The definition of rape under Section 375 of IPC includes all forms of sexual assault involving nonconsensual intercourse with a woman. However, Exception 2 to Section 375 exempts unwilling sexual intercourse between a husband and a wife over fifteen years of age from Section 375’s definition of “rape” and thus immunizes such acts from prosecution. As per current law, a wife is presumed to deliver perpetual consent to have sex with her husband after entering into marital relations. While unwilling sexual contact between a husband and a wife is recognized as a criminal offense in almost every country of the world, India is one of the 36 countries to not have criminalized marital rape.

In Budhan Choudhary v. State of Bihar and State of West Bengal v. AnwarAli Sarkar, the Supreme Court held that any classification under Article 14 of the Indian Constitution is subject to a reasonableness test that can be passed only if the classification has some rational nexus to the objective that the act seeks to achieve. But Exception 2 frustrates the purpose of Section 375: to protect women and punish those who engage in the inhumane activity of rape. Exempting husbands from punishment is entirely contradictory to that objective. Put simply, the consequences of rape are the same whether a woman is married or unmarried. Moreover, married women may actually find it more difficult to escape abusive conditions at home because they are legally and financially tied to their husbands. In reality, Exception 2 encourages husbands to forcefully enter into sexual intercourse with their wives, as they know that their acts are not discouraged or penalized by law. Because no rational nexus can be deciphered between the classification created by the Exception and the underlying objective of the Act, it does not satisfy the test of reasonableness, and thus violates Article 14 of the Indian Constitution.

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.” Although the Constitution guarantees equality to all, Indian criminal law discriminates against female victims who have been raped by their own husbands.

In a landmark judgment, the Kerala High Court on Friday held that marital rape is a valid ground for divorce even though it is not penalised in India. According to Live Law, the Kerala HC said, “a husband’s licentious disposition disregarding the autonomy of the wife is marital rape, albeit such conduct cannot be penalised, it falls in the frame of physical and mental cruelty”.

A Division Bench of Justice A Muhamed Mustaque and Justice Kauser Edappagath observed that “merely for the reason that the law does not recognise marital rape under penal law, it does not inhibit the court from recognising the same as a form of cruelty to grant a divorce. We, therefore, are of the view that marital rape is a good ground to claim divorce”. The court made the significant judgment while dismissing a set of two appeals by a husband challenging the verdict of a family court. The family court had observed that the appellant treated his wife as a “money-minting machine”.

The appellant, a doctor-turned-realtor, allegedly forced his wife to have sex when she was sick, bedridden, and on the day of his mother’s death. Further, he allegedly forced her to have unnatural sex and engage in sexual intercourse in front of their daughter. He also accused her of having illicit relationships. The court noted that “marital rape occurs when the husband is under the notion that the body of his wife owes to him” but “in modern social jurisprudence, spouses in marriage are treated as equal partners and husband cannot claim any superior right over wife either with reference to individual status”.

Adding that a spouse in a marriage has a choice not to suffer, the court said that “it is fundamental to the autonomy guaranteed under natural law and the Constitution” and “law cannot force a spouse to suffer against his/her wish by denying divorce”. The court should not wield any power to decide on the choice of the individual, it stated.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

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