Rape is a type of sexual assault that involves the act of performing sexual activities on
another’s person without their consent. The rate of rapes committed is exorbitantly high
and increasing at alarming rates too. It is a criminal offense as per the Indian Penal
Code, 1860. Rape is covered under Section 375 of the IPC. The National Crime Records
Bureau’s “Crime in India 2019” report stated that in India, a woman is raped every 16
minutes, and every 4 minutes, she is subjected to cruelty at the hands of her in-laws.
Marital rape is understood as the offence of rape committed by a man against his wife.
In other words, when a man has sexual intercourse with his wife against her consent, it
is called marital rape. In India, there is no law that criminalizes marital rape. As such,
marital rape is said to be a legal way of committing a crime against a woman’s body, and
dignity as well.
Section 375 of IPC has a few exceptions, one among which states that when a man has
non-consensual intercourse with his own wife who is above the age of 15 years, it will
not be considered rape. Later on, this bar was increased to 18 years of age. It is argued
that this exception to the act of rape is preposterous. In a way, it turns a blind eye
towards the autonomy and agency of a woman over her body. The law also implies that
an unmarried woman has more rights on her body as compared to a married woman.
One may say that this is absurd and unjust.
The non-criminalized nature of marital rape dates back to the British era. The IPC was
formed a long time ago, during 1860. Back then, married women were not considered as
independent legal entities. Their identity was merged with that of their husband. The
IPC was drafted on the basis of Victorian patriarchal norms that did not consider men
and women to be equal. As per the Doctrine of Coverture, married women were not
allowed to own property and had to merge their identities with their husbands.
However, in R v. R, England criminalized marital rape in the year 1991. On the other
hand, no such developments are seen in this particular area in India.
The exception of Section 375 violates the fundamental Right to Equality as enshrined in
Article 14 of the Constitution. It differentiates between the married and unmarried
women by making it possible to victimize married women merely due to their marital
status while protecting unmarried women from the same offence.Therefore, two classes
of women are created.
This exception (2) of Section 375 defeats the spirit of the very own section. The purpose
of the section is to protect women and punish the rapists. Exempting husbands from the
punishment is against the objectives of the section. It has to be acknowledged that the consequences of the inhumane act of rape on a woman is the same, whether married or
otherwise. As a matter of fact, it is more difficult for a married woman to deal with such
a situation since she is legally, and to some extent, financially tied to her husband.
The exception is also violative of Article 21 which talks about the fundamental right to
health, privacy, safe living conditions, safe environment, etc. In State of Karnataka v.
Krishnappa, it was held that sexual violence, apart from being a dehumanizing act, is
also a violation of the fundamental right to privacy and sanctity of a woman. It was also
held that non-consensual sex amounts to sexual and physical violence. In another case,
Suchita Srivastava v. Chandigarh Administration, the Supreme Court equated the
right to make choices related to sexual activities with the fundamental rights to personal
liberty, privacy, dignity, and bodily integrity under Article 21.
The victims of marital rape rarely report about the abuse. An analysis of National Family
Health Survey (NFHS) 2015-16 stated that about 99.1% of sexual violence cases go
unreported. This survey also stated that an average Indian is 17 times more likely to face
sexual abuse by her husband than by others. However, those survivors of marital rape
who come forward with courage and report their abuse have protection under the
Protection of Women from Domestic Violence Act, 2005 and Section 498A of the IPC.
Section 498A deals with cruelty by husband or any of his relatives. Under this section, a
man can be imprisoned for 3 years and can also be made liable to pay a fine. However,
the most common remedy sought to by the survivors is under the Protection of Women
from Domestic Violence Act,2005, which recognizes non-consensual sexual activity as
punishable by the law. However, a magistrate under the law has no authority to
criminalize the inhumane act of a man raping his wife, neither can the man be
The United Nations Declaration on the Elimination of Violence against Women defines
violence against women as “any act of gender-based violence that results in, or is likely
to result in, physical, sexual, or mental harm or suffering to women, including threats of
such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or
private life.” In 2013, the UN Committee on Elimination of Discrimination Against
Women(CEDAW) recommended that the Indian government should criminalize marital
rape. The JS Verma committee set up in the aftermath of nationwide protests over the
December 16, 2012 gang rape case had also recommended the same. They believed that
by removing this law, women are going to be much safer from abusive spouses. Married
women will be in a position to receive help needed to recover from marital rape. This
will also have a retributive effect on abusive husbands who will fear the law and refrain
from committing a heinous crime such as rape.
Out of the total of 195 countries in the world, only 36 countries have not criminalized
marital rape, and sadly, India is one among these 36 countries. The fact that married men can get away with a crime as severe as rape is mind-boggling and simply
unacceptable. This whole problem again traces back to the patriarchal society we are
living in. Women were never considered at par with men. They were also subjected to
practices such as Sati. Back in the day, a girl was the property of her father first, and
then she belonged to her husband. But the times have changed today. Women all over
the world are building an identity of their own. They are working at par with men and
showing to the world that they are in no way weaker, or lesser than a man. At such a
time of empowerment of women, it becomes all the more necessary for the legal system
to back women up. It is ultimately the court of law that serves justice to everyone. This
faith on the judicial system should be maintained. Hence, it is of utmost importance that
marital rape be criminalized by the judicial system so that no one has to face injustice
only due to their gender, or marital status.