Rape is defined in section 375 IPC as every sexual assault including non-consensual intercourse with a female by a male.

Exception (2), to section 375 IPC provides protection in sexual assault to husband with his own wife.

Section 375 IPC, Exception (2): – 

“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”

The following exception protects the male from any prosecution for any un-willing/non-consensual sexual intercourse or any sexual act being done to his own wife by him, provided that the wife should not be below the age of fifteen years.

In today’s world when we talk about the women empowerment and equality for women in every aspect of the society, the interpretation of such law is very irrational and unreasonable. The law in totality contains the notion that, marriage in itself is sufficient to consider that the wife has given a perpetual consent to the husband to have sexual intercourse i.e. marriage means consent to have sexual intercourse in default to both husband and wife. The cause for such default consent notion in the rape law in India, may be religious, dominancy of male over the female, or other legal reasons.

Doctrine of Coverture: – Under common law the doctrine says that upon marriage, a woman’s legal rights and obligations are absorbed by those of her husband, in accordance with the wife’s legal status of feme covert (married women).

When IPC was drafted in 1860’s under British rule in India, a married woman was not considered an independent legal entity because of the doctrine of coverture. The exception to marriage in IPC’s definition of rape was drafted on the basis of Victorian patriarchal norms that did not recognize men and women as equals, did not allow married women to own property, and merged the identities of husband and wife under the“Doctrine of Coverture”.

Criminal law in India has been amended so many times since 1860, but still after approximately 180 years now, still the doctrine of coverture is reflected in the laws of our nation. India is one of 36 countries on the globe where marital rape is still not criminalized. The legal legitimacy of marital rape in Indian law has been maintained under the idea of sacredness and sacrosanctity of marriage.

The non-criminalization of marital rape in India undermines the dignity and violates human rights as well as fundamental principles enshrined in our Constitution, of women.    

Violative of Article 14: Marital rape violates the right to equality enshrined in Article 14 of the Indian constitution.

The Exception distinguishes between women based on their marital status and immunizes actions perpetrated by men against their wives.

I quote the words: –

“When a stranger does it, he doesn’t know me, I don’t know him. He’s not doing it to me as a person, personally. With your husband, it becomes personal. You say, this man knows me. He knows my feelings. He knows me intimately and then to do this to me – it’s such a personal abuse.”

~‘License To Rape: Sexual Abuse Of Wives’ by D Finkelhor and K Yllo (1987) Criminal Justice Policy Review

Violative of Article 21: According to the Supreme Court, the scope of Article 21 includes the right to health, privacy, dignity, safe living conditions, and safe environment, among others. Married women actually experience sexual abuse and it is difficult for a woman to escape abusive conditions at home because they are legally and financially tied to their husband and moreover there is no provision to protect a married women who is subjected to sexually abusive conditions by her husband.

The purpose of rape law or laws for sexual assaults is to protect women and punish those who engage in the such inhumane activities. Exempting husbands from conviction is entirely contradictory to that objective, as the consequences of sexual abuse is the same whether it is done by a stranger if a woman is unmarried or by the husband if the women is married, in both the cases the dignity of the women is decreased to brim, right to privacy, personal liberty is violated among other enshrines in article 21.

In the State of Karnataka v. Krishnappa, 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, the court held that non-consensual sexual intercourse amounts to physical and sexual violence.

In the Suchita Srivastava v. Chandigarh Administration, 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 Justice K.S. Puttuswamy (Retd.) v. Union of India, the Supreme Court recognized the right to privacy as a fundamental right of all citizens. The right to privacy 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.

In a landmark judgment, R v. R, in the United Kingdom, a husband contended the ‘conviction for attempted rape’ on the ground that marriage in default is irrevocable consent. His contention was denied and the court convicted him as the exception to marital rape is a ‘legal fiction under the common law’. The court stated that for a person to be penalised for rape the relationship between parties is immaterial.

Analysis of Judgements: – In all the above judgments the highest court of the nation has recognized the right to abstain from sexual activity a fundamental right covered under Article 21 of the constitution of India, irrespective of their marital status.

Hence, forced sexual intercourse is a violation of fundamental right conferred in article 21, even if it is done by the husband of a woman.

Despite these judicial trends, the courts are in practice to dismiss the petitions which are filed to make the rape law include marital rapes.

In 2015, a petition filed by a woman in the apex court was dismissed on the ground “law shan’t change for one woman”.

In Arnesh Kumar v. State of Bihar, the apex court held that criminalising marital rape will be the collapse of the social and family systems amidst the already existing biased laws.

The belief of Indian government is that criminalising marital rape can de-stabilise the institution of marriage. The contention is advocated with the example of misuse of Section 498A (Husband or relative of husband of a woman subjecting her to cruelty). And moreover, proving that the marital rape is non-consensual is very difficult because married couples usually have consensual sex, so it can take evidence e.g. marital discord or separation, to show that the sexual activity was not consensual.

Recommendations: –

The United Nations Declaration on the Elimination of Violence against Women defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual, or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.”

And in 2013, the CEDAW recommended the Indian government to criminalize marital rape.

The JS Verma committee set up in the aftermath the Nirbhaya rape Case, had also recommended the government that by removing this exception, women will be safer from abusive spouses, can receive the help needed to recover from marital rape and can save themselves from domestic violence and sexual abuse.

Remedies available for women substitutive to exception of marital rape

Women can file complaints about sexual assault under Section 498A against their husbands.

Protection of Women from Domestic Violence Act, 2005. Under the act, women can file complaints against forced sexual activity, even by the husband.

Personal Opinion: –

On one hand the Supreme Court and the High Courts are presently flooded with the petitions to end the immunity of a marital rape and recognize it as a sexual criminal offence against women.

And on the other hand, if it is recognized as a sexual offence against women, it has a very vast potential of misuse.

Hence, the government should not turn away from the truth that even if the specific petitions are getting dismissed or rejected just on the grounds of misuse of the law if made, but still the judicial trends reveal the contrary, and judges are interpreting the sexual offences against a woman as violation of their very basic fundamental rights such as right of privacy which in an above mention case is ruled as the right primarily concerned with the decision taken in scope of sexual activities. The government should come up with a very strong law against marital rapes and treat them as usual rape defined in section 375 IPC, with check and balances to counter the scope of being misused.

Reference: –

1. Indian Penal Code, 1860.
2. The Constitution of India.
3. United Nations Declaration on the Elimination of Violence against Women.
4. ‘License To Rape: Sexual Abuse Of Wives’ by D Finkelhor and K Yllo (1987) Criminal Justice Policy Review.
5.  JS Verma committee.
6. Protection of Women from Domestic Violence Act, 2005.

Case Referred: –

1. State of Karnataka v. Krishnappa
2. Suchita Srivastava v. Chandigarh Administration
3. Justice K.S. Puttuswamy (Retd.) v. Union of India
4. R v. R, in the United Kingdom.
5. Arnesh Kumar v. State of Bihar