In India, every 16 minutes a woman gets raped. But, it does not mention whether it is talking about an unmarried or married woman. So why does the law differentiate between rape and marital rape? According to National Family Health Survey (NFHS) 2015-16, “the average Indian woman is 17 times more likely to face sexual violence from her husband than from others.” Then why a similar recourse of protection and justice is not available to an Indian married woman?
Indian Penal Code and the Indian Constitution
The rape is defined as follows in Section 375 of the Indian Penal Code: “An act of sexual intercourse with a woman without her consent, against her will, or under any kind of misconception or fear, then the man is guilty of rape.” However, exception 2 present nullifies the crime of marital rape. Exception 2 states that if a man has sexual intercourse with his wife who is not younger than the age of fifteen, then his actions would not be considered rape. The age limit of 15 was changed to the age limit of 18 by the Supreme Court judgement in the year 2017. Exception 2 gives husbands the full right to rape their wives legally.
Article 14 of the Indian Constitution “guarantees equal protection of rights to all its citizens.” In-State of West Bengal v. Anwar Ali Sarkar, the Supreme Court ruled that “under Article 14, any classification should be done on intelligible differentia and such differentia must have rational nexus with the object sought to be achieved.”The exception clause does not protect married women and discriminates against them, not based on intelligible differentia but their marital status.
Article 21 of the Indian Constitution states that “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” The exception clause violates the very spirit of article 21 as clear as a day. In fact, in Suchita Srivastava v. Chandigarh Administration, the Supreme Court said 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.”The exception clause 2 strips a wife of autonomy over her own body and reduces the concept of consent to nothing. By not criminalizing marital rape, the law has technically given the husband the “possession” of the body of his wife and can sexually abuse her with no fear of consequences. The exception clause 2 strips Indian married women of their equality, dignity and privacy.
The Indian Penal Code was developed by the British and the same has continued to this day. Even though, the United Kingdom itself in the year 1991 criminalized marital rape in the landmark judgment case R v R. The husband claimed that marriage gave him irrevocable consent and that he could not be convicted on the grounds of rape. The court refused his contention and said to establish the crime of rape, the relationship between the two-party stands immaterial. Lord Keith in his judgement, said that modern marriage is a “partnership of equals and the wife is no longer considered the subservient chattel of the husband”. In India, marriage is considered as the license of irrevocable consent for sexual activities and the barbarism continues till day.
Indian Government’s Reaction to Criminalization of Marital Rape
Out of the 36 countries in the world where marital rape has not been criminalized, India is one of them. In 2013, the United Nations Convention on Elimination of Discrimination against Women (CEDAW) recommended that “the Indian government should criminalize marital rape.” Several appeals have been made to the government to criminalize the offence of marital rape, unfortunately, all of them have failed. The J S Verma Committee was established by the parliament after the horrific incident of Nirbhaya gang rape and murder (2012). Criminal Law (Amendment) Act of 2013 was formulated based on this committee’s report. The government amended the IPC to add clauses that increased the age of consent, including acid attacks but not the criminalization of marital rape.
The report stated that “marriage is not an irrevocable consent to sexual intercourse.”According to this guideline, the kind of relationship shared between the perpetrator and the victim should be immaterial while dealing with the crime. In Lok Sabha, a private bill “Women’s Sexual, Reproductive and Menstrual Rights Bill, 2018” was introduced which criminalized marital rape, along with other things. The bill lapsed as it could not garner enough support.
The Indian Judiciary and Marital Rape
While the government tries to deny the crime of marital rape time and again, the Indian high courts have also given different reactions to different cases. The Kerala High Court in August 2021 allowed marital rape as a ground for divorce. The court noted “Treating wife’s body as something owing to husband and committing a sexual act against her will is nothing but marital rape. Right to respect for his or her physical and mental integrity encompasses bodily integrity, and any disrespect or violation of bodily integrity is a violation of individual autonomy.”A few days after this judgement, the Chhattisgarh high court acquitted marital rape by ruling that “sexual intercourse between a legally wedded man and woman is not raped even if it is by force or against the wishes of the wife.” The conflicting judgments between the Kerala and Chhattisgarh high courts are not something new.
Similarly in the year 2018, the Gujarat high court ruled that ‘non-consensual intercourse by a husband was not rape.’ That very same year, the Delhi high court noted that “both men and women have a right to say “no” and that marriage does not mean consent.” Different points of view made by the Indian high courts present a legal paradox. One would expect the Supreme Court to clear this confusion and present a socially-progressive outlook on this issue, but unfortunately, the Supreme Court too failed to separate itself from the years of patriarchy and misogyny. A woman had filed a petition in the apex court for the criminalization of marital rape in 2015, but it was dismissed based on that law shall not change for one person. In the Arnesh Kumar v. the State of Bihar, the apex court held that criminalising marital rape will be the “collapse of the social and family systems”.
Reasons for Non-Criminalization of Marital Rape
The aforementioned has proved that activate both the Indian Government and the Indian Judiciary have supported the non-criminalization of marital rape. The main reason given by both of them is that the criminalisation of marital rape is against the Indian culture and that it will lead to an ultimate breakdown of marriage and family. In 2019, Former CJI Dipak Misra said that marital rape should not be criminalised “because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values”. It is argued by them that unlike in other countries, where marriage is a contract, in India it is a solemn concept. Interfering with it will make us lose the Indian culture and traditions. The question here arising is at what cost the government and judiciary are protecting marriage. 2/3rd of the women in marriage face sexual abuse and forceful sexual intercourse which would be termed as rape if they were not married. Inaction to criminalise marital rape sends a message that it is okay for husbands to violate their wives sexual consent any time they want.
Another reason is that women may misuse the law if marital rape is criminalized. Females would falsely accuse their husbands as whether the sexual intercourse was forced or not will be based on the wife’s discretion. However, it is important to note that a judge will preside over a case before giving any judgement. It will be the duty of the judiciary to weed out the false cases. Just because of the possibility that few women may misuse the law we cannot let the women who are suffering continue their suffering by not providing them with a course of law and protection.
A woman marries and enters into a family leaving behind her own safe space that she has been in since the day she was born. If this institution of marriage cannot give her the dignity, safety and consent that she deserves, the state has to intervene in the matter immediately. The free pass given to the husband for sexual intercourse is a complete denial of women’s basic fundamental right to quality life and dignity. Women are not a piece of property but a soul with their rights. And the government needs to make sure that these rights are in place. Hence, it is high time that government and the judiciary together work to protect women’s integrity, dignity and allow them to live their lives with grace in the realm of home too and stop this atrocious crime.
Author(s) Name: Tanvi Srivastava (ILS Law College, Pune)
The Economic Times. 2022. NCRB’s report reveals a rape happens every 16 minutes in India; UP tops list of crimes against women. [online] Available at: <https://economictimes.indiatimes.com/news/politics-and-nation/ncrbs-report-reveals-a-rape-happens-every-16-minutes-in-india-up-tops-list-of-crimes-against-women/videoshow/78440875.cms?from=mdr> [Accessed 4 February 2022].
Bhattacharya, A., 2021. Supreme Court recognises sexual right of all women. So how is marital rape still legal?. [online] The Print. Available at: <https://theprint.in/campus-voice/supreme-court-recognises-sexual-right-of-women-how-is-marital-rape-still-legal/725574/> [Accessed 4 February 2022].
Indian Penal Code, 1860 S 375, No. 45
The constitution of India, 1950. art. 14
 The State Of West Bengal v. Anwar All Sarkarhabib, 1952 AIR 75, 1952 SCR 284
The constitution of India, 1950, art. 21
Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1.
 94 Cr App R 216 (1992)
Singh, AnirudhPratap, the Indian Express. 2022. The impunity of marital rape. [online] Available at: <https://indianexpress.com/article/opinion/columns/the-impunity-of-marital-rape/> [Accessed 4 February 2022].
PRS Legislative Research. 2022. Committee Reports. [online] Available at: <https://prsindia.org/policy/report-summaries/justice-verma-committee-report-summary> [Accessed 5 February 2022].
Tribuneindia News Service. 2022. Treating wife’s body as owing to husband is marital rape: HC. [online] Available at: <https://www.tribuneindia.com/news/nation/treating-wifes-body-as-owing-to-husband-is-marital-rape-hc-293993> [Accessed 5 February 2022].
India Today. 2022. Sexual intercourse between man and wife is not rape even if by force: Chhattisgarh HC. [online] Available at: <https://www.indiatoday.in/law/story/sexual-intercourse-man-wife-rape-force-chhattisgarh-hc-1845530-2021-08-26> [Accessed 5 February 2022].
Nimeshbhai Bharatbhai Desai v. State of Gujrat 2018 SCC OnLine Guj 732,  65.
The Economic Times. 2022. Delhi High Court: Marriage doesn’t mean consent for sex: Delhi High on marital rape. [online] Available at: <https://economictimes.indiatimes.com/news/politics-and-nation/marriage-doesnt-mean-wife-always-ready-for-sex-delhi-high-court-on-marital-rape/articleshow/65034722.cms?from=mdr> [Accessed 5 February 2022].
Arnesh Kumar v. State Of Bihar, 8 Scc 273, (2014)