It was uncovered that 6% of ever-married women in the age group of 18-49 have faced spousal sexual violence. Additionally, 32% of women aged 18-49, who have been married, have encountered physical, sexual, or emotional spousal violence.
Eleanor Roosevelt once said;
“Where, after all, do universal human rights begin? In small places, close to home—so close and so small that they cannot be seen on any maps of the world.”
Yes, this is true! Because, In India, a country where debates about consent, justice, and personal autonomy are evolving, marital rape is an issue that remains silent.
Marital rape or an act of sexual intercourse without one spouse’s consent is widely experienced by women, though not exclusively. According to the National Family Health Survey (NFHS-5) INDIA Volume I Report1, which surveyed approximately 6.37 lakh sample households across 707 Indian districts (28 states) and 8 union territories, involving 724,115 women and 101,839 men to provide detailed estimates up to the district level, it was uncovered that 6% of ever-married women in the age group of 18-49 have faced spousal sexual violence. Additionally, 32% of women aged 18-49, who have been married, have encountered physical, sexual, or emotional spousal violence.
Despite these distressing figures and recent legal changes in India, including new criminal laws, the problem of marital rape hasn’t been properly addressed and is seen as a domestic violence issue. It shows that there’s a need for more comprehensive laws to protect individuals within marriages and address the sensitive issue of marital rape in India.
CURRENT LEGAL ASPECTS
In the past, many cultures, including English common law in places like Anglo-America and the British Commonwealth, people believed that spouses had certain rights, including the right to have sex with each other. In those legal systems, they thought it was impossible for a husband to commit marital rape against his wife.
In India, the history of marital rape is complex and not treated as seriously as other forms of rape. There is no specific law defining or criminalizing marital rape. While the Indian Penal Code addresses rape with stringent punishment under Section 376, it also includes an exception added after the Nirbhaya Rape case through the Criminal Law Amendment Act 20132;
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.
Despite further updates in laws like the Bharatiya Nyaya (Second) Sanhita, 2023 (BNS)3, which have improved some aspects, it still doesn’t criminalize marital rape. This highlights a significant gap in the legal framework.
In the present scenario, the threshold of rape victims, including the gang rape victims under the BNS 2023 is 18 years of age. But what about the spouses after 18 years of age?
While marital rape lacks criminal liabilities, it does have civil remedies under the Protection of Women from Domestic Violence Act (PWDVA) 20054. This law recognizes sexual violence as a form of domestic violence. Matrimonial law also provides options, allowing for divorce and judicial separation based on grounds of ‘cruelty.’ Additionally, if the legal system overlooks sexual violence in marriages, married women can resort to section 498A of the Indian Penal Code, which lays down provisions on cruelty, including those related to sexual violence by husbands.
Even Section 377 of the IPC, which previously prohibited “unnatural sex” applicable to heterosexual individuals has undergone changes. The Supreme Court in Navtej Singh Johar v. Union of India5 case on September 6, 2018 in its ruling, decriminalized consensual homosexual relationships among adults. It also clarified that forced intercourse with an adult man or any intercourse with an animal is an offence. But did you know that some women have used Section 377 to file charges of rape against their husbands? Well, in the new BNS 2023 law, this section is not retained. So, now legally, the rape of an adult man won’t be considered a crime under any law, and neither will having intercourse with an animal.
DEBATES ON THE ISSUE
To the surprise, the recent laws introduced to improve women’s rights have not taken into account the past recommendations and court’s judgments.
In 2013, the Justice Verma Committee suggested removing the exception for marital rape in India’s criminal system. Unfortunately, the Parliamentary Standing Committee on Home Affairs said no to this idea, fearing it might stress the whole family system if marital rape became a crime.
The Justice Verma Committee famously recommended removing the marital rape exemption in its 2013 report6 into how India’s criminal system could better deal with sexual violence. But, the Parliamentary Standing Committee on Home Affairs rejected this recommendation, fearing that if marital rape were criminalized, the whole family system will be under great stress.
So the question arises is;
“Despite several recommendations of the high-level committees, Why we failed to make laws to criminalize marital rape? Maybe lack of seriousness for the issue?“
During one parliament session in 2015, a bill to criminalize the marital rape was presented, but it was too dismissed on parliamentary members reasoning. They were of the view that marriage is a sacred bond, and making marital rape illegal might harm this institution. It was also argued that the nation needs to be proud as it leads to less divorce rates. But they forgot to acknowledge the fact that in reality some women endure violence and abuse in their marriages.
In March 2016, Maneka Gandhi, then Minister for Women and Child Development, stated,
“It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/ illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament etc.”
While waiting for the parliament to take a stand on the issue and make comprehensive laws regarding this, the two-judge Division Bench of the Delhi high court in May 2022 delivered a split verdict on the issue.
Before this, in 2017, the Supreme Court in, Independent Thought v Union of India7 case, changed a part of an old and backward exception. It held that a husband who rapes his underage wife cannot escape prosecution.
In Rit Foundation V. The Union Of India (2022)8, Delhi High court’s two judges bench gave contrast findings on the criminalisation of marital rape.
Justice Rajiv Shakdher, heading the bench, noted that the marital rape exception violates provisions of the Indian constitution, resulting in the
“denial of bodily autonomy and agency of married women, which must be rectified.”
He further stated that the marital rape exemption
“suffers from manifest arbitrariness and discrimination as a crime as heinous as rape is not recognized as an offense in marriage.”
Hence, he struck down Exception 2 to Section 375 of the Indian Penal Code, citing violations of Articles 14, 15, 19(1)(a), and 21 of the Indian Constitution.
On the other hand, Justice Hari Shankar disagreed with Justice Shakdher, stating that in marriage, a “cut and dry” approach cannot be adopted. He argued that there is no violation of the Articles of the Indian Constitution. He believed that consent is given for sexual intimacy even if the will may not exist, and the state does not have the right to interfere in the private space within a marital relationship.
It is important to highlight that Justice Hari Shankar’s verdict in the case echoed a controversial 1984 judgment from the Delhi High Court. In that judgment, it was expressed that;
“introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution and all that it stands for.”
Also, during this possible move to remove the marital rape exception, the social media platform X (formerly Twitter) saw a drastic involvement of men against this step. They used hashtags such as “MARRIAGESTRIKE” OR “MARITALSTRIKE” and were willing to boycott marriage if the exception was deleted.
RECENT DEVELOPMENTS
With the passage of time, and the re-introduction of old laws, it was expected from the government to being a new reform on marital rape too. It was recommended to remove the exception of rape from the Indian Penal Code, but the original provision is retained in the BNS 2023 altering the age limit.
Even The Standing Committee on Home Affairs (2023) has recommended re-introducing section 377 of the IPC. But it was not considered.
Meanwhile, a petition challenging the marital rape exception has been filed by the Senior Advocate Indira Jaising before the Supreme Court. Though the series of petitions have been filed since a year, it has not been listed for hearing.
Earlier, the Chief Justice of India DY Chandrachud on July 19, 2023, agreed to list early these petitions but it has seen no progress. Recently, also on 19 Jan, 2024 Supreme Court once again on mentioning the matter positively approved giving a slot to these hearings between the Constitution bench matters. However, when? We don’t know yet.
Is this delay in hearing the issue of marital rape intentional?
CONCLUSION
In a nutshell, the issue of marital rape is a grave concern that affects one spouse deeply. Despite changing laws, there remains a significant gap in acknowledging and addressing this form of violence within marriages. The increasing rates of spousal violence in India highlight the urgent need for collective action to close legal loopholes and create an environment where every individual, regardless of gender, can exercise their fundamental right to bodily autonomy and freedom from violence within marriage.
It’s important to recognize that women within marriages are equal citizens, entitled to the constitutional rights of equality, dignity, and liberty. However, the discrepancy between these constitutional principles and the treatment of married women is evident in the court’s confusing statements and the legislature’s rigid stance, grounded in the sacrament of marriage. This stops the acknowledgement of marital rape as a criminal offence, similar to rape.
We know for centuries, men have exercised control over the assets and bodily integrity of their legal wives. He was allowed to exploit, abuse, and torture while deriving pleasure from his wife’s body. Throughout history, women have been treated as powerless and violence, abuse, and sexual exploitation within marriages have been normalized for them. Unfortunately, some leaders, lawmakers, and even judges seem all right with this status quo.
This mindset and lack of attention calls for the question;
Are we truly building a nation where equality, privacy, and safety prevail for all?
An article by Advocate Shalu Sharma, Delhi High Court. The views are personal.
