A man is a man; an act is an act; rape is a rape, be it performed by a man the "husband" on the woman "wife".  - Justice M. Nagaprasanna[2]

We all know that rape is the most heinous and traumatizing form of violence committed against women which defiles her body as well as her soul, now, imagine a situation in which this act of brutality is committed with a women within four walls of her house on daily basis and she can do nothing about it as this gruesome act is not a criminal offence in her country, now you must be thinking that it is unthinkable, it is indeed, but sadly it is a harsh reality.

The concept of marital rape, despite being gravest form of human right violation and sexual abuse, is still not considered as a crime in our country as the term "marital" when pre-fixed with "Rape" serves to sanctify the crime. There are activists across the country who are demanding knock down of exception 2 to the definition of rape under Section 375 which makes marriage an exception to husband forcing sex upon his wife.

In this article, an attempt has been made to explain that what is marital rape and why it must be criminalized as for the time being Indian laws are dead silent on this dreadful crime which is not only a women's issue but a social, health and above all a human issue.

What is Marital Rape?

The act of sexual intercourse without the consent of spouse or unwanted sexual intercourse obtained by force, threat of force, or physical violence, or when the other half is unable to give consent, is termed as Marital rape or rape within marriage.

Regrettably, In Recent years, marital or spousal rape has been the most prevalent form of sexual violence against women which breaks their dignity & self respect into pieces and extorts their sexual autonomy gravely violating their very basic, human and fundamental right of life and liberty.

Current legal framework on Marital Rape in India:

Section 375 [3]of Indian Penal Code, 1860, deals with provisions for rape. However, the whole controversy arises due to EXCEPTION provided under sub-section 2 of section 375 which grants legal immunity to offenders of marital rape by declaring that Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is NOT rape[4]. Originally, the age of consent was fifteen but recently in a verdict, it was raised to eighteen by the Supreme Court of India[5].

Further, punishment for rape is given under Section 376 of IPC, this section clearly says that whoever, EXCEPT in the cases provided by sub-section 2, commits rape shall be punished with imprisonment for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age.

So in IPC, marital rape is viewed as rape only if the wife is much less than 12 years old if she is between 12 to 15 years then an offense is committed, however, much less serious, attracting milder punishment. Thanks to this archaic law that a man could have non-consensual sex with her wife, whenever he wish, provided she is above 15 years of age. Hence, it is visibly clear that even in 21st century our criminal code does not recognize marital rape as a criminal offence and does not contain any punishment for that matter.

For the time being, all that we have to deal with this is, criminal cruelty clause under Section 498A of IPC which provides for sexual violence among spouses but nothing much substantial is given there. There is also The Protection of Women from Domestic Violence Act, 2005[6] under which a woman can sue her husband for marital rape; it recognizes marital rape as a form of domestic violence. The Act, considering this violation as a civil offence, has provided with few civil remedies such as fine, protection etc. which is highly insufficient to curb this menace.

Facts & Statistics:
There is enough evidence also available to prove the rampant cases of marital rape on national and international level as for instance, in a survey conducted by International Centre for Research on Women (2011) almost 20% of Indian men have, reportedly, at once carried out sexual violence against their female partner. In another study by National Health and Family Survey (NFHS-4) for the year 2015-16, 5.6% of women have been reported as victims under the category of "physically forced to have sexual intercourse with husbands even when she did not want to[7]".

Moreover, the recently released NFHS-5 report, found that 6% of women have experienced sexual violence in their lifetime[8]. But even amongst 6%, over 80% of them have said that their husband himself is the perpetrator. As per the National Crime Records Bureau in India, a woman is raped every 16 minutes and every 14 minutes she experiences cruelty and violence through her in-laws[9].

However, it has been difficult to pay attention to exact number of marital rape cases as it happens inside the privacy of a home and often goes unreported due to various reasons. Most of the women and their family members shy away from reporting such cases due to the sanctity attached to the institution of marriage, social stigma, the social, economic, emotional dependence on the spouse, lack of legal awareness and lastly the protracted and expensive legal procedure are some of reasons which cause women to bear in silence moreover, illiteracy is also big factor as largely women enter into marriage not being fully aware of their sexual rights.

Why Marital Rape should be criminalized:

1. This very exception clause of section 375 should be struck down as it is in stark violation of Article 14 of Indian constitution as it violates the right to equality insofar as it discriminates between married & unmarried women by denying the former equal protection from rape and sexual harassment, it also violates Article 15 which prohibits discrimination on basis of sex, allowing husband to make sexual relation against consent of wife. It also infringes their right to make choices regarding intimate relations which comes under ambit of right to privacy given to everyone under right to life & personal liberty or Article 21.
    
2. It is true that marriage is a socially acknowledged and approved sexual union between two adult individuals which among other reasons, also stemmed from the need to regulate sexual behavior so, obviously, in a way it implied unlimited and exclusive sexual access to one's own spouse but in no way it confers a license on men to rape their wives for sexual gratification as committing non consensual sex against the will of wife is against the pious institution of marriage itself. Our honorable chief justice D Y Chandrachud, while dealing with a case[10] of adultery has rightly said that "Marriage-whether it is a sacrament or contract-does not result in ceding of the autonomy of one spouse to another."
    
3. Apart from physical and sexual health, it also leaves a devastating effect on psychological health of victims as according to one study; women victims of marital rape are twice as likely to experience depression. Moreover, it also gives victims the miserable feeling of merely being an object brought home to gratify the sexual desires of her husband whenever demanded.
    
4. IPC drafted in 1860 has, by and large stood the test of time. But contemporary moralities are different from Victorian notions where women were subservient to men. There have been frequent amendments in the IPC to make it up to date. For instance, criminalizing adultery, homosexuality etc. were struck down by our courts over the years and several new provisions were introduced to combat different types of crimes such as dowry deaths, acid attacks, etc. hence, on similar lines, Exemption to marital rape from criminal liability is also a vestige that needs to be relooked to meet the present needs.
    
5. There are only countable cases of marital rape that are recorded the reason being that it is not recognized as crime due to which myriad of cases go unreported. Once it is recognized as crime, there will be availability of data and we will be able to know the exact occurrences of this as is the case with other similar crimes.
    
6. Marital rape is much scarier for a woman as in this case; she has to live with her tormentor on daily basis serving him cup of tea, each morning. They have to continue that pathetic marital relationship with their so called better half for social acceptance and social respect.
    
7. While being a progressive society we are getting advanced in every aspect to come at par with developed nations, it is unfortunate that when majority of democratic nations in the world have criminalized all forms of rape including marital rape, India along with 35 other nations such as Pakistan, Afghanistan, Iran, Saudi Arabia, Yemen, Bangladesh etc. continue to provide marital rape exemption to offenders and continues to sanctify a crime on ground of sacramental nature of marriage.

Potential Challenges In Criminalizing Marital Rape:

1. There are several existing laws for married women's rights which are less practiced as a remedy and more as a weapon to harass husbands and their families so there is a possibility of such laws being misused by disgruntled, angry, vengeful wives against their husbands.
    
2. It is also believed that such a provision could adversely affect the socially sacrosanct institution of marriage by preventing any possible reconciliation.
    
3. As it happens within personal space of only husband and wife, there is no 3rd person or direct evidence to attest the fact that there was absence of consent, due to near impossibility of proving marital rape; it is assumed that criminalization would only increase the burden of already overburdened judiciary.

What court has said so far?
Our government is still hesitant in striking this exception clause down in fear that it would destabilize the institution of marriage and will be used as a tool to harass husbands but on the brighter side our judicial system seems really supportive as it already has passed positive decisions in this direction for instance in November 2017, Gujarat HC condemned marital rape calling it a "disgraceful offence[11]".

Recently Karnataka high court also held that "rape is rape even when done by husband[12]", in may 2022 itself, Delhi High Court[13] gave split verdict on marital rape, while one of the judge said that "the offence of rape remains the same irrespective of who the offender is", the other one said that "sex between a wife and a husband is sacred". Finally, they granted a certificate of leave to appeal to the Supreme Court directly, opining that the case raises a "substantial question of law" which requires a decision from the apex court.

So, being constantly progressive, judiciary is indeed a ray of hope in criminalizing this horrendous act.

Conclusion
It is regrettable that a country like India, where, esteemed position has been accorded to wife since beginning, where, ancient scriptures bestows on wife the position of ardhangini; half of her husband and where sacred texts like Mahabharatha clearly says that:
"If a man wants to cherish the Goddess of prosperity he has to cherish his women first", does not make this detestable crime against a wife punishable, though various recommendations from United Nation Committee on Elimination of Discrimination against Women (CEDAW) to JS Verma's Committee have been made to criminalize it[14] but unfortunately even today marital rape is still not illegal in India.

The continuous exemption of marital rape from purview of criminal law only demonstrates the insidious suffusion of patriarchal values within our legal order as it treats wife to be exclusive property of her husband, having no rights of bodily integrity, therefore, there is an immediate requirement to remove the legal and moral sanction attached to marital rape by striking down the exception 2 to section 375 and bringing stringent laws in place, however, the true goal of criminalization can only be achieved if our society recognizes it as crime, stop giving social acceptance to these dehumanizing acts and stop suppressing the voice of victims by convincing them that it is not rape because it is marital.

End-Notes:

2. Hrishikesh Sahoo v. State of Karnataka, 23rd March, 2022
3. Indian Penal Code,1860,375,No. 45, Acts Of Parliament,1860,(India)
4. https://legislative.gov.in/sites/default/files/A1860-45.pdf
5. Independent thought v. union of India (2013),382 SCC(2017) India
6. Protection From Domestic Violence Act,2005,No.43, Acts of Parliament,2005(India)
7. https://timesofindia.indiatimes.com/,Nearly 1 in 3 women have suffered spousal physical, sexual violence; Family Health Survey,visited on 28 December 2022.
8. https://timesofindia.indiatimes.com/,Nearly 1 in 3 women have suffered spousal physical, sexual violence; Family Health Survey,visited on 28 December 2022.
9. NCRB's report reveals a rape happens every 16 minutes in India in 2019. economictimes.com. 2 October 2020
10. Joseph shine v. union of India, 2018 SC 1676
11. Nimeshbhai Bharatbhai Desai V. State of Gujarat 2018 SCC Online Guj,732,[104]62
12. Hrishikesh Sahoo v. State of Karnataka, 23rd March, 2022
13. RIT Foundation V. Union of India on 11 May 2022, Delhi HC
14. Marital Rape in India - Drishti IAS, last visited on 28-Dec,2022

Award Winning Article Is Written By: Ms.Mridulika Pandey, 3rd year law student

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