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Criminalize Marital Rape - Married Women NOT For Sale!

By Kavya Uniyal

In August 2021, Justice NK Chandravanshi from Chhattisgarh High Court acquitted a 37-year-old man from facing rape charges pressed by the accused’s wife by citing exception 2 of Section 375. The Honourable High Court remarked ‘In this case, the complainant is the legally wedded wife of applicant therefore, sexual intercourse or any sexual act with her by the husband would not constitute rape even if it was by force or against her wish.’ The court however found the accused guilty under section 377 which criminalizes ‘unnatural sex’. This judgment once again reignited the debate on Marital rape. As of today, India is among the only 36 countries in the world where marital rape is still legal.


Section 375 of the Indian penal code criminalizes the offence of rape. According to the codified definition, rape is ‘sexual intercourse with a woman against her will, without her consent, fraud or misinterpretation, or at a time that she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 18 years of age.’ However, there are two exceptions to this definition. Exception 2 to section 375 states that ‘sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape.’ This exception thus effectively legalizes marital rape in India.


This law can be dated back to the colonial era, a time when India was a colony under the British and governed by English laws and Victorian norms. It was the time when society was deeply influenced by the ideas of patriarchy, Sir Mathew Hale, Chief Justice in 17th century England once remarked - ‘The husband can’t be guilty of rape committed by himself upon his lawful wife, for by their mutual consent and contract upon his lawful wife hath given up on herself this type unto her husband which she cannot retract.’ Thus women were merely considered as the property of her husband with no identity of their own!


However, times have changed. Indian laws have been drafted and amended to protect women's rights and their identity. Section 498A is a glaring example of how stringent Indian laws have been made to protect the dignity of women. This particular section of IPC is a cognizable, non-bailable, non-compoundable offence and protects women from cruelty at the hands of her husband and his family. Further, the Indian parliament has enacted laws such as ‘The Protection of Women from Domestic Violence Act' and ‘Sexual Harassment of Women at Workplace’ to safeguard women from offences such as domestic violence and sexual assault.


The question then arises - Why does exemption 2 to section 375 still exist? The demands to strike down this aspect of law have been partially successful as in 2017 the Supreme Court amended this provision. In a landmark judgment, the Supreme Court raised the age of consent from 15 to 18 thus implying that sex with wife below the age of 18 will be considered rape.

While pronouncing the verdict, Justice Lokur observed that the existing exception was an anomaly. According to Section 375, sex with any girl below the age of 18 with or without her consent is statutory rape thus implying that while an unmarried girl can book her perpetrator for the offence of rape, married women aged 15 to 18 cannot do the same. The court verdict thus ended the existing discrepancy in the law.

The court remarked that the exception clause of rape created an unnecessary and artificial distinction between a married and unmarried girl child. It stated the exception took away the right of the girl child to reproductive choice and bodily integrity. The bench of justices observed that ‘human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance.’ However, the court refrained from commenting on the issue of marital rape on the grounds that the issue was not raised by the parties in dispute.


The Bench of justice while pronouncing the verdict stated that exception 2 to Section 375 violates Articles 14, 15, and 21 of the Indian constitution. This gives rise to a pressing question - If the Supreme Court recognizes that marital rape violates the right to equality and deprives married women of a life of dignity, why are women aged 18 and above excluded from protection against it? Why on the basis of age, are the fundamental rights of a woman being compromised?


Various Supreme Court judgments have recognized the right of women over her body. Take, for instance, the Suchrita Srivastava vs Chandigarh administration case, the Supreme Court in its ruling stated that ‘ a woman’s right to make reproductive choices is also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution of India’. The court remarked that a woman's right to privacy, dignity, and bodily integrity should be respected.


While pronouncing verdict in the historic ‘Justice K.S Puttaswamy (Retd) vs Union of India case which recognized ‘Right to Privacy’ as a fundamental right, Justice Chandrachud remarked ‘Privacy safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his or her life. He added that ‘Personal choices governing a way of life are intrinsic to privacy.’ Thus the Supreme Court has time and again emphasised the right of an individual to make a choice. How can we then deny a married woman a right over her body?


In 2018, the Supreme Court unanimously struck down the colonial-era law Section 497 thus decriminalizing adultery. The Bench of Justices held that the ‘Sexuality’ of a woman is a definitive part of her identity and a part of her ‘inviolable core’ and neither the state nor the institution of marriage can disparage it. Justice Chandrachud emphasised that considering a citizen as a ‘property of others' is an anathema to the ideal of dignity. The bench added that ‘sexuality cannot be disassociated from human personality’ reiterating that ‘Autonomy in matters of sexuality is intrinsic to a dignified human existence.’

The bench expressed that depriving a woman of sexual autonomy or presuming the lack of content once she gets married is ‘antithetical to the constitutional values. The bench noted that considering a woman ‘submissive’ or worse ‘naive’ has no place in a liberal constitution.

Considering all these judgments, One can’t help but wonder - Why is still legal for a man to rape his wife? Why is a married woman being treated as property? Why is marriage being considered as a license to rape in this country? It is time that India let goes of her patriarchal norms and stops subjugating the fundamental rights of married women.


While the Union government claims that the idea of marital rape cannot be suitably applied to the Indian context, statistics have shown otherwise. According to National Health and Family survey (2015-16), 5.4% have experienced marital rape in India. The survey also demonstrated that an average Indian woman is 17 more likely to face sexual violence from her husband than from others. These are crucial findings whose implications cannot be ignored. Marital rape is a living reality and it is time that India recognizes that!


Ours is a society with deeply entrenched patriarchy. Strong, independent, and free-spirited women have been for long despised in our country. Ours is a land where a woman is judged for having premarital sex but then is expected to accept all kinds of sex after her marriage. It is time that we stop seeing a female merely as a property or an object whose body is for sale. A woman is her person with complete autonomy over her body, decision, and choices - It is time that India accepts it too!



Sources:



Adultery Law Strips Woman Of Sexual Autonomy: Justice Chandrachud. (2018, September 27). NDTV. https://www.ndtv.com/india-news/section-497-justice-dy-chandrachud-adultery-law-strips-woman-of-sexual-autonomy-1923311


Sex With Minor Wife Is Rape, Rules Supreme Court. (2017, October 11). The Wire. https://thewire.in/gender/minor-wife-sex-rape-supreme-court


Government Denies Marital Rape Occurs, National Survey Shows 5.4% of Married Women Are Victims. (2018, January 12). The Wire. https://thewire.in/gender/indian-law-denies-marital-rape-exists-5-4-married-indians-claim-victims


‘Sexual intercourse by husband not rape, even if by force’: Chhattisgarh HC. (2021, August 26). The Indian Express. https://indianexpress.com/article/india/marital-rape-chhattisgarh-hc-section-377-7471940/


The impunity of marital rape. (2020, December 20). The Indian Express. https://indianexpress.com/article/opinion/columns/the-impunity-of-marital-rape/


Makkar, S. (2021). Marital rape - A non- criminalized crime in India. HARVARD HUMAN RIGHTS JOURNAL. Published. https://harvardhrj.com/2019/01/marital-rape-a-non-criminalized-crime-in-india/#_ftn6


Key Highlights of Justice Chandrachud’s Judgment in the Right to Privacy Case. (2017, August 27). The Wire. https://thewire.in/law/justice-chandrachud-judgment-right-to-privacy



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