concerning live-in relationships and other rape cases too. Difficulty in proving the consent required for constituting the crime cannot be a justifiable ground to allow a husband to physically and mentally abuse her wife and commit rape whenever he desires.
To ensure the dignity and privacy of women, they should be allowed to take legal action against their husbands for the sexual harassment and violence committed in the marital relationship. Thereby, the exception provided under Section 375 which provides a license to a husband to commit sex whenever he wants, must be scrapped away from the IPC and declared as an offence and the wife should have legal recourse against the non-consensual sex performed by her husband. If we wait for our society to reach a level where everyone is mindful of consent and there is no case of marital rape at all that would be an idealistic society and achieving this state of affairs seems to be a far reality, as, for Indian husband, consent still seems an alien concept for committing intercourse with her wife. Society should promote gender sensitivity from childhood where men and women need to incorporate values of dignity, independence, and equality to ensure the respect for Individual autonomy of every person in a society. We need to make this a constitutional society where the core values of constitutionalism that is liberty, equality, fraternity and dignity should prevail over the patriarchal mindset. The argument is simple: if a woman has a basic right to dignity, she has the right to say ‘No’ to sexual acts without her consent irrespective of the relationship with the man.
 Jasmin Jose, “Independent Thought v. Union of India” Law Times Journal, 2019, available at: https://lawtimesjournal.in/independent-thought-vs-union-of-india/ (last visited June 15, 2021).
 “To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment,” 99 Harvard Law Review 1255 (1986).
 “Constitution of India Legislative Department | Ministry of Law and Justice | GoI”, available at: https://legislative.gov.in/constitution-of-india (last visited June 15, 2021).
“Sexual Harassment in the Workplace”, available at: https://www.ncsl.org/research/labor-and-employment/sexual-harassment-in-the-workplace.aspx (last visited June 15, 2021).
 “The Criminal Law (Amendment) Act 2013,” LII / Legal Information Institute, available at: https://www.law.cornell.edu/women-and-justice/resource/the_criminal_law_(amendment)_act_2013 (last visited June 15, 2021).
 “UNDC”, available at: https://undc.org/reports.html (last visited June 15, 2021).
 “Marital rape in India: 36 countries where marital rape is not a crime – Education Today News”, available at: https://www.indiatoday.in/education-today/gk-current-affairs/story/marital-rape-312955-2016-03-12 (last visited June 15, 2021).
 ILR 1994 KAR 89.
 Criminal Appeal Nos.1278-1279 of 2013.
 Writ Petition No. 494 of 2012.
 National Family Health Survey, available at: http://rchiips.org/nfhs/factsheet_NFHS-4.shtml (last visited June 15, 2021).
BY PRIYA RANJAN & CHETNA PRIYAM | ICFAI LAW SCHOOL