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“Marital Rape - A Quest for Justice”

Article submitted by POOJA, 4th year, BBA; LL.B (Hons), SASTRA Deemed to be University.

Marital Rape - A Quest for Justice

A woman has the right to make her own decisions in every minute details for her life. Marriage brings a consensual and contractual relationship between the woman and her companion. She gains equal liberty as the man in her married life. The two people are bonded throughout their life till death except for the cases of judicial separation. In this society, most of them treat the women in their family as a property they own, after marriage they treat as if they are transferring the property to her husband. She is considered as a chattel to serve her husband and produce children. The brutal custom followed in our patriarchal society leads the most worthless men to exercise superiority over women. In India, marital rape is one of such loopholes in our justice system which has not yet been criminalized even though the “right to abstain from sexual intercourse is a long-recognized principle of Indian Constitutional jurisprudence”.[1] A statistical analysis shows that one of 8 married women are subject to marital rape.[2]

Battle of the lonely victims

The orthodox view of the society is that criminalization of spousal rape will destroy the theology of marriage institution. They believe that marriages are sacrosanct and it should not be interrupted by punitive laws. The Judicial body also fears that criminalizing the spousal rape will lead to misuse of law and it can be an easy tool in the hand of the women to harass their husbands. Forced sexual acts after marriage are not considered rape and it's hard to prove that non-consensual sex has taken place. The Union Government itself is the stubborn obstacle in the way of criminalizing marital rape. In Emperor v. Shahu Mehrab case[3], the husband's rash and negligent sexual intercourse with the minor wife have led to her death. Despite the indefinite number of writ petitions filed challenging the exemption of Section 375, the government continues to protect the men who rape their wives.

They argue that punishing marital rape will be against Indian culture. Once the woman is married, they say it is implied that she has given perpetual consent, a continuous never-ending sexual consent to her husband. The government contemplates that Indian society with a huge amount of customs and religious notions cannot adopt and adjust to this kind of law. They resist to blindly follow western customs. Unlike the western countries, the majority sector of people in India are illiterate and poor, so the government recklessly believes that a good Indian wife will consent her husband for sex in her whole life. The question that arises here is that whose rights is the government protecting? The husbands who rape their wives and invade violence in their married life?

The victims fight against all these battles lonely without any judicial support. Marital rape brings in long-lasting consequences in the life of women. Family is always considered as the safest place in the world but it destroyed by their husbands and they have to live a life where there is no respect, no consent, and no love. Marriage does not imply that women are a consenting party in their consensual relationship. The moment when a husband forces himself on his wife without consent, the sanctity of marriage custom in the society is lost.

Violation of the Indian Constitution by the non-criminalized crime.

Section 375 of the Indian Penal Code codifies the term of rape as all forms of sexual assault without consent. The exception of this law is unwilling sexual intercourse with a wife under age 15 years. India is among the 36 countries that are yet to criminalize marital rape.[4] After flooded with many writ petitions challenging the exception, recently the Supreme Court has extended the age limit of 15 years to 18 years.[5] After this judgment, the count of writ petitions has increased rapidly challenging against the constitutional validity of the exception.

Article 14 ensures equality before law and equal protection of the law without discrimination. This fundamental right has been violated by the criminal law in discriminating female victims by placing a barrier in punishing the men who have raped their wives. As the Indian Penal Code was drafted in the 1860s, when the women were considered as a chattel and her identity was recognized under her husband's identity, so the women did not receive any separate legal entity. This was called the doctrine of coverture in British colonial rule. But in the dynamic society with the overturn of the century, many laws have evolved to protect domestic harassment. Exception 2 of Section 375 of Indian Penal Code violates the right enshrined by Article 14, it creates a distinction between the married and unmarried women. In two leading cases they held that any distinction of classes which are created under article 14, is subject to some rational nexus for the objective for which they have been differentiated. But the marital rape exception destroys the essence behind Section 375 of the Indian Penal Code, which is to protect women from the inhumane act of rape. It does not satisfy the objective to be achieved. Therefore it fails the test of reasonableness and violates Article 14 of the Indian Constitution.[6]

Article 21 ensures that no person shall be denied of his personal liberty except the intervention of the law. The right to personal liberty includes the rights of privacy, dignity, and safe living conditions. Courts have even acknowledged the right to abstain from sexual intercourse in personal liberty. Sexual intercourse without consent is an intrusion of privacy and liberty of the female and amounts to sexual as well as physical violence.[7] The right to privacy is considered as fundamental right and decisions with sexual nature is a private matter and they have complete liberty to take any decision regarding it.[8] Even the healthy life ensured by Article 21 has been affected, marital rape intimidates the husband to involve in forced sexual activity which adversely affects the physical and mental health of the women. Therefore, exception 2 of Section 375 has to be struck down because it violates both Article 14 and 21 of the Indian Constitution.

The call for a reform in our legal system

In Vishaka guidelines[9], the Court has held the women have the right to privacy even in working environments. Then why not in their own family? We have celebrated around 72 years of independence but we are yet to give the true freedom to the women in our country. They continue to live under fear and darkness. The Indian legal system has still not recognized marital rape under the ambit of the law. Even though many countries have recognized and criminalized the offense, the Indian judiciary seems to neglect the heinous crime. The change has to be brought immediately, the exception of marital rape should be abolished. The law has to punish the perpetrator even though he is the husband of the victim. The defense of marital relationships with the victim should not be considered. Inquiries should be implemented as soon as the complaint is filed without contemplating the relationship between the perpetrator and the victim. The courts should not give lower sentences if the accused and the victims are married. The criminalization of marital rape is the need of the hour in our legal system.


History of marital rape is very complex, many changes have come into the aspect but India is yet to criminalize it like other few countries. As per the marital rape exception to Section 375 of the Indian Penal Code, any sexual intercourse of husband with his lawful wife not being under the age of 15, is not considered as rape. This exception of section 375 is a clear violation of her fundamental rights to equality and personal liberty. Our constitution which ensures the right to equality has not yet criminalized this sinful crime. Some people are still against criminalizing marital rape because they believe that it may destroy the institution of marriage. The differentiation made between marital rape and stranger rape has to be abolished. The society and the legislators should recognize the women's rights even within her marriage then only criminalizing the offense would be easy. Women in our country are still exploited by her family and society. She should be considered as a human being and not merely a chattel. The patriarchal society uses marriage as a license to legally unwilling sexual intercourse. It is high time that women should be ensured with dignity and freedom over her body.

[1] Govind v. State of M.P, AIR 1975 SC 1378. [2] BOX, S., POWER, CRIME, AND MYSTIFICATION, (London Tavistock Publications, 1983), p.122. [3] AIR 1917 Sind 42. [4]Marital Rape in India: 36 countries where marital rape is not a crime”, INDIA TODAY, Mar. 12, 2016. [5] Independent Thought v. Union of India, (2017) 10 SCC 800. [6] Budhan v. State of Bihar, AIR 1955 SC 191 and State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75. [7] State of Karnataka v. Krishnappa, (2000) 4 SCC 75. [8] Justice K.S. Puttuswamy v. Union of India, AIR 2017 SC 4161. [9] Vishakha v. State of Rajasthan AIR 1997 SC 3011.



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