What is the perception of an ideal Indian wife in our society? Is it an image
of a successful woman, a devoted wife and a loving mother? Or is it that of a
wife suffering violence and sexual assault with acceptance of it? The latter
seems barbaric, does it not? But the Indian law supports that stance and so do
our politicians. Marital rape is legal in India. This article will take you
through the different aspects of it.
In March, an open letter was penned by over 5,000 women rights activists in
India asking the then chief justice SA Bobde to step down and apologise. The
chief justice, Justice Bobde asked two disgusting questions. He asked a man
accused of raping a minor girl if he was ready to marry her.
The other appalling
question in a different case of marital rape from the chief justice was, "When
two people are living as husband and wife, however brutal the husband is, can
the act of sexual intercourse between them be called rape?" This image of India
promoted by a reputed judge is of how India stands upon the family values of
non-consensual sex and blind devotion to husbands.
The marital exception to the IPC's definition of rape was drafted based on
Victorian patriarchal norms that did not recognize men and women as equals. All
the property owned by a woman was passed on into the hands of the husband under
the "Doctrine of Coverture." Coverture arises from the legal fiction that a
husband and wife are one person. When the IPC was drafted in the 1860s, a
married woman was not considered an independent legal entity and had no legal
obligations or rights and was either seen as the property of their husbands or
Today we are neither under Victorian patriarchy our women have their own
identity. When the makers of our laws, the British have discarded their
discriminative, imperial and patriarchal ideologies and have criminalised
marital rape, why are we a step behind?
The Law Commission has laid various arguments regarding the validity of the
clause. It was argued that since all other factors like domestic violence were
criminalised, there was no analysis as to why marital rape is shielded from the
law. This argument was rejected since it was feared that the criminalisation of
marital rape would lead to "excessive interference with the institution of
Following this ideology, criminalising domestic violence is also
interference in marriage, and so is a divorce between the couple. But still,
both are regulated by the court. Marital rape proves to be an exception that can
increase the number of unreported cases of rape in India and also portrays a
dark reality of the sanctity of marriage in India.
A parliamentary standing committee has said if marital rape was made a crime,
the family system will be under stress and it could lead to practical
difficulties. In 2016, the government told the Rajya Sabha that the concept of
marital rape was an international one and cannot be applied in the Indian
context due to factors of poverty, illiteracy, social customs, religious beliefs
and the 'sanctimony of marriage.'
The financial dependency of some women on their husbands is often used as a
vague defence. But needs to be highlighted that these might be the women most at
risk of sexual assault and domestic violence. Just like the PWDA creates a
provision to provide monetary relief to the aggrieved person, similarly, women
suffering marital rape can also be provided with the same relief.
stage could be providing necessities like shelter, food, clothing and water and
the second stage could be rehabilitating them to either self-help groups or
vocational jobs. Using the lack of assets of women and their economic dependency
on their husbands cannot be a defence used to defend the criminalisation of
Let's look at how the law has been framed in our country.
While the IPC does not criminalise marital rape, a specific form of marital rape
is criminalised i.e., consensual sexual intercourse when the wife and husband
are living separately on account of judicial separation or otherwise. This
creates a discriminative wall between women living with their husbands and
couples that are leaving separately. �376B of the IPC states:
"Whoever has sexual intercourse with his own wife, who is living separately,
whether under a decree of separation or otherwise, without her consent, shall be
punished with imprisonment of either description for a term which shall not be
less than two years but which may extend to seven years, and shall also be
liable to fine"
This section indicates that in �376 of the IPC consent is presumed in contrast
to this clause since the husband and wife are not living together. Living
together raises a presumption that the wife has consented to sexual intercourse
with the husband.
A technicality can come into perspective here that the couples
living separately might still be married and not necessarily divorced, so there
is no basis to criminalise marital rape in this case too. If one tries to
understand the language and analyse this law, it is clear that the law assumes
that a married woman has consented to sexual intercourse with the husband. It is
barbaric how there is a difference in conviction when a couple is separated and
does not live together.
Politicians and lawmakers have often suppressed the urgency for the
criminalisation of marital rape by giving a vague defence that women have
existing resources and laws to protect them. This includes the Protection of
Women from Domestic Violence Act, 2005 ('PWDVA, 2005') and various other
personal laws dealing with marriage and divorce. But these laws are not enough
and they have various loopholes to tend to. Let's look at a critical analysis of
a law that is supposedly a "protection" for women suffering marital rape.
Looking at article 498 of the Indian Penal Code and trying to relate marital
rape under the concept of "cruelty" in 498A. There is a stark difference between
the concept of cruelty and rape. Firstly, the maximum punishment under 498A can
only be extended up to three years with/without a fine. The maximum punishment
for rape is life imprisonment and cannot be less than 10 years. This proves that
this act does not even scrape the surface of the severity of rape.
Whoever, being the husband or the relative of the husband of a woman, subjects
such woman to cruelty shall be punished with imprisonment for a term which may
extend to three years and shall also be liable to a fine.
Adding to the shortcomings, the definition of cruelty and mental assault may
vary from case to case and classifying rape under that banner can prove to be
difficult. These loopholes lay out how article 498A has been used to mask the
need for the criminalisation of marital rape.
Let's look at an infamous case by the Chattigrah high court, Dilip Pandey and
others v. the State of Chhattisgarh.
In the instant case, the complainant has reported that the applicant No. 1/
husband has many times, without her consent, made unnatural physical relations
with her and even inserted his finger and radish also in her private part.
Although, except insertion of finger and radish in her private part, what other
unnatural physical relation he made with the complainant, she has not stated,
which is a matter of evidence.
But, only on that ground, charge framed under
Section 377 of the I.P.C. cannot be said to be erroneous at the stage of framing
of charge, especially, in terms of Section 377 of the I.P.C. where the dominant
intention of the offender is to derive 7 unnatural sexual satisfaction,
repeatedly insert any object in the sex organ of the victim and consequently
derives sexual pleasure, such act would constitute as carnal intercourse against
the order of nature and such act would attract the ingredient of an offence
under Section 377 of the I.P.C. In view of the above, the judgment of Nimeshbhai
Bharatbhai Desai (supra) is of no help to the applicant No. 1/husband with
regard to the charge under Section 377, of the I.P.C.
In contrast to this decision by the High Court, This is what section 377 of the
IPC says about unnatural offences
" Whoever voluntarily has carnal intercourse against the order of nature with
any man, woman or animal, shall be punished with 1 [imprisonment for life], or
with imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine"
Penetration is sufficient to constitute the carnal intercourse
necessary to the offence described in this section."
It should be noted how penetration into a sex organ is enough for it to
constitute carnal intercourse and the offence can be constituted under section
377. The man who forcefully penetrated his wife and caused her pain and
discomfort has walked free because even when section 377 clearly states the
Criminalising marital rape gives women their reproductive rights and breaks the
barrier between married and unmarried women. How is it fair for us to label rape
as legal just based on marriage? For those who think criminalsing is not a
pressing matter, this law symbolises the "sanctity of marriage" as love, respect
along with forced sex. Crminilising it would put India a step forward in
protecting its married women and would include it in the 150 countries that have
recognised the sexual rights of all women equally. It is about proving how India
stands upon the values of peace and harmony in marriages and not force and
This Article Does Not Include Recent Developments And Presents An Analysis Of
Parallel Laws Used To Include Marital Rape Under Their Ambit*
Award Winning Article Is Written By: Ms.Suhana Sharma
Authentication No: JU217982532326-28-0622