Marital rape, defined as non-consensual sexual intercourse by a husband with his wife, remains a contentious and unresolved issue in India. Despite growing advocacy and judicial scrutiny, India continues to exempt marital rape from its legal definition of rape, making it one of the few countries where such an exemption persists.
The Legal Landscape
Under Section 375 of the Indian Penal Code (IPC) currently section 63 of the Bharatiya Nyaya Sanhita (BNS), rape is criminalized; however, Exception 2 to this section states that sexual intercourse by a man with his own wife, provided she is not under 18 years of age, does not constitute rape . This legal provision effectively grants immunity to husbands, allowing non-consensual sex within marriage without criminal repercussions. The 2017 Supreme Court judgment in the Independent Thought case marked a significant shift by criminalizing sexual intercourse with a minor wife, aligning the age of consent with the age of marriage. However, the broader issue of marital rape remains unaddressed in criminal law.
Judicial Opinions and Advocacy
Several legal scholars and jurists have criticized the marital rape exemption. The Justice J.S. Verma Committee, established after the 2012 Nirbhaya gang rape case, recommended the removal of the marital rape exception. Despite this, the recommendation was not incorporated into the Criminal Law (Amendment) Act, 2013 . In 2018, the Gujarat High Court, in Nimeshbhai Bharatbhai Desai v. State of Gujarat, questioned the notion of implied consent within marriage, emphasizing that “marital rape is not a privilege of the male partner in a marriage, but instead a violent conduct and an unfair treatment that should be criminalised” . Justice D.Y. Chandrachud, during a 2018 hearing, underscored the importance of consent within marriage, stating, “The freedom to say ‘no’ (to sexual intercourse) must exist after marriage as well”.
Government’s Stance
The Indian government has consistently opposed the criminalization of marital rape, citing cultural and societal factors. In 2015, then Minister of State for Home Affairs, Haribhai Parathibhai Chaudhary, stated that “marital rape cannot be applied in the country since marriage was treated as a sacrament or sacred in the Indian society” . The government argues that criminalizing marital rape could “destroy the institution of marriage” and lead to misuse of the law. In a 2023 affidavit to the Supreme Court, the Centre expressed concerns that such legislation might be misused and emphasized the need for a comprehensive approach involving consultation with all stakeholders .
Societal and International Perspective
The resistance to criminalizing marital rape is deeply rooted in societal norms and cultural beliefs. The perception of marriage as a sacrament implies perpetual consent, and the patriarchal mindset often views the wife’s body as the husband’s property . This cultural conditioning makes it challenging to recognize and address marital rape as a violation of a woman’s autonomy and rights. Furthermore, concerns about the potential misuse of laws, as seen with Section 498A (anti-dowry law), contribute to the hesitation in enacting legislation against marital rape . However, legal experts argue that the possibility of misuse should not hinder the establishment of laws that protect fundamental rights.
Globally, many countries have recognized marital rape as a crime. The United Kingdom criminalized it in 1991, and countries like Canada, South Africa, and Australia followed suit in the 1980s and 1990s . India’s continued exemption places it among a minority of nations that do not criminalize marital rape. International bodies, including the United Nations, have urged India to reconsider its stance. Helen Clark, former head of the U.N. Development Programme, emphasized that “any form of assault on women, even within a family, is a crime and must be properly addressed” .
The Path Forward
Addressing marital rape in India requires a multifaceted approach. Legal reforms are essential to recognize and criminalize non-consensual sex within marriage. Equally important is societal change to challenge and transform the patriarchal norms that perpetuate the belief in implied consent. Education and awareness campaigns can play a pivotal role in reshaping societal attitudes. Empowering women to assert their rights and fostering a culture that respects consent are crucial steps toward eradicating marital rape.
In conclusion, while legal scholars, jurists, and activists continue to advocate for the criminalization of marital rape, significant challenges remain. Balancing cultural sensitivities with the imperative to protect women’s rights is a complex task, but one that is essential for India’s progress toward gender equality and justice.
Sources:
- https://www.theguardian.com/global-development/2015/aug/17/india-martial-rape-law-criminalisation-dragging-heels
- https://www.academia.edu/80462181/MARITAL_RAPE_NEED_FOR_CRIMINALISATION
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