There are 195 countries on the face of the earth. It is 2020 and India still remains one amongst the other 36 countries where it is not a crime for a man to rape a woman - for as long they are married. 

What is marital rape?

A man commits rape when he has sexual intercourse with a woman without her consent or when she is a minor as stated in section 375 of the Indian Penal Code. However, an exception in section 375 of the IPC, states that sexual intercourse by a man with his own wife is not rape, unless the wife is below 15 years of age. According to current laws, a wife is presumed to provide her perpetual consent to her husband by entering into marital relations with him.

Does it exist?

Historically, sexual intercourse between spouses after marriage was considered a marital right. But as the world has progressed over the years, engaging in a sexual act, without the consent of one’s spouse, is now widely classified as rape within many societies around the world, repudiated by international conventions and increasingly criminalized. Marital rape has been explicitly criminalized in Australia, Brazil, Canada, the United States of America, France, Greece, Ireland, Italy, and over 100 more countries.  

The situation in India. 

Most countries in the world acknowledge and accept that rape is rape and it is a crime. Then why does an emerging superpower like India does not criminalize marital rape? The answer lies herewith - an outdated Indian Penal Code dating back to the Victorian era when a woman was not considered as an independent legal entity, a rigidly patriarchal society that suppresses women’s voices and agencies on the topic by revolving around the same point that “why did you marry then?” 

But the most important reason is today’s Central Government. The Narendra Modi government’s right-wing stand that criminalizing marital rape would “destabilize the institution of marriage” and could become an easy utensil to “harass husbands” in RIT Foundation v. Union of India, which is pending before the Delhi High Court, is absolutely distressing. The Modi government has found some strange connections between the institution of marriage and criminalizing marital rape. This shows that the government’s idea of the institution of marriage is established on signing away one partner's physical and sexual autonomy to the other. This is not marriage, it is subjugation. 

What actually destabilizes the marriage is the act of marital rape by the spouse and not the act of a wife demanding justice for violation of her sexual consent. And as far as harassing husbands is concerned, that is why we have a judicial system, to weed out the truth.

Against Indian culture?

The government and the people have used this phrase many times. According to these people, our Indian culture teaches that a man can forcefully have sexual intercourse with her wife even when she explicitly says no, as he is allowed to disrespect and violate her sexual consent because she is married to him, which means she has given a license to have sexual intercourse whenever the man desires, which is as good as being a sex slave. 

In August 2019, former Chief Justice of India Dipak Misra said that marital rape should not be made a crime in India, The Times of India reported, “because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values,” Deccan Herald quoted Misra as saying.

The Indian government has propounded that those wanting to stop women being raped by their husbands were “blindly” following Western customs. The Times of India reported, “This country has its own unique problems due to various factors like literacy, lack of financial empowerment of the majority of females, the mindset of the society, vast diversity, poverty, etc. and these should be considered carefully before criminalizing marital rape.”

The translation being, that the government is contesting that because Indians are illiterate, poor, religious, and conservative - unlike America - they believe that a man cannot rape his wife, because a good Indian wife will dutifully consent to her husband sexual needs forever. This according to the government is a “unique” obstacle which it faces while decriminalizing marital rape and by stating this, the government themselves is acknowledging the fact that lakhs of men are violating the concept of consent of a wife based on this mindset and that what they are doing, is in fact, rape. Then the government goes on to argue that if they criminalize marital rape, a “majority of marriages will fall apart”, because women will be then able to out and stand up against their rapist husbands and avail justice and protection.

The big question - is marriage a consent?

If one’s concept of marriage includes socially sanctioned sexual slavery, then one does not understand either marriage or consent.  Consent simply means giving permission for something to happen. 

Women in a marriage are pressured to submit to sex, whether they want it or not at that moment, because who cares about her consent when she is married to her husband. A marriage is a social contract, not blanket permission for sex because a husband does not own a woman’s body. A woman solely has the right to decide whether or not she assents to her husband’s wishes to have sexual intercourse or whether or not she herself wants to indulge in it. If instead of saying no, a husband does not stops, it is rape, as she did not assent. She said NO. It is as simple as that. 

The government concentrates on a spouse’s right over other spouse’s sexuality which derails the whole conversation about consent. It links sexual assault to honor and takes it away from what it actually is - a violent violation of consent. 

Physical violence is illegal. Why not sexual violence?

A husband can be jailed for beating up or abusing his wife but not for raping her. Why is it a crime for a man to physically assault his wife but not sexually? This problematic distinction comes from the fact that it is assumed that a wife’s sexuality is her husband’s property. 

The constitution and cases.

Article 14 of the Indian Constitution ensures that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India” but the marital law exception discriminates against females who have been raped by their own husbands by denying them equal protection from rape and sexual harassment.

Article 21 of the Indian Constitution states that “no person shall be denied of his life and personal liberty except according to the procedure established by law.” The Supreme Court has interpreted this clause in various judgments to expand past the purely literal guarantee to life and liberty. Instead, it has held that the rights given in Article 21 include the rights to health, privacy, dignity, safe living conditions, and a safe environment, among others. 

The strongest argument in terms of legal precedents can be found in Justice K.S. Puttuswamy (Retd.) v. Union of India, ((2017) 10 SCC 1) in which the Supreme Court recognized the right to privacy as a fundamental right and clearly said that it includes “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.” Forced sexual intercourse and cohabitation is a violation of that fundamental right. Since this ruling doesn’t differentiate between married and unmarried women and there is no blunt ruling that says women lose their fundamental right to privacy upon marriage - all women have the fundamental right to be able to consent and to be able to say no.

In The State of Karnataka v. Krishnappa ((2000) 4 SCC 75), the Supreme Court held that “sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.” In the same judgment, it held that non-consensual sexual intercourse amounts to physical and sexual violence. Later, in Suchita Srivastava v. Chandigarh Administration ((2009) 14 SCR 989) the Supreme Court equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.

In the aftermath of the Jyoti Singh gangrape in 2012, the Justice Verma Committee was formed with an objective to strengthen the anti-rape laws in the country. The Committee strongly recommended that the exception for marital rape be removed. The Committee added that: “The fact that the accused and victim are married or in an intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.” The Committee also highlighted the directions made by the CEDAW Committee in respect of India in 2007 which asked for “widening the definition of rape to reflect the realities of sexual abuse experienced by women and to remove the exception of marital rape from the definition of rape”. However, though the majority of directions of the Verma Committee were incorporated, the suggestion to criminalize marital rape failed to find a place in the Criminal Law Amendment Act 2013.

In a judgment by the Gujarat High Court in the case of Nimeshbhai Bharatbhai Desai v. State of Gujarat (2017), it dealt with the issue of marital rape and stated that “making wife rape illegal or an offense will remove the destructive attitudes that promote the marital rape”; however, due to non-recognition of marital rape as a crime under the IPC, the court held that the husband is liable only for outraging her modesty and unnatural sex. Similarly, the Apex court in Independent Thought v. Union of India and Anr (W.P. (C) 382 of 2013, S.C.C) has criminalized sexual intercourse with a minor wife aged between 15 and 18 years but has refrained from making any observation regarding the marital rape of a woman who is above 18 years of age.

Conclusion

Acting Chief Justice Gita Mittal and C Hari Shankar of the Delhi High Court stated in response to a Public Interest Litigation made by an NGO called Men Welfare Trust that “Marriage does not mean that the woman is all time ready, willing and consenting [for sex]. The man will have to prove that she was a consenting party.”  Exception 2 to Section 375 of the IPC is an infringement of Articles 14 and 21 of the Constitution. It is time that Indian jurisprudence understands the inhumane nature of this provision of law and strikes it down

It’s truly regrettable that we are still debating whether or not a married woman has rights over her own body. Most developed and developing countries around the world have criminalized marital rape. While naysayers will continue to defend and cite the sanctity of the institution of marriage, it is high time India replaced an anachronistic view of conjugal relationships, with one that consolidates the relationship in mutual respect and consent.