"Her friends used to tell her it wasn't rape if the man was your husband.
She didn't say anything but inside she seethed: she wanted to take a knife to
"- F.H. Batacan
Its 2022 & India remains one of 36 countries where it's not a crime for a
husband to rape his wife. This exception features in Section 375 of the Indian
Penal Code that defines rape as a criminal offence. A man commits rape if he is
Section 375 of the Indian Penal Code (IPC) categorises acts of penetration sans
informed consent as rape. However, it categorically mentions that sexual
intercourse with one's wife who is over the age of 15 won't constitute the
offence of rape. The legal age of consent was raised from 15 to 18 by the
Criminal Amendment Act of 2013.
Most countries in the world recognise that rape is a rape, and that rape is a
crime. So, what's holding India, a promising superpower
back? An analysis
points to several factors: an outdated IPC dating back to the Victorian era; a
rigidly patriarchal society, across India's myriad religions, that suppresses
women's voices and agency: and, a culture where marriage and family, in the
dated sense of the words, still hold utmost significance as the building blocks
of the society.
Documentation of how the Age of Consent law in India became related with the Age
of Marriage goes back to the struggle by social reformers in the latter half of
the nineteenth century to raise the Age of Consent to 12 years with the aim of
increasing the Age of Marriage.
Child marriages were common in India, and in some areas, it was practiced as
well. A movement by Indian social reformers became focused to stop this practice
by strongly advocating with the British government. Hindu reformist resisted
many attempts by the British to stop child marriages by way of legislation or
other reforms. The domain of private laws regarding marriages, property, and
inheritance was left alone by the British, to be ruled by the community's
religious and customary laws.
Prohibition of sexual intercourse before the age of consent applied to unmarried
and married girls irrespective of consent, and this worked as a proxy to
increasing the marriageable age of girls.
The Indian Penal Code (IPC) Section 37 created an exception to sexual activity
within marriage, and this was placed at 13 years. This exception to sexual
activity with an underage girl within marriage as legally acceptable is
tantamount to accepting marital rape.
Both the Age of Consent and Age of Marriage continued to increase till the year
1978, always with exception to marital rape set lower than the Age of Consent.
This shows that family was shown leniency to perform the marriage of girls even
below the specified age of marriage and reinforced the sexual right of a husband
over an underage wife.
Status of Marital Rape in India in 2022
- The definition of rape codified in Section 375 of the Indian Penal Code
(IPC) includes all forms of sexual assault involving non-consensual
intercourse with a woman
- Non-Criminalization of marital rape in India emanates from Exception 2
to Section 375.
- 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 marital relations.
- The concept of marital rape in India is the epitome of what we call an
"implied consent". Marriage between a man and a woman here implies that both
have consented to sexual intercourse, and it cannot be otherwise.
- As per now, The Delhi High Court is hearing a batch of petitions
challenging the exception to Section 375 of the Indian Penal Code, which
exempts forceful sexual intercourse by a man with his own wife from the
offence of rape.
- The petitions against marital rape have been filed by NGOs RIT
Foundation, All India Democratic Women's Association and two individuals.
Remedies Under Marital Rape
Availability of other provisions in various legislations including Sections
498A, 304B of IPC, Domestic Violence Act, and other civil remedies, are
insufficient to deal with the offence of rape under sec. 375, as regards to a
wife alleging rape by her husband. There is no express commonality between the
The ingredients of sec. 375 are separate and there is no reason why sec. 498A
can be used as a substitute for Section 375. It can be used in addition the
removal of exception 2 from Section 375 of the Indian Penal Code will not amount
to the creation of a new offence. 'Consent' is an underlying condition in the
exceptions to Section 375 IPC.'Sexual acts' when done 'with consent' are not an
offence. However, when the same sexual acts are done "without a woman's
consent", that becomes the fundamental foundational basis of invoking Section
Violative of Article 14 & 21
Under Art 14, the Indian Constitution guarantees equality, the marital law
exception discriminates against females who have been raped by their own
husbands by denying them equal protection from rape and sexual harassment.
The exception to Section 375 creates two categories of women based on their
marital status and prioritizes one unmarried woman in protecting them from rape
than married ones�that's a direct contradiction of every Indian citizen being
guaranteed equal protection of laws. Exception 2 is also a violation of Article
21 that states:
No person shall be denied of his and personal liberty except according to the
procedure established by law.
Over recent years, as evolving contexts throw up new challenges to citizens
fundamental rights, the Supreme Court has often interpreted Art 21 to extend
beyond the literal guarantee to life and liberty and include the rights to
health, privacy, dignity, safe living conditions and safe environment and
continuous internet among others.
In Suchita Srivastava v. Chandigarh Administration
, for instance, the
Supreme Court said the right to make choices about sexual activity is very much
within the scope of rights to personal liberty, privacy, dignity, and bodily
integrity under Article 21 of the Constitution.
The strongest argument in terms of legal precedents can be found in Justice
K.S. Puttuswamy (Retd.) V. UOI
, in which the Supreme Court recognized the
right to privacy as a fundamental right and specifically said that includes
"decisional privacy reflected by an ability to make intimate decisions primarily
consisting of one's sexual or procreative nature & decisions in respect of
Forced sexual intercourse & cohabitation is a violation of that fundamental
right. Since this ruling doesn't differentiate between married & unmarried women
& there is no explicit ruling that says women lose their fundamental right to
privacy upon marriage�all women have the fundamental right to be able to consent
and be able to say no.
Marriage doesn't mean that the woman is all time ready, willing & consenting for
sexual intercourse. The man will have to prove that she was a consenting party.