The IPC does not recognise marital rape or rape with in marriage. Sexual act of a man with his own wife will not amount to rape unless the wife is below 18 years of age (earlier it was 15 years of age but the Honourable Supreme court found the classification of age discriminatory in the case of Independent thought v/s Union of India 2017 SC...) this has been dealt with  in the exception to section 375.

Consent is deemed to have been given by entering into a matrimonial tie, it has been provided to protect the health of the girl involved. Instances of abuse by the husband with his wife of tender age are growing. A check of law necessary to refrain men from taking advantage of their marital rights.

Under section 375 A if a man has  intercourse with his wife during  separation  he shall be guilty of rape, here separation will be of two kinds first is judicial separation and second when she is living separately  under any custom or usage non consensual intercourse in such situation will be punishable.

Marital rape occurs when a man has sexual intercourse with his wife forcibly or without her consent. Such rape has specifically been exempted. The criminal law presumes that the husband cannot be guilty of rape committed by himself upon his lawful wife, because by their mutual matrimonial consent or contract the wife has given her consent from which she cannot retract.  

However with the revolutionary changes in the status of women, the rule for immunity for rape of a wife also came to be criticised. In America since 1970s there has been a change in the rape laws. In 1984, a new York court held marital rape exemption to be unconstitutional.  Several countries including Russia, Sweden, Denmark, and Australia allow prosecution of husbands for raping their wives.

According to the current scenario, marital rape has trivialised the importance of consent in the offence of rape.

Legalising marital rape is a legal sin. The researcher believes that it is not only morally incorrect but also against the spirit of the Indian constitution.

A study by The International centre for research on Women in 2011 (ICRW) stated that one in every five Indian men surveyed admitted to forcing their wives into sex, the same study also mentioned that 65% of Indian men surveyed that they believe that there are times when women deserve to be beaten (gaynair 2011).

In order to exclude marital rape from the ambit of rape law, three justifications have been traditionally provided. The first justification was provided by Justice Mathew Hail (1609-1676) the former chief justice of England. He said through the contract of marriage, she grants  her sexual autonomy to her husband in return for his protection. so she cannot revoke sexual intercourse.

The second theory relied on was the property theory. The woman is before marriage the property of her father and after marriage becomes the property of her husband. So a man is entitled to use his property in the manner he deems fit. The question of husband raping his wife does not arise.

The third justification for marital rape exemption is the unification theory. The rationale behind this exemption was the doctrine of unity in marriage. A man and women are merged into a single legal being upon marriage; since he wife has no legal existence outside of her husband’s identity, it is not legally possible for a man to rape his wife.

Several states in the world have already recognised marital rape as an offence, breaking the age old male chauvinistic viewpoint. It was an old notion that women are male’s sexual property. Now in a marriage both are equals. The report submitted by Justice Verma committee in 2013 also recommended criminalisation of marital rape however it was not accepted.

Article 14 guarantees equality to all citizens and equal protection of laws despite this.   Section 375 of the Indian Penal Code, 1860 discriminates with a wife when it comes to protection from rape. A married woman is also a woman and rape by a stranger or her own husband with whom she cohabits is a rape nonetheless. Therefore such a classification between a rape by a stranger and a rape by her own husband is deemed to be unreasonable. It also violates article 21 of the constitution guarantying right to life.

The researcher believes that the concern of women filing false cases should be dealt by providing safeguards for fabrication and not by not criminalising marital rape.

The justification that criminalising marital rape would destroy the institution of marriage is morally incorrect. It should however be recognised that if a husband rapes his wife, it is not the complaint that destroys the institution of marriage but the act of rape itself.

The remedy of filing for divorce or a case against cruelty under existing laws will not provide sexual autonomy to the woman. The harm lies in the failure to recognise the control of women over their own body in the context of marital relationships.

Conclusively, India should join the league of countries by criminalising marital rape and upholding the virtues of equality, fraternity and justice as enshrined by the preamble of the constitution. Written By: Kamlesh kumar and Charan Singh (LLM Final Year , Faculty of Law , Delhi University)