Marital Rape, in simple words, refers to the situation where sexual intercourse lacks consent and is forcible. Section 375 IPC defines rape, a man is said to commit rape if he has sexual intercourse with a woman forcefully, against her will, without her consent, by fraud or misrepresentation, coercion, or when she is intoxicated or is of unsound mind. Exception 2 of this section says “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” Marital Rape is criminalized in almost 150 countries across the globe, still, 32 countries including India are remaining to do so. Marriage doesn’t give license to the husband to have forceful sexual activities with the wife without her consent. A Rape is a Rape no matter what the relationship the offender and the victim hold. A married woman has equal rights to that of a non-married woman. In this blog, we will be looking into the various aspects of marital rape and why the governments have failed to strike down the marital rape exception till now, and what are the views of those who are opposing this removal.
Why union has refrained from striking down the exception till now
The 172nd Law Commission Report, 2000, looked into the demand for deletion of this exception, but it was ignored on the ground that it may harm the institution of marriage and this step might be excessive interference in the marital relationship between a husband and wife. In 2013, after the heinous Nirbhaya Gang rape case in December 2012, Justice JS Verma panel was constituted to recommend amendments for quick trials in cases relating to sexual abuse. This committee also suggested that marital rape should be criminalized and the removal of the exception from section 375. The panel was of the view that Marriage should not be viewed as a forever binding agreement to engage in sexual activities and that the relationship between the victim and offender doesn’t hold any value in non-consensual sexual intercourse. However, this was also not accepted by the then UPA govt.
In response to a clutch of petitions demanding criminalization of marital rape, the NDA government submitted an affidavit to Delhi HC in 2017. It is said that this may destabilize the institution of marriage and will become an easy tool for a woman to harass their husband. Section 498A IPC which deals with domestic violence to a woman by their husband or in-laws is already being misused and false cases of domestic violence are being registered. Because of many factors such as literacy, lack of financial empowerment of the majority of women, societal mindset, huge diversity, poverty, and so on, India has its own specific challenges that should be thoroughly considered before criminalizing marital rape.
Recent Hearings in Delhi High Court
The Delhi HC is constantly hearing multiple petitions filed in 2015 by NGO RIT Foundation, AIDWA (All India democratic women’s association), and two other individuals which demands that the marital rape exception must be removed. Discussing the possible reasons for the exception under Article 375, Justice Shankar said, if a boy and a girl are not married, howsoever close their relationship may be, neither of them has any right to expect sexual congress with the other. Both have the absolute right to say no to having sex. In a marital relationship, there’s a qualitative difference. There exist sexual expectations from the partner. Justice Shankar also told Advocate Karuna Nundy, appearing for one of the petitioners that the court cannot strike down legislation merely because it has been struck down in other countries. Advocate Karuna Nundy in her written submission said that this exception is inconsistent with the fundamental rights granted under Articles 14, 15, 19, and 21. She argued that this exception violates the woman’s right to liberty, bodily integrity, sexual autonomy, and self-expression guaranteed under the constitution, and hence marital rape exception should be struck down.
Delhi government’s stand
Advocate Nandita Rao argued that the marital rape exception doesn’t compel women to have sexual intercourse with their husbands, and they are not remediless. They have other remedies available including filing a case under section 498A IPC and seeking a divorce. Hence, the existence of this exception in the IPC doesn’t violate her rights granted under Article 21. Here Justice Shakdher said that if the husband still imposes himself even after the wife says no, the offence has been committed. Just because she has other remedies available, doesn’t mean that it’s not violative of her rights. Senior advocates Rajshekhar Rao and Rebecca John, amicus curiae in the present matter have supported the petitions and are of the view that this exception should be struck down. Rajshekhar Rao said that in the case of sex workers also reasonable expectation of sex exists, but they do have the right to say no and their consent is required. Referring to the ‘R v R’ casein which marital rape was criminalized in England, Rebecca John argued that consent is necessary no matter whether a woman is married or not. He also argued that expectations of conjugal relation cannot lead to men having forceful sex without the consent of their wives.
Opposing the batch of petitions, The Men’s welfare Trust has argued that the legislature should only take a decision on this matter, and it should be kept out of the court’s domain. To which Justice Shakdherand JusticeShankar said that people are coming to us with a problem and we cannot fold our hands, sit and say that this is the job of the legislature and do nothing. NGO Hridey also opposed the removal of this exception saying that the institution of marriage cannot be compared with sex workers, there’s a difference in the relationships. Non-consensual intercourse cannot be labelled as rape, at worst it can be called sexual abuse. Tushar Mehta, Solicitor general of India, told the High court that the central govt has called for suggestions from various stakeholders regarding this matter and that the central government is looking for a constructive approach for the amendments. The Delhi HC has directed the central government to come and clear their stand on the issue within two weeks. Hearing on the matter will resume from 21st February.
India is growing at a fast pace and competing with the world in various other fields and has framed many laws which protect women’s rights and give them equality, but it still lacks behind when it comes to addressing the marital rape issue. In the past, a woman was considered as the property of her husband, and her marriage was seen as a mere transfer to another guardian. A woman doesn’t lose her right to say no after marriage. If two individuals decided to live life together and cohabitate, this does not mean that they can have forceful sex when the other partner is not willing to do so. Consent cannot be assumed or implied if a woman marries. Marriage does not give the husband ownership of the wife’s body. Petitioners argue that govt is only wasting time in consultations and the judiciary is their only hope to strike down the exception. Just because there is apprehension that women will misuse the law doesn’t mean that we should not have the same. Judiciary is there for giving punishments to those lodging false cases. Marital rape is clearly against a woman’s modesty and violates their fundamental rights. The central government should soon come up with a decision that helps married women and uphold their dignity.
Authors Name: Bhaskar Upadhyay & Abhinav Mishra (Dharmashastra National Law University, Jabalpur)
  94 Cr App R 216.