I say nothing, not one word, from beginning to end, and neither does he. If it were lawful for a woman to hate her husband, I would hate him as a rapist. -Philippa Gregory (The Red Queen)

Marriage is considered to be a holy bond between a husband and wife. However, marriage in India automatically implies that both man and woman have consented to sexual intercourse. It becomes an implied consent. However, marriage is not an authorization to rape. The express consent of both the spouses (husband and wife) to have sexual intercourse helps maintain the dignity and respect among spouses. It is the man’s duty to give respect to his wife and maintain her dignity.

Marital Rape has not been recognised in Indian Laws since the main object marriage is to procreate and take the family forward and it is considered the duty of the wife to fulfil the needs of the husband as and when he desires. Though the Indian laws consider domestic violence against women as an offence but it is mainly restricted to physical harm and torture or mental torture as cruelty and not the sexual abuse or sexual harassment of wife.

The word Rape defined in Indian Penal Code, 1860 excludes Marital Rape because in the era when the Indian Penal Code was drafted, the women were not considered as a separate legal entity but as property of her husband.

The Second Exception to Section 375 of Indian Penal Code, 1860 states that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape. This exception to Section 375 of Indian Penal Code, 1860 is clearly violative of Article 14 of the Constitution of India which guarantees fundamental right of equality before law and equal protection of laws to every citizen of India since the Second Exception to Section 375 creates classification among married and unmarried women and denies equal protection to married women against her husband.

Further the Second Exception contradicts Article 21 of the Constitution of India i.e. Right to life with human dignity. The Exception contradicts with right to privacy, right to bodily self-determination and the right to good health, all of which have been recognized as a fundamental part of the right to life and personal liberty by the Constitutional Courts in various judgments.

Many countries like the United States, the United Kingdom, Australia, Belgium, Canada, Sri Lanka, etc. have recognised Marital Rape as a crime which indicates that the marital rape is considered as violation of human rights. However, India has yet to recognise the same. There is still an ongoing debate to criminalise marital rape.

However, National Commission of Women has endorsed a new bill that seeks to make substantial changes to Indian Penal Code, 1860, The Evidence Act, 1872 and the Code of Criminal Procedure, 1973 with respect to sexual harassment against women and children. In this bill, there is a reference to marital rape suggesting that it should be recognised as a crime under the provisions of law.

Law and Society are dynamic and change is an integral part of the law and society. From time immemorial, we have seen various practices being abolished from India like the practice of Sati, abolition of child marriage, abolition of Triple Talaq and made them punishable under the provisions of law and the same way, its high time that marital rape is also criminalized. The biggest battle in our society is to fight patriarchy and the institution of marriage.

The family members' consent to marriage on a girl’s behalf where marriage automatically means consent to sexual relations with her husband without express consent of the woman. When a woman gets married she does not relinquish her rights as an individual, nor does she become a property of her husband.

The basic difference between rape and consensual sex is whether the woman has consented to the act itself or not. When a man initiates sexual relations with a woman, regardless of the relationship they share, the absence of consent from the woman should be given due weightage and the act must be perceived as an offence since it is no different being raped by a stranger.

The views of the author are personal.

Written By: Mansi Batra, Advocate - Partner at Magnum Lex, Advocates & Consultants