India is one of the very few countries where Marital Rape has not been criminalized. The Patriarchal origins of the Indian society can be factored in as the main cause for the ignorance of a wife’s bodily autonomy and consent.
Despite 72 years of independence, the women in our country are not truly free and independent, they live constantly with fear of one kind or the other. It indeed shows the gloomy reality of India. The country where, thousands of women are worshiped as goddesses, ironically thousands are raped. Raped by strangers, raped by someone known, raped by a family member but what happens when a woman is raped by her own husband?
As Indians, we are taught that marriage is a sacrament and a wife is expected to fulfill all the wishes of her husband which includes agreeing for sex. His sexual appetite is the responsibility of a wife which she has to bear even if she is not at all interested in doing so. Then the word adjust is often used by our society to persuade women to bear all those sufferings in which a rape victim suffers in the hands of her husband. Women’s independence, integrity, dignity, right to live, all and everything are negotiable; sometimes she is staked and diced as a possession. Women cannot speak of this issue to anyone and in our country, no law considers this as a legal offence. As per the judiciary, Marital rape cannot be made a criminal offence as it could become a means of de-stabilising the institution of marriage and could turn into an easy tool for harassing the husbands, as it is already been witnessed that Section 498A of the IPC has been misused at occasions and has become an easy tool by wife for harassing her in-laws. (1)
Section 375 of the Indian Penal Code lays down the definition of rape which includes all forms of sexual assault involving nonconsensual intercourse with a woman. However, Exception 2 to Section 375, exempts unwilling sexual intercourse between a husband and wife from the ambit of the offence, the wife not being under fifteen years of age. The country’s laws on one hand urge every girl child, below 18 years of age, to be protected at all costs but through this legislature, indirectly legitimize child marriage of all those girls who are married between the age of 15-18, and even forced intercourse with her if she’s above the age of 15. The exception has made an unreasonable differentiation (2) between women not only on the basis of their marital status but also their age. The exception is a clear violation of Article 14 and 21 of the Indian Constitution.
Article 14 ensures that “the state shall not deny to any person equality before law or the equal protection of laws within the territory of India”, yet the Indian Criminal Law, discriminates against female victims who have been raped by their husband as against female victims who have been raped by other males. Further, classification is not based on an intelligible differentia. The victims of marital rape can get a protection under The Protection of Women from Domestic Violence Act, 2005 and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, but not under Indian Penal Code.
Exception 2 as provided in Section 375, is also a violation of Article 21. Article 21 states that “no person shall be denied of his life and personal liberty except according to the procedure established by law”. The Supreme Court in its judgment in The State of Karnataka v. Krishnapa (3), held that “sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female and that non-consensual sexual intercourse amounts to physical and sexual violence”. Later, in Suchita Srivastava v. Chandigarh Administration (4), the Supreme Court held the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity comes under Article 21 of the Constitution.
More recently, in the case of Justice K.S. Puttuswamy (Retd.) v. Union of India (5), the Supreme Court held ‘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.” Forced sexual cohabitation is a violation of that fundamental right. (6) From the above rulings it can be said that forced sexual activity even by a husband is in violation of Article 21.
India is one of the very few countries that have not criminalized marital rape. According to the National Family Health Survey of India, 40% of women in the age group of 15-50 have experienced physical, emotional or sexual violence by their husbands. (7)
Our society is changing continuously and so our laws should as well. One such change needed desperately is the criminalization of Marital rape. The private bill titled ‘The Women’s Sexual, Reproductive and Menstrual Rights Bill, 2018’ introduced in the Lok Sabha by Congress MP Dr Shashi Tharoor was turned down. The bill made marital rape a crime and gave more decisional autonomy to women in the termination of pregnancy. Various reasons were given and the parliamentarians argued against passing of the bill.
To conclude, I make the following suggestions:
- We should move towards criminalization of marital rape and not treat it as a taboo.
- Amendment in the procedural and evidential laws to incorporate such norms as maintenance and other such rules as a consequence of marital rape.
- The spouse against whom the act of marital rape has been committed will be entitled to maintenance and it should be one of the grounds to grant divorce.
- Rape as well as Marital Rape ought to be a Gender-neutral offence. The definition of rape is currently biased towards one gender, however the possibility of husbands also being raped or forced into sexual activities should not be overlooked.
Rape of any women, irrespective of the marital status is a violation of her bodily integrity and dignity. With change in laws like adultery and LGBTQ rights, marital rape must be criminalized as well, at the earliest so that our society does not have to wait for another Nirbhaya or Priyanka Reddy magnitude of tragedy to bring about a wave of revolution in our country.
(1) Arnesh Kumar V. State of Bihar, SC Criminal Appeal no. 1277 of 2014, Cr. No. 9127 of 2013
(2) Reasonable classification was given by the Supreme Court in: Budhan Choudhary v. State of Bihar, AIR (1955) SC 191(India) and State of West Bengal v. Anwar Ali Sarkar, AIR(1952) SC 75(India)
(3) AIR (2000) 4SCC 75
(4) AIR (2008) 14 SCR 989
(5) AIR (2017) SC 4161
(6) AIR (1975) SC 1378
(7) National Family Health Survey (NFHS-30), International Institute for Population Sciences, Ministry of Health and Family Welfare Government of India, Vol 1 (2005-06), https://dhsprogram.com/pubs/pdf/FRIND3/FRIND3-Vol1AndVol2.pdf