Abstract
This research provides a critical analysis of the legal classification of marital rape in India, focusing on the effectiveness of criminal justice reforms in tackling this issue as it pertains to domestic violence legislation. Despite an increase in public awareness and advocacy efforts, the phenomenon of marital rape continues to remain outside the purview of criminalization in Indian jurisprudence. This exclusion can be attributed primarily to deep-seated cultural and societal perceptions regarding the institution of marriage and the concept of consent.To elucidate this legal exemption, the study examines the experiences of women who have faced domestic violence, specifically concentrating on those within the institution of marriage. It reveals a significant disjunction between judicial interpretations, the established legal framework, and the advancing comprehension of consent in marital contexts. Furthermore, the research addresses prospective legal reforms, drawing attention to the necessity for a more refined and inclusive definition of consent that applies uniformly in matrimonial settings. Through a detailed case study and the evaluation of pertinent legislative measures, this work highlights the pressing need to acknowledge marital rape as a grave infringement of human rights. The findings advocate for a reformation of Indian laws to ensure equitable protection and justice for all individuals engaged in marital relationships. This investigation aspires to bridge existing gaps in legal scholarship, thereby providing valuable information for policymakers and activists who are committed to implementing reforms aimed at the eradication of gender-based violence in India.
Keywords: marital rape, domestic violence, Indian law, consent, legal reform, criminal justice
Historical Background and Legal Framework
The concept of marital rape, origins of the marital rape and its exemption can be systematically traced to English common law, with specific regard to the declaration made by jurist Sir Matthew Hale in his work, History of the Pleas of the Crown, published in 1736. Hale articulated the following assertion: “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”[1]This legal doctrine effectively conferred upon husbands’ irrevocable sexual rights over their wives, rendering the latter akin to property. Such a perspective has endured for centuries, becoming deeply entrenched not only in British law but also in the legal frameworks of various British colonies, including India. The prevailing notion that marriage connotes perpetual consent has contributed significantly to the legal invisibility of sexual violence within the confines of marriage.The codification of marital norms in colonial India was exemplified by the Indian Penal Code of 1860, which included Exception 2 to Section 375.[2] This exception stipulated that sexual intercourse by a man with his wife, provided she was above a specified age, did not constitute rape.The endurance of this exemption for over a century can be attributed to the dominance of patriarchal structures, religious conventions, and a general societal reticence to address issues surrounding marital relations and domestic violence. This prevailing attitude was indicative of a belief that wives had an obligation to fulfil sexual duties, with any challenge to this paradigm seen as a threat to the institution of marriage.Despite the slow and contentious progress of legal reform in this domain, significant judicial decisions have emerged that reinforce the rights and dignity of women. Notable cases, such as Joseph Shine v. Union of India (2019)[3] and Suchita Srivastava v. Chandigarh Administration (2009)[4], have called attention to the necessity of reevaluating women’s rights. Nevertheless, the exception regarding marital rape remains entrenched within the Indian legal framework, persisting both under the Indian Penal Code and the recently introduced Bharatiya Nyaya Sanhita, 2023.
This historical context illustrates that the marital rape exemption is not a cultural or religious inevitability. it is a colonial legal artifact that contradicts contemporary constitutional values and human rights standards.
The Indian Penal Code, enacted in 1860, delineates the legal definition of rape in Section 375, which also incorporates several exceptions. Among these, Exception 2[5] engendered significant controversy due to its stipulation that, “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” This provision effectively conferred immunity upon husbands, thereby precluding legal acknowledgment of sexual violence experienced by married women. The underlying rationale for such an exception can be traced to outdated notions embedded in British common law, which propagated the idea that marriage constitutes a framework of perpetual and irrevocable consent. Such a perspective has provoked extensive condemnation as it contravenes the fundamental rights of women, notably the rights to bodily autonomy and dignity. In response to this contentious issue, the Supreme Court, in the case of Independent Thought v. Union of India [(2017) 10 SCC 800][6], enacted a pivotal reform by increasing the age of consent for marriage from 15 to 18 years. This judicial intervention aimed to align the legal framework more closely with contemporary child protection standards while addressing the concerns regarding the rights and wellbeing of women in marital settings.
The Bharatiya Nyaya Sanhita, 2023 (BNS), which replaced the Indian Penal Code in an effort to modernize and Indianize criminal law, maintained the marital rape exception but with just a little modification to bring it into line with the age of consent:
Exception 2 to Section 67[7]: “A man’s sexual intercourse with his own wife, the wife not being under eighteen years of age, is not rape.”
The fundamental problem persists, even if the age limit has been brought into line with child protection legislation. When the wife is an adult, the law still does not treat non-consensual sex during marriage as a crime.
Judicial Interpretations and Key Cases
- Independent Thinking vs. Indian Union[8]
This significant case addressed the disagreement among the Indian Penal Code (IPC), the Protection of Children from Sexual Offences Act (POCSO)[9], and the Prohibition of Child Marriage Act (PCMA)[10]. The Court specifically analyzed Exception 2 to Section 375[11] of the Indian Penal Code, which permitted a husband to engage in sexual intercourse with his wife who is 15 years old or older without it being classified as rape.
The petitioner, a non-governmental organization focused on child rights, claimed that this exception infringed upon the basic rights of girl children, particularly concerning Article 14[12] (right to equality) and Article 21[13] (right to life with dignity) of the Constitution. It also directly contradicted the minimum marriage age established by the PCMA[14] and the definition of rape as defined by POCSO[15], which sets the age of consent at 18 years.
The Supreme Court revised Exception 2, increasing the minimum age for a wife in the marital rape exception from 15 to 18 years, thereby making sexual relations with a minor wife a criminal offense. The Court observed:
“A child continues to be a child regardless of the parents’ marital status. “
Despite being progressive, the ruling did not completely eliminate the exception, indicating that married adult women continue to lack the protection offered by rape laws. Nonetheless, the situation represented a legal recognition of the clash between marital protection and individual rights, paving the way for more extensive challenges.
- RIT Foundation & Ors. v. Union of India[16]
This ongoing Public Interest Litigation (PIL) directly questions the constitutional legitimacy of the marital rape exception, which was previously in Section 375[17] of the Indian Penal Code and is now included in Section 67 of the Bharatiya Nyaya Sanhita, 2023[18].
The petitioners, which include non-governmental organizations, activists, and legal professionals, argue that the exception for marital rape:
Breaches Article 14[19] (equality before the law) by providing a specific group of individuals (husbands) protection from legal action.
Violates Article 15[20] (which prohibits discrimination) by treating women unfairly due to their marital status.
Violations of Article 21[21] (the right to life and personal liberty) occur when married women are denied their bodily autonomy and dignity.
In 2022, the Delhi High Court issued a divided ruling:
Justice Rajiv Shakdher stated that the marital rape exception violates the Constitution, as it compromises a woman’s right to control her own body and continues the practice of coercive sexual relationships.
Justice C. Hari Shankar expressed disagreement, contending that making marital rape a crime could disrupt the foundation of marriage, and he believed that this decision should originate from Parliament.
Because of the conflicting views, the matter has been sent to the Supreme Court, where it is still awaiting a decision. This case is significant as it has the potential to act as a decisive moment in eliminating legal protection for marital rape in India.
- Joseph Shine v. Union of India[22]
Although this case mainly addresses the decriminalization of adultery,it is important for the laws regarding marital rape because the Supreme Court acknowledges the right to sexual autonomy in marriage.
The Court annulled Section 497 of the IPC[23], which made adultery a crime solely when a man engaged in the act with a married woman (without the consent of her husband), thereby considering the woman to be akin to property. In taking this action, the Court noted several forward-thinking points:
- Marriage does not eliminate the personal independence of either partner.
- The law should regard women as equal partners rather than as lesser individuals.
- Consent is fundamental to sexual relationships, regardless of whether individuals are married or not.
Justice D. Y. Chandrachud, in his agreement, noted:
“The ability to make decisions regarding one’s sexuality is included in the right to privacy. “
These findings directly challenge the reasoning behind the marital rape exception, which assumes that consent is permanently given once married. The reasoning presented in Joseph Shine suggests that the values of autonomy, privacy, and dignity should be upheld in marriages, which logically leads to the conclusion that marital rape should be made illegal. While Independent Thought established the foundation for safeguarding minors, and Joseph Shine broadened the principle of marital autonomy, the RIT Foundation directly challenges the immunity associated with marital rape. Together, these decisions show a changing awareness in the legal system regarding consent and equality in marriage.
Nevertheless, despite this direction, the courts have not yet firmly classified marital rape as a crime against adult women. The upcoming ruling by the Supreme Court has the potential to either affirm the constitutional rights of married women or maintain the legal oversight that allows for sexual violence in marriage.
Comparative Jurisprudence
The development of legal ideas concerning sexual autonomy, human rights, and gender equality has resulted in the prohibition of marital rape in numerous legal systems. These reforms demonstrate that legal systems have the ability to overcome obstacles from culture, religion, and institutions by means of forward-thinking judicial interpretation and new laws.
In United Kingdom in the case of R v. R [1991] UKHL 12[24], held by The House of Lords, which is now referred to as the Supreme Court of the UK, unanimously determined that marital rape constitutes a criminal offense.
Until 1991, English common law adhered to the Hale Doctrine, which maintained that a husband could not be considered guilty of raping his wife. In the case of R v. In R, the Court determined that:
The alleged marital exemption is now outdated and disrespectful to contemporary views on equality, dignity, and individual rights.
The Court stressed that marriage is a relationship between equals and that agreement is fundamental to all sexual interactions. This ruling effectively eliminated the marital rape exemption in the UK, bringing the law in line with human rights standards and the European Convention on Human Rights.
South Africa’s Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007[25].
After apartheid, South Africa made significant changes to its sexual offense laws to ensure they matched the constitutional values of dignity, equality, and non-discrimination.
The amendment made in 2007:
Clearly defined marital rape as a crime, thereby categorizing all types of non-consensual sexual acts as offenses, irrespective of the relationship between the offender and the victim.
Revised sexual offenses by employing gender-neutral terms, concentrating on the behaviour rather than the identities of the individuals involved.
The reform was motivated by the understanding that rape is a breach of physical integrity and human rights, and that being married should not be used as a justification. South Africa’s Constitution, frequently praised for its advanced position on human rights, significantly influenced this legal change.
Canada implemented the Reform in the year 1983[26].In 1983, Canada made changes to its Criminal Code to eliminate the exception that allowed marital partners to be exempt from being defined as perpetrators of rape.
The updated legal structure acknowledges that consent needs to be continuous and voluntarily provided, even in the context of marriage.
It considers all sexual acts without consent as criminal offenses, regardless of whether the individuals are married. It permits spousal testimony in court cases concerning sexual assault, thereby enhancing the prosecution’s case.
Canada’s decision was additionally shaped by feminist movements and the growing acknowledgment of domestic and sexual violence as matters of public policy rather than private family concerns.
Apart from Canada, South Africa and United Kingdom countries like United state, Germany and France have also criminalized marital rape. Which shows the courts around the world have acknowledged that marriage does not nullify the right to bodily autonomy or sexual consent.
The Challenge of Constitutional and Human Rights
Breach of Article 14[27] – Equality Under the Law
Article 14 ensures that every individual is treated equally under the law and receives the same legal protections. The exception concerning marital rape:
Establishes an unfair distinction between married and unmarried women, offering protection to the latter while leaving the former without such safeguards.
It does not meet the criteria for reasonable classification because there is no logical connection between the purpose of rape laws (which are to safeguard bodily autonomy and penalize sexual violence) and the marital exception.
It strengthens gender inequality, as it places women under a different legal standard solely due to their marital status, a type of systemic discrimination.
Breach of Article 21[28] – Right to Life and Individual Freedom
The Supreme Court has consistently understood Article 21 to encompass the rights to dignity, personal integrity, privacy, and sexual freedom. Marital rape attacks the core of these rights by:
Refusing a woman the authority over her own body in the context of marriage.Diminishing her legal status to that of a mere object, instead of recognizing her as an equal partner in the marriage.
Disagreeing with court decisions such as Suchita Srivastava v. Chandigarh Administration (2009)[29], in which the Court acknowledged that choices related to one’s own body are essential to individual freedom.
Discrepancy with Global Human Rights Standards
India has agreed to several international treaties and agreements that require the end of violence based on gender, which include:
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)[30] requires countries to safeguard women from violence, including that which occurs in domestic settings.
The UN Declaration on the Elimination of Violence Against Women (1993) acknowledges that violence occurring in marriage is a violation of human rights.
The UN Committee on CEDAW has consistently called on India to make marital rape a crime. By keeping the exemption, India does not meet its responsibilities under international law.
Recommendation
Significant legal changes must tackle the absence of laws, the social stigma, and the indifference of institutions related to marital rape. The upcoming suggestions are intended to create a structure that safeguards survivors and advances gender equality:
- Remove Exception 2 from Section 67[31]
The initial and most important step is to eliminate the legal exemption that protects husbands from being prosecuted for rape. The law should acknowledge that marriage does not automatically imply consent. Every woman, whether married or single, is entitled to the same level of protection under criminal law.
- Present a Legal Explanation of Consent
The legislation ought to be revised to incorporate a clear and positive definition of consent that is consistent with international guidelines. This encompasses:
- A clear, voluntary, and informed consent to participate in sexual activity.
- Acknowledgment that consent may be retracted at any moment.
- An explanation that being quiet or not resisting does not mean agreement.
This framework would shift Indian rape laws from concentrating on force and violence to concentrating on autonomy and respect.
- Create Transitional Justice Systems
Acknowledging the hardships endured by individuals who have experienced marital rape, the government should establish strong support systems, such as:
- Programs for rehabilitation that offer counselling, legal assistance, and financial support.
- Places of refuge and secure accommodations for individuals who are compelled to vacate their matrimonial residences.
- Dedicated trauma care facilities and availability of healthcare and psychological support services.
- Raise Awareness Among Judiciary, Law Enforcement, and Legal Practitioners
Longstanding patriarchal beliefs within law enforcement and the judicial system frequently obstruct the achievement of justice. Training programs within institutions should be established to:
Provide training for judges, law enforcement officers, prosecutors, and attorneys on issues related to gender justice and constitutional rights.
Encourage a legal system that understands trauma and focuses on the experiences of survivors. Promote a change from questioning that focuses on assigning blame to inquiry that emphasizes providing support. This training ought to be established as a formal program through the National Judicial Academy and the State Judicial Academies.
Conclusion
The marital rape exception found in Section 67[32] of the Bharatiya Nyaya Sanhita, 2023 serves as a clear indication of India’s colonial past and its male-dominated legal system. In spite of advanced interpretations of constitutional rights and explicit international responsibilities, India still fails to provide married women with the essential protection against sexual violence.
The continued existence of this exception conveys a troubling message: that a woman forfeits her right to give consent as soon as she enters into marriage. This goes against the values of justice, equality, and dignity established in the Constitution.
India is currently at a critical pointeither to honor the constitutional guarantee of equal rights or to permit outdated ideas of marriage to keep denying justice to countless women. The making of marital rape a crime is not just a change in the law, it is a necessity that relates to the constitution, ethics, and human right. The moment to take action is at this point.
[1]Marital Rape: A Crime in Many Countries, an Exception in Many More, Indian Express (Sept. 13, 2017), https://indianexpress.com/article/explained/marital-rape-a-crime-in-many-countries-an-exception-in-many-more-4821403/
[2] Indian Penal Code section 375 (1860).
[3]Joseph Shine vs UOI, (2018) 2 SCC189.
[4]Suchita Srivastava v. Chandigarh Admin., (2009) 9 SCC 1
[5]Supra 2.
[6]Independent Thought v. Union of India [(2017) 10 SCC 800]
[7]Bharatiya Nyaya Sanhita, No. 45 of 2023, Section 67.
[8]Supra6.
[9]Protection of Children from Sexual Offences Act, No. 32 of 2012.
[10]Prohibition of Child Marriage Act, No. 6 of 2007.
[11]Supra 2
[12]India Const., Art 14.
[13]India Const., Art 21.
[14]Supra10.
[15]Supra 9.
[16]RIT Foundation v. Union of India, W.P. (Crl.) No. 284/2015 (Del.HC).
[17]Supra 2.
[18]Supra 7.
[19]Supra10.
[20]India Const., Art 15.
[21]Supra11.
[22]Joseph Shine v. Union of India, (2019) 3 SCC 39.
[23] Indian Penal Code, Section 497 (1860).
[24]R v. R [1991] UKHL 12.
[25]Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32 of 2007 (S.Afr.)
[26]Criminal Code, RSC 1970, c C-34 (Can.).
[27]Supra 10.
[28]Supra 11.
[29]Supra 4.
[30]U.N. Comm. on the Elimination of Discrimination Against Women (CEDAW), General Recommendation No.19, U.N. Doc. A/47/38/ (1992).
[31]Supra 7.
[32]Supra 7.