Various kinds of social evils have existed in India since time immemorial. Sati Pratha, Child Marriage, Forced Marriage, Devadasi system, Purdah system, etc., are some of those social evils. Many of these social evils have disappeared from India with the passage of time, but some of those are still very much alive and continue to trouble India. One of such social evil is marital rape. The definition of rape is the same, i.e., rape is sexual intercourse when there is lack of consent[i]. Marital rape refers to a rape committed when the culprit is the victim's spouse. Marital rape, a shameful offense that has damaged the confidence and trust in the institution of marriage, exists in India.

Today there are many countries in the world have recognized Marital rape as a criminal offense. These include countries like Albania, Algeria, Australia, Belgium, Canada, China, Denmark, France, Germany, Hong Kong, Indonesia, Ireland, Italy, Japan, Mauritania, New Zealand, Norway, Philippines, Scotland, South Africa, Sweden, Taiwan, Tunisia, United Kingdom, United States, while India is still having debate and discussions over the criminalizing of marital rape in the country. In India, there are no effective laws to challenge the menace of marital rape[ii]. In 2006 it was estimated that almost 100 countries considered marital rape a criminal offense, and India is not one among them. Despite law commissions, enactments, and new amendments, marital rape is still not considered as an offense in India.

In this research paper, we look at the situation of marital rape in India, societal attitudes that have shaped the prevailing discourse, cases in India relating to marital rape, and how marital violates the fundamental rights of women. Also, will look at the arguments for and against criminalizing marital rape in India, also will take a look at the international viewpoint of marital rape laws. This research aims to contribute insights to the ongoing discussion regarding marital rape in India.

Laws Regarding Marital Rape in India

Indian Penal Code's section 375 talks about rape and has a complex and lengthy definition of rape. IPC talks about rape as forceful and sexual assault that is committed without the consent of the victim. Even though Marital rape fulfills all these criteria, marital rape is still not considered as an offence in India. There have been plenty of legislation and amendments for violence against women in India, like laws against dowry, cruelty, and domestic violence. However, there are no laws in India against one of worst and most shameful wrongdoing in marriage which is marital rape.

Marital rape is a serious problem that millions of women worldwide have to suffer and face such abuse on a day-to-day basis. It is difficult to obtain accurate data about violence against women within the family, in part because women are reluctant to report incidents. Women are reluctant to approach the authorities because they are financially dependent on their husbands, and reporting the matter could very well result in the withdrawal of financial support, leaving them and their children without food and shelter.

Section 376 of the IPC deals with the punishment of rape. This section deals with sexual assault, in a very narrow view, lays down that an offense of rape within marital bonds stands only if the wife is less than 12 years of age; if she is between 12 to 15 years, an offense is committed, Once, the age of wife crosses 15, there is no legal protection given to the wife, in direct contravention of human rights regulations.

The Protection of Women from Domestic Violence Act came in the year 2005, which even though did not consider marital rape as an offence, the Act did consider it as a form of domestic violence.[iii]

Section 498 of the IPC was introduced for dealing with crimes against a woman. However, it deals with cruelty against women and not rape.

While the law does not criminalize marital rape but a particular form of marital rape is criminalized, i.e., non-consensual sexual intercourse when the wife and husband are living separately on the account of judicial separation or otherwise [iv], as section 376B of the IPC states:

"Section 376B: Sexual intercourse by husband upon his wife during separation: 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. Explanation - In this section, "sexual intercourse" shall mean any of the acts mentioned in clauses (a) to (d) of Section 375.'[v]

Marital Rape and Fundamental Rights

Article 14 of the Indian Constitution guarantees a fundamental right of equality before the law and also equal protection of laws to every citizen of India[vi] (Right to Equality). Granting marital rape an exception could very much violate Article 14 as non-criminalizing marital rape treats the wife as a subordinate of the husband and is not considered equal.

Article 21 of the Indian Constitution assures the right to life and the right to personal liberty.[vii] As marital rape is a violation of a woman's bodily autonomy and integrity; it can directly be seen as an infringement of the fundamental right.

Law Commission of India on Marital Rape

The law commission of India, on its 172nd law commission, requests for the deletion of the exception of marital rape in Section 375 of the IPC. It was argued that other instances of violence by a husband toward a wife were criminalized, there was no reason for rape alone to be sheltered from the operation of law[viii]. One of the suggestions given in this report was that marital rape ought to be criminalized.

The first suggestion was just that the deletion of the exception clause. The second suggestion by the law commission was that the law must specifically state that a marital relationship or any other kind of similar relationship is not a valid defense for the accused or relevant while determining whether consent was there or not and that it was not be considered a deciding factor for the purpose of sentencing.[ix] The Report came out of a petition made by Sakshi Vs. Union of India.

In light of this law commission report, the Criminal Law Amendment Bill, 2012 was drafted. In the bill, the word Rape was substituted for the word sexual assault. However, this bill also does not focus on criminalizing marital rape in India.

Social and Cultural Factors

Socio-cultural factors play an important role in the marital rape issue in the society. In some of societies, they view marriage as an implicit consent of sex, denying mutual agreement and communication. Especially in countries like India, where the society is patriarchal in nature, it is much more difficult to address about marital rape in general.

As India used to be a British colony in the 19th century, a majority of India's laws, including IPC and the marital rape exceptions, were the same as that of English Laws based on patriarchal Victorian norms.[x] Since law and culture are interdependent on each other, it is necessary to bring a change in the law regarding marital rape, as happened with the system of Sati in India.

In India, women are mostly considered a subordinate to men, in the Indian society, women are expected to be sacrificing, submissive, and accommodating, All of these traditional gender roles restrict women from their rights even within the boundary of marriage.

The concept of sex is still considered a taboo in the Indian society, and this often leads to a lack of sex education, leading to rape cases in the society, including marital rape. Also, as sex is still a taboo, it makes it difficult for women who are a victim of marital rape to open up and report it.

Family plays a vital role in the Indian society; many families pressurize their daughter into not reporting a case as this would bring the entire family shame in the community.

Cases Relating to Marital Rape In India

Hrishikesh Sahoo v State of Karnataka[xi]

A woman in 2017 filed a complaint against her husband accusing the husband for raping the wife and accusing the husband for abusing their daughter. The woman filed the complaint against the husband under IPC, including rape, cruelty. Also filed a complaint charging the husband with sexual assault under POCSO,2012 (Protection of Children from Sexual Offences Act)

As this case was pending on the sessions court, the husband decides to file a writ petition at the High Court of Karnataka regarding the exemption of marital rape in IPC and also pleaded for the charges that are against him to be dropped.

Justice M. Nagaprasanna rejected the petitioner's plea on February 23, 2022. The Court for the decision relied on a report released by Justice J.S. Verma Committee on 2013 which recommended the deletion of marital rape exception in IPC. The court held the view that exception of marital rape is regressive, and the exception violates the right to equality of the wife by treating the wife as a subordinate of her husband.

Then Mr. Sahoo, on May 10, 2022, filed a for a Special Leave Petition in the Supreme Court of India challenging the decision of the High Court of Karnataka. On July 19, 2022, a three-judge bench comprising former Chief Justice of India(CJI) N.V. Ramana and Justices Krishna Murari and Hima Kohli passed an interim stay on the decision of the High Court of Karnataka. The State of Karnataka filed an affidavit showing its support for the decision of the High Court of Karnataka.[xii]

In the High Court of Delhi, an NGO RIT Foundation, collectively with other parties, filed a petition challenging the exception of marital rape from IPC. A Bench comprising of Justices Rajiv Shakdher and C. Hari Shankar, on May 11, 2022, delivered a split verdict regarding the case. Justice Shakdher stated that the exception of marital rape was unconstitutional and the exception violated a woman's bodily autonomy and expression, whereas, on the other hand, Justice Shankar stated that in the institution of marriage, no matter whether the marriage was consensual or nonconsensual, it is a legitimate expectation making the exception to rape legal. The Judges granted permission to both the parties for an appeal for the decision at the Supreme Court.

A Dalit activist named Ms. Ruth Manorama, in late 2022, filed a petition at the Supreme Court challenging the marital rape exception in IPC. A Bench comprising of CJI D.Y Chandrachud and Justice P.S Narasimha on January 9th,2023, clubbed all these petitions together for a hearing.

The petitions are still in the Supreme Court as of the time of this research.

Arguments For Criminalizing Marital Rape in India

Equality and non-discrimination of women who are the victims of marital rape: India is a country that ranks below in the case of gender equality in the world. Criminalizing marital rape acknowledges women who are mostly the primary victims in the case of marital rape. It helps women to not to be in the subordination to their husband and sends a strong message that women are not the property of their husband and have the right to live without fearing about sexual abuse, even within the confines of marriage.

Invoking the spousal exception violates the "1993 Protection of Human Rights Act". Human rights, according to the law, include the freedom of speech and the right to life and liberty. Court in Independent Thought says that forcing a woman's husband to have sex with her minor daughter is a breach of the Protection for Human Rights Act. The law extends its protection beyond children. Forcible intercourse violates an "individual's human rights under the Human Rights Act." The 2005 "Protecting Women from Domestic Violence Act" made a similar conclusion. If the exception for marital rape is allowed despite evidence that it harms and damages women physically and emotionally, Domestic Violence Act's protections are clearly ignored.

Marital Rape Violates Article 21: Marital Rape violates Article 21, the "Supreme Court of India" determined that the right of women to a decent life is violated by rape. "Article 21 of the Constitution's right to life" is violated when an exception is made for marital rape. The Supreme Court's recognition of sexual violence as a breach of privacy safeguards women's right to privacy once more. "Article 21 of the Constitution", which protects women's privacy, makes it illegal to allow rape during marriage.

ICCPR, ICESCR, and "Convention on the Elimination of All Forms of Discrimination Against Women" (CEDAW) are all treaties that India has signed. India has also signed Universal Declaration of Human Rights" ("UDHR")[xiii]. International law accords, such as CEDAW, require countries to take "all relevant actions" to eliminate "all forms of discrimination that happens against women". CEDAW mandates all states to take required actions to abolish gender-based discrimination. Marital rape must be made illegal according to nation law under CEDAW's Due Diligence Duty[xiv].

Also, international laws also prohibit discrimination against women and rape in marriage. When a person is raped in marriage, their right to life is violated, and the right to life is a fundamental right that is recognised in all international human rights treaties and case law. Marital rape also violates the fundamental right of right to liberty and security of the person, and right to liberty is granted by both ICCPR and UDHR. International law mandates that the countries recognize marital rape as an act of violence against the woman involved and take reasonable measures to prevent and punish such actions. To fulfill international duties of India, criminalizing marital rape is essential.

Arguments Against Criminalizing Marital Rape in India

According to proponents, there is no need for criminalizing marital rape as an adequate legal remedy already exist. According to the proponents, there is no need for exemption of marital rape in IPC as Protection of Women from Domestic Violence Act and Section 498A of Hindu Marriage Act exist, according to these acts, any man that that intentionally or recklessly cause physical harm or sexual harm to woman face criminal charges[xv]. But the problem lies is that none of above-mentioned Acts specify marital rape as in, and that still is an issue.

Proponents think criminalizing is marital rape is close to being impossible because of the cultural disparities between the Western society and the Indian society. Even marriage itself has different definition in the Indian society and Western society. Also, in the, Indian society view the concept of marriage as sacrament and religious, so criminalizing marital rape may be considered as a threat to the institution of marriage. Cultural disparities will always exist, but by laws, we can change the view of society. For example, before 2018, homosexual people were not that welcomed in society, but after the 2018 judgment decriminalized homosexuality in the country, many homosexuals were accepted in society. This shows that the law can change the way how society views it.

Some proponents believe that the criminalizing of marital rape will lead to misuse of the law by the wife against the husband. According to proponents, if the exception is repealed, proponents fear that the wives may abuse the law in order to settle unrelated disputes by making false rape claims against their husbands. According to proponents, some women are already using Section 498A as a weapon against their husbands rather than a shield. Yes, misuse of the law may happen, but not criminalizing marital rape would lead to a lot of people not getting the justice that they deserve, so this argument cannot be considered a reason for the non-criminalization of marital rape in the country.

Proponents also believe that India's poverty, lack of education makes it difficult to criminalize marital rape. If a woman is not properly educated, she cannot file a case. Also, many rural women may never file a case due to the lack of transportation, courtroom access, and financial resources. The ability to influence the system in their favour is a rare one for Indian women, given the challenges they face in bringing claims against their husbands. [xvi]This is something that needs to be focused on; criminalization of marital rape is necessary, and at the same time, there should be proper awareness classes for all regarding the law and the governments need to ensure that all the women in the country get adequate access to transportation and courtrooms in the country in order for her to complain under marital rape.

International Viewpoint:

• United Kingdom
  Before the year 1992, marital rape was not illegal in the United Kingdom. During the 17th century, a treatise called 'History of the Pleas of the Crown by Sir Matthew Hale,' who is a former Chief Justice of the Court of King's Bench, said that.
  
  "the husband cannot be considered as guilty of the rape which was committed by the husband himself up on his wife, for by their mutual consent, the wife has to give up herself for this kind of sexual intercourse she cannot retract [xvii].'
  
  It is very surprising to note that Lord Hale did not offer any argument, case law, or legal basis to support his assertion. He asserted that, upon marriage, the wife automatically hands over her legal person to the husband and consents to all sexual acts, which cannot be retracted at any later date for no reason whatsoever.[xviii]
  
  The case of R vs R, which happened in 1991, changed everything completely, with marital rape finally being illegal in the United Kingdom. Now marital rape is a sexual offense under Sexual Offences Act 2003. According to the act, in the UK, the act of marital rape is not only just for married couples but also is applicable to those who live together as spouses but are not legally married. Women cannot be charged under this offense as this offense requires penile penetration, but if a woman commits a sexual act without the consent of her spouse, she can be charged with sexual coercion, Causing a person to engage in sexual activity without consent, Sexual assault. Sentencing for marital rape can range from 4 to 19 years. In some situations, life imprisonment can be handed out.
   
• United States
  Marital rape was not legalized in USA until the 1970, before that, they didn't have any law or reforms regarding the marital rape, before that, it was similar to the India situation where rape was defined as "forcing sexual intercourse on a person other than wife".[xix] Marital rape became illegal in the United States of America in 1993. By 1993 all 50 states removed the exemption of marital rape. Marital rape laws come differently under different states of USA.
   
• Canada
  Till 1983 marital rape was not illegal in Canada; now, Articles 271 and 278 of the Criminal Code criminalize rape on both men and women, including marital rape.
   
• Islamic Nations
  The view of marital rape in majority of Islamic countries is based on the religious interpretations and cultural traditions. Some Islamic countries have criminalized marital rape, while some did not.

International Human Rights Framework

International treaties like United Nations and World health Organization recognize marital rape aa a violation of human right. ")[xx]. International law accords Convention on the Elimination of All Forms of Discrimination Against Women" (CEDAW) require countries to take "all relevant actions" to eliminate "all forms of discrimination against women". CEDAW mandates all states to take required actions to abolish gender-based discrimination.

Conclusion
In this research paper, we talked about marital rape in India what are the laws surrounding marital rape in India, we also looked at how marital rape violates the fundamental right of the person and how does socio-cultural factors play a role in marital rape scenario in India and then we discussed what are the arguments regarding criminalizing marital rape in India and then finally we looked into international view point marital rape.

In conclusion, the need for criminalizing marital rape is essential in India for a variety of reasons. Criminalizing marital rape and recognizing non-consensual rape in marriage reinforces the fundamental principle of individual autonomy and bodily integrity in the institution of marriage. Criminalizing marital rape in India is also important as to align India's law with international standards and conventions like ICCPR, ICESCR, CEDAW, and UDHR, which are aimed at eliminating and preventing all forms of violence against women.

By criminalizing marital rape, India also reaffirms Indi's commitment to the human rights principle. Criminalizing Marital rape would help the victims of marital rape get justice, and criminalizing it also encourages them to report such incidents. Criminalizing marital rape would also bring a huge change in society's outlook, as criminalizing marital rape would be challenging the existing regressive societal norms, along with criminalizing proper education and awareness camps can help to change the outlook of society. Also, criminalizing marital rape is just not a legal necessity. It is a moral imperative, too; criminalizing marital rape would provide a much safer environment to the people who faces such abuse in the country. By recognizing this urgency taking proper measures, India can take a significant step towards a safer and equitable society for all.

End Notes:

1. The Indian Penal Code, 1860, Section 375
2. Makkar, Sarthak. (2019). Marital rape: a non-criminalized crime in India.
3. The Protection of Women from Domestic Violence Act, 2005, Section 3 Explanation 1 (ii)
4. The Indian Penal Code, 1860, Section 376B
5. Id.
6. The Constitution of India, Article 14
7. The Constitution of India, Article 21
8. Law Commission of India, Review of Rape Laws, Report No. 172 (March 2000)
9. JUSTICE J.S. VERMA COMMITTEE, Report of Committee on Amendments to Criminal Law
10. Makkar, S. (2019). Marital rape: A non-criminalized crime in India. Harvard Human Rights Journal
11. Hrishikesh Sahoo v. State of Karnataka, 2022 SCC OnLine Kar 371
12. Id.
13. Universal Declaration of Human Rights (UDHR), 10 December 1948
14. Violence against Women (World Health Organization)
15. Section 498A of Indian Penal Code, 1860
16. Prohibited Employment Policies/Practices (US EEOC)
17. Hale, Matthew, History of the Pleas of the Crown, p. 629. (1736, London Professional Books, 1972)
18. Dr. Bhavish Gupta, Dr. Meenu Gupta, Marital Rape: - Current Legal Framework in India and the Need for Change(Galgotias Journal of Legal Studies)
19. CHARULATA YEWALE, A STUDY OF MARITAL RAPE IN INDIA WITH A COMPARISON OF THE UK, USA AND CANADA
20. Universal Declaration of Human Rights (UDHR), 10 December 1948

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