Updated: Mar 14
In a patriarchal society like India women are still perceived as baby making machines it is an ideology that after marriage women has no right to bodily autonomy rather a married woman has a duty to please her husband when he wishes to by indulging in sexual intercourse this notion which prevails among the society is responsible for marital rape .Women became the victims of rape and the perpetrator is none other than but her own husband when a woman is raped she has to live with the memories of that fateful incident but when a woman is raped by her own husband she has to live with the rapists The retention of the exception of marital rape has assured women in their marital bond of being exposed to sexual perversion at the hands of their animalistic husband and their body, soul and mind becomes objectified.This article provides the penetrative analysis of this issue.
Marital Rape refers to rape committed when the perpetrator is the victim’s husband. It is too often understood as an oxymoron due to the fact that the thought of permanent consent underlines the legal and cultural definition of sex in marriage. Marriage is considered as a sacred institution in our culture. It is wrong to believe that the consent for sexual intercourse with the wife is obtained by the husband when she has consented for marriage. Marriage is not a license to rape one’s wife.
Marital rape is also called as spousal rape done by a husband upon his wife. It is an immoral
act where a man engages in undesired sexual intercourse with his wife. It is non- consensual sexual intercourse by a husband with his own wife. Rape within the marriage agonises the woman to the very core. It is considered as one of the most reprehensible offences which obliterates the main covenant of marriage, that is, consensus. Despite of prevalence of marital rape, it has received less attention from criminal law justice system, social activist, legislators, legal practitioners and society at large.
Section 375 of the Indian Penal Code (IPC),1860 exception 2 states, “Sexual intercourse by a man with his own wife, the wife not being under the age of 15 years of age, is not rape.” It
decriminalizes marital rape in India. It is a catastrophic provision of law which does not state
any reason for the exclusion of sexual intercourse or sexual acts between a man and his wife
from the purview of rape. The exception under section 375 has a narrow purview as it deals
with the offence of rape in marital bond if the wife is 18 years of age or above. Marriage is a
bond of trust and affection and unwilling sexual contact without consent amounts to criminal
offence. Married women became the victim of their husband’s lust .Spousal rape is hidden
within the iron curtain of marriage. Marital rape is the most repugnant form of masochism in
the Indian society.
According to Morton Hunt, an American psychologist who is considered one of the first to engage with the issue of marital rape, “the typical marital rapist is a man who still believes that husbands are supposed to rule their wives. This extends, he feels, to sexual matters: when he wants her, she should be glad, or at least willing, if she is not, he has the right to force her. But in forcing her, he gains far more than a few minutes of sexual pleasure. He humbles her and reasserts, in the most emotionally powerful way possible, that he is the ruler;The implied consent theory as justification for irrefutable presumption of consent between married couples is thought to exist in the institution of marriage. Marriage is considered to be a civil contract and consent for sexual activity is considered to be a defining element of this Contract.
ORTHODOX VIEWS PREVALENT IN THE SOCIETY
The exemption of marital rape is traced down to 1600’s where according to jurists Lord Hale “ A husband cannot be guilty of rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract that the wife hath given up herself, in this kind unto her husband which she cannot retract’’.This gave birth to the doctrine of implied consent once married .However today the society has changed and women are seen at par with men and their status has changed since the Victorian era when this was said . Law is dynamic, it cannot remain
stagnant it needs to evolve with the society hence the time has come to move away from this barbaric principle and criminalise marital rape.
Marriage in our culture is considered as a sacrament, it is a union of two individuals into a bond of lifetime and by criminalising marital rape it will destabilise marriage. Other view is that by making marital rape an offence it will unnecessarily harass the husband. The other traditional justifications for the marital exemption were the common law doctrines that a woman was the property of her husband and that the legal existence of the woman was ‘incorporated and consolidated into that of a husband’.
ARGUMENTS ADVANCED AGAINST THE ORTHODOX VIEWS
The argument that by criminalising marital rape the institution of marriage will be destabilized is illogical. It already got ruined the moment a wife was raped by her husband. Criminalisation of marital rape will be a remedy for the wife to come out from the clutches of her animalistic husband .One cannot let the heinous crime of rape be done under the view that marriage is sacred. It is a high time to understand that when two persons who are married are given equal rights over their bodies then only the sacred institution of marriage can thrive. The notion that bringing marital law within the purview of marriage will destabilise the marriage needs to be eradicated from the society in order to protect the women from the clutches of their husbands.
Marriage doesn’t refer to the wife giving consent to all matrimonial obligations including sexual intercourse. A woman’s consent is required each time before indulging in sexual conduct no matter if she is married or not. A man cannot force himself upon his wife. Marriage is considered a sacred bond not a sacred bond where the woman always has a fear and trepidation of being sexually harassed by her husband. Decriminalisation of marital rape implies that human dignity is given lesser value in case of married woman.
VIOLATION OF THE CONSTITUTIONAL RIGHTS
Marriage is considered to be a sacred institution and deeply personal where the State is hesitant to interfere with such delicate space. However, in certain instances it becomes necessary for
the State to interfere in the private sphere in order to protect the fundamental rights. Marital Rape violates the fundamental rights of the individuals under Article 14 and 21 of the Constitution. Exception 2 of section 375 Indian Penal Code,1860 is a direct contravention of human rights regulations. Article 14 of Constitution states, “Equality before law -The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.”
The two requisites of a valid classification were laid down by the Supreme Court, as early as in 1952: -
The classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others; and
The differentia must have a rational relation to the object sought to be achieved by the legislation.
Supreme Court held in “Sube Singh v. State of Haryana that the state’s failure to support a classification on the touchstone of reasonability, with the existence of intelligible differentia or the rational basis of achieving a stated object, will be ground for it to be held arbitrary and unreasonable.”
This exception of marital rape violates Article 14 of the Indian Constitution as it creates an unreasonable classification and artificial distinction between a married girl and an unmarried girl. This distinction is arbitrary, unreasonable and unfair; there is no rational basis for distinguishing between marital rape and non-marital rape. In Budhan Choudhary v. State of Biharit was stated that there must be a nexus between the basis of classification and the object of the Act under consideration. Marriage does not presuppose the consent for every sexual activity. When other forms of violence have been criminalised, the argument for non criminalisation simply to protect the institution of marriage when fundamental right is at stake is vague. Hence, the exception is arbitrary.
Article 21 states that “no citizen shall be denied right to life and personal liberty except for the procedure established by law.” Life means ‘something more than mere animal existence. In Maneka Gandhi v. Union Of India it was held that the right to life is not merely confined to physical existence but it includes within its ambit the right to live with human dignity. Bodhisattwa Gautam v. Subhra Chakraborty, offence of rape was held to be a violation of the right to life guaranteed under Article 21 of the Constitution of India. Fundamental rights are superior to any other right guaranteed by any statue. Right to abstain from sexual intercourse is a long recognised principle of Indian constitutional jurisprudence In Suchita Srivastava and Another v. Chandigarh Administration it was held that the right to make choices regarding sexual conduct is within the scope of right to personal liberty under Article 21. Marital rape violates right to live with dignity right to privacy right to good health right to bodily self-determination which are all species of right to life under Article 21.
Right to live with dignity: The Supreme Court has held in a catena of cases that the offence of rape violates the right to life and the right to live with human dignity of the victim of the crime of rape. marital rape is strict violation of dignity of a woman.
Right to sexual privacy: Right to privacy is an intrinsic right under Article 21 of the Constitution The Supreme Court in the case of State of Maharashtra v. Madhkar Narayan has held that every woman was entitled to sexual privacy and it was not open to any and every person to violate her privacy as and when he wished or pleased. A husband cannot obtrude on her privacy. In State of Karnataka v. Krishnappa,it was held that “sexual violence apart from being a dehumanizing act it is an unlawful intrusion of the right to privacy and sanctity of a female.”
Right to good health: Every person has a right to good health and this right is violated when a woman indulge in unwanted sexual intercourse as she suffers injuries in her private parts have
bruising fatigue vomiting and marital rape further leads to miscarriages still births bladder infections infertility and also results into sexually transmitted diseases. The marital exemption doctrine effectively deprives a married woman of her right to good health and is hence, unconstitutional.
The marital exception of rape also does not pass the test of “just, fair and reasonable” law and hence is violative of both Articles 14 and 21 of the Indian Constitution. Despite this it is still a crime in India. It is correct to say that the fundamental rights of married women are expropriated.
India can no longer afford to hold on to a regressive and archaic law especially when the Constitution provides for egalitarianism by giving equal rights to men and women.The ideology that once consent given to marriage then the consent has been given for bodily autonomy also should be eradicated. The non-intervention of state in the family system denies the married women the right to dignity, autonomy and bodily integrity. Hence the exception 2 should be deleted and marital rape should be criminalized in India.
 Hale, History of Pleas of the Crown, p 629. 1 Blackstone's Commentaries [1966 ed.], p 430  State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75, 80.  AIR 2001 SC 545, 548.  AIR (1955) SC 191.  Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802, 811  AIR 1978 SC 597.  (1996) 1 SCC 490; Rly. Board v. Chandrima Das, (2000) 2 SCC 465.  Govind v. State of M.P ,AIR 1975 SC 1378 , Kharak Singh v. State of U.P.,19633 AIR SC 1295.  (2009) 14 SCR 989.  The Chairman, Railway Board v. Chandrima Das¸ AIR 2000 SC 988.  Justice K. S. Puttaswamy (Retd) and Anr. v. Union of India and Others, Writ Petition (Civil) No. 494 of 2012.  AIR 1991 SC 207.  (2000) 4 SCC 75.
Author- Aashita Jain
Student at IIMT AND SCHOOL OF LAW, IP UNIVERSITY