The definition of rape codified in Section 375 of the Indian Penal Code ("IPC")
incorporates all types of rape including non-consensual intercourse with a
woman. Be that as it may, Exception 2 to Section 375 exempts unwilling sex
between a husband and wife more than fifteen years old from Section 375's
definition of "rape" and in this way inoculates such acts from arraignment.
According to current law, a wife is presumed to convey perpetual consent to
engage in sexual relations with her better half subsequent to going into
conjugal relations. While unwilling sexual contact between a husband and a wife
is perceived as a criminal offense in pretty much every nation of the world,
India is one of the thirty-six nations that still have not criminalized marital
The Supreme Court of India and different High Courts are presently overwhelmed
with writ petitions testing the dependability of this exception, and in a recent
landmark judgment, the Supreme Court criminalized unwilling sexual contact with
a wife between fifteen and eighteen years of age.
Marital Rape is illicit in 18 American States, 3 Australian States, New Zealand,
Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and
Czechoslovakia. Rape in any form is a demonstration of absolute embarrassment,
debasement and infringement instead of an obsolete idea of penile/vaginal
infiltration. Limiting a comprehension of assault reaffirms the view that
rapists treat rape as sex and not savagery and consequently, support such
The significance of consent for each individual decision can't be over
underscored. A lady can secure her entitlement to life and freedom, yet not her
body, inside her marriage, which is simply amusing. Ladies so far have had plan
of action under section 498-A of the IPC, managing dealing with cruelty, to
secure themselves against perverse sexual conduct by the spouse
Due to the ancient standard that marital rape isn't effectively perceived as an
offense, it is expected by the law that, marriage alludes to the spouse offering
consent to all the marital commitments
including sex. Despite the fact
that India as a country depends on the hypothesis of value, regardless it has
not perceived the privilege a lady has in controlling conjugal intercourse as a
part of equality.
As the country comes up short on any kind of legitimate arrangements with
respect to marital rape, the unfortunate casualties' only resort is to go to
court. Courts have different methods to recognize marital rape and have given
severe punishment however because of the absence of lawful arrangements, they
are bound and consequently can't portray "compelling intercourse by a man upon
his significant other" as marital rape. Thus, the Judiciary isn't sufficient and
it requires the assistance of the legislature. The laws need to adjust to the
changing truth of society.
Infringement of Article 14
Article 14 of the Indian Constitution guarantees that:
[t]he 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 ensures equality to all, Indian criminal law oppresses
female victims who have been assaulted by their very own spouses. At the time
the IPC was drafted during the 1860s, a married lady was not viewed as an
independent legal entity.
She was viewed as the property of her better half. Thus, she didn't have a
large number of the rights presently ensured to her as an independent legal
entity, including the privilege to document a complaint against another under
her very own identity.
Exemption 2's distinction among married and unmarried ladies additionally
disregards Article 14 to the extent that the order made has no normal connection
to the fundamental motivation behind the statute. Exception 2 abuses the
privilege to fairness revered in Article 14 to the extent that it victimizes
wedded ladies by denying them equivalent assurance from rape and lewd behavior.
The Exception makes two classes of lady's dependent on their conjugal status and
vaccinates activities executed by men against their spouses. In doing as such,
the Exception makes conceivable the exploitation of wedded ladies for reasons
unknown other than their conjugal status while shielding unmarried ladies from
those equivalent demonstrations.
Infringement of Article 21
Exemption 2 is likewise an infringement of Article 21 of the Indian
Constitution. Article 21 expresses that "no person shall be denied of his
life and personal liberty except according to the procedure established by law"
The Supreme Court has deciphered this provision in different decisions to
stretch out past the simply exacting assurance to life and freedom. Rather, it
has held that the rights revered in Article 21 incorporate the rights to
wellbeing, security, respect, safe living conditions, and safe condition, among
In Francis Corallie Muin v. Association Territory of Delhi
case, idea to
life under Article 21 of the Constitution was featured. As per this case Article
21 consolidates the privilege to live with human pride and all that goes with
it, to be explicit, the basic fundamentals of life, for instance, sufficient
sustenance, dress and shelter over the head and facilities for perusing,
composing and communicating in different structures, openly moving about and
blending and mingling with other people. The privilege to live with human pride
is a standout among the most principal part of the privilege to life which sees
the autonomy of an individual.
Furthermore, Exception 2 disregards Article 21's entitlement to carry on with a
solid and honorable life. As referenced above, it is very much settled that the
"right to life
" visualized in Article 21 isn't only a privilege to exist.
For instance, there can be no contest that each resident of India has the option
to get social insurance or that the state is required to accommodate the
soundness of its constituents.
In this vein, the courts have over and over held that the "right to life
incorporates a privilege to live with human dignity. Yet the very existence
of Exception 2, which fails to deter husbands from engaging in acts of forced
sexual contact with their wives, adversely affects the physical and mental
health of women and undermines their ability to live with dignity.
The Indian government has contended that marital rape can't be criminalized on
the grounds that what may appear as though rape to the spouse may not be rape
according to other people. This announcement alludes to how backward Indian
culture is and has turned into a standard resistance in rape cases. Rape is just
about the person in question and his or her assent. The wrongdoing is submitted
when the lady feels violated.
That is the main standard that must be taken a gander at. Social impression of
the episode or the lady's conduct can assume no job here. Consequently, it
doesn't make a difference whether there is a uniqueness between the perspectives
on the spouse and others. This can't be a measuring stick to deny her equity and
state that what befell her was not rape. Permitting spousal rape and not
criminalizing it, adequately implies that human respect can be agreed lesser
incentive on account of a lady when she is married. It is naturally off-base and
hazardous to guarantee nobility and sexual self-governance to the husband and
not the wife.
The contention that the act can't be criminalized to secure the dependability of
the establishment of marriage is base and strange. Just when two accomplices are
given equivalent rights over their bodies can the "sacrosanct
of marriage flourish. Nations like the UK, United States and others have
criminalized marital rape. This is a demonstration of the way that India is
holding onto an old and backward law.
It is nonsensical, morally and ethically off-base. Rape is an inexcusable
wrongdoing whether a lady is married or not. In a nation overflowing with
misguided judgments of rape, profoundly imbued social and religious
generalizations, and changing social qualities, globalization needs to quick
adjust the letter of law.
- Indian Penal Code, Section 375, No. 45 of 1860, India Code.
- Marital Rape in India: 36 countries where marital rape is not a crime,
India Today, Mar. 12, 2016.
- Independent Thought v. Union of India, (2013) 382 SCC (2017) (India).
- Article 14 of the Indian Constitution, 1949.
- To Have and to Hold: The Marital Rape Exemption and the Fourteenth
Amendment, 99(6) Harv. L. Rev. 1255, 1256 (1986).
- Article 21 of the Indian Constitution.
- Regional Director ESI Corpn. v. Francis de Costa, 1993 Supp (4) SCC 100;
5 D.D. Basu, Commentary on the Constitution of India, 4711 (LexisNexis 2015)
- C.E.S.C. Ltd. v. Subhash Chandra, (1992) 1 SCC 441 (India).