Marriages in India are regarded as a sacred union, but in this union, consent is often taken for granted. In India, being married means that both the partners have consented to sexual intercourse. Instead of being recognised as a crime, marital rape is considered legitimate in India, where it is an exception to the act of rape as mentioned in section 375 of the Indian Penal Code, stating, Sexual Intercourse or acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

This research paper intends to analyse and examine the legitimacy of marital rape in India. Further, this paper will study the existing remedies that a victim of marital rape can seek. Rape is an illegitimate act, whether the perpetrator is one’s own husband or not, should not matter. In such cases, it is the consent of the woman that plays an important role. Such a crime should not be left unacknowledged and should not be deemed legitimate by an entire country’s population.

Introduction
Marital Rape is the act of sexual intercourse with one’s spouse without the spouse’s consent. In a country like India, where a man and a woman once married are considered to be entangled into a sacred union for seven births, consent of the woman remains unacknowledged and forgotten. Marital rape is seen as an exception to the law that criminalises rape, thus, legitimising it.

For centuries, women have been suppressed. Until the 1970’s, most states regarded marriage as a contract whereby a husband could engage in sexual intercourse with his wife whenever he desired. However, since the feminist revolution, women’s rights groups initiated anti-rape movements, demanding that they may be given sexual autonomy, i.e, the right to consent, over their own bodies, including within marital bonds.

It is unfortunate to know that even after so many years these attempts have proved to be futile, marital rape remains unacknowledged as a crime in 36 countries[1] and India is one of those countries. The age-old distinction between the sexes and the discrimination faced by women is more pronounced when there are crimes against women that are unrecognised and ignored by society.

Article 14 of the Constitution[2] states that, the State shall not deny to any person equality before the law or equal protection of laws within the territory of India, it guarantees the prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. Legitimising and not criminalising marital rape is a violation of this article.

In matters related to marriage, society has always played a major role. The primary reason behind not criminalising marital rape would be the society. In our society, it is assumed that marriage would be a licence to rape and consent is taken for granted. The society can be changed only if the law recognises this offence. The aim of this paper is to study the law and society side by side, as society cannot function without law.

Marital rape seen as an exception to rape

Section 375 of the Indian Penal Code (IPC) criminalises the offense of rape. The definition contained in this section is detailed and expansive in nature. The most important definition contained in this section would be that of ‘consent’. The section clearly highlights the importance of consent while engaging in any sexual act. However, this section excludes marital rape, stating it as an exception. Exception 2, which considers forced sex in a marriage as a crime, only when the wife is below the age of fifteen. Thus, the value of consent diminishes once the woman is married. Here, marriage is seen as a licence to rape.

The rape laws in our country were not always as expansive as the current laws are. It has taken a long time to get where we are today. And yet, India fails to recognise marital rape as a crime.

A Brief History of the Rape Law

On 16th December 2012, a 23-year-old paramedic student, referred to as ‘Nirbhaya’ was brutally gang raped and assaulted by six men on a moving bus[3]. This landmark case changed the face of the rape laws in India. It was obvious that a change was required. Prior to this, the rape laws in India were not as inclusive. Victims of rape were harassed as the burden of proof lies on the victim.

The Indian Penal Code (IPC) defined rape as sexual intercourse by a man with a woman without her consent. Insertion of objects into the victim’s vagina was excluded from the purview of rape. And so, the brutal insertion of an iron rod in the Nirbhaya case did not amount to rape.

On 3rd February 2013, the Criminal Law (Amendment) Ordinance was promulgated by President Pranab Mukherjee, this provided for amendment of the Indian Penal Code, Evidence Act, and Code of Criminal Procedure. The ordinance provided for death penalty in cases of rape. The amendments were made to ensure that women are not re-victimised when they approach the legal system after being sexually assaulted. Section 375 of the Indian Penal Code expanded to include any and all forms of sexual assault. However, even after all this, marital rape was excluded from the definition.

Amendment (2013)

After the 2013 Amendment, section 375 reads as follows:

375. A man is said to commit rape if he:

1. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her do so with him or any other person; or
2. inserts, to any extent, any object or a part of the body, not being his penis, into the vagina, the urethra or anus of a woman or makes her do so with him or any other person; or
3. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any ~ of the body of such woman or makes her to do so with him or any other person; or
4. applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person,
   under the circumstances falling under any of the following seven descriptions:
   
   1. Against her will
   2. Without her consent.
   3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
   4. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man with whom she is or believes herself to be lawfully married.
   5. With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature of consequences of that to which she gives consent
   6. With or without her consent, when she is under eighteen years of age.
   7. When she is unable to communicate consent.

Explanation: For the purposes of this section, vagina shall also include labia majora.

Explanation 2: Consent means unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1: A medical procedure or intervention shall not constitute rape.

Exception 2: Sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape.[4]

It is difficult to know the reason behind the exclusion of marital rape from the section. Perhaps, the ancient Indian values that uphold marriage at such a high place, fail to make place for married women and takes their consent for granted. It is also difficult to know why the provision was made in such a way as to make marital rape an exception for those above fifteen years of age when the legal age for any woman to marry is at eighteen.

In the eyes of Indian law, marital rape is not a crime, however, there is a provision made for a specific kind of marital rape. This provision applies for only those marriages where the husband and wife are living separately or are under judicial separation.

Section 375B of the Indian Penal Code states:

Sexual intercourse by husband upon his wife during separation:

Whoever has sexual intercourse with his 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, shall also be liable to fine.

Explanation: sexual intercourse shall mean all the acts mentioned in clauses (a) to (d) of section 375.[5]

In section 375B, marital rape has been criminalised as the husband and wife are living separately or are under judicial separation. However, in section 375 this becomes an exception since they are living under the same roof. This goes to prove that living together raises an automatic presumption that consent is implied. Thus, victims of marital rape are left helpless as there are no separate provisions to help them. In such cases, victims have to take recourse to the Protection of Women from Domestic Violence Act 2005 (PWDVA)

Marital rape and its legitimacy: A right of the husband or an offence?
For years and years, marital rape has been hidden behind the iron curtain of marriage. Women have been treated as a commodity whereby consent in sexual intercourse after marriage has been neglected.

In our society marriage is regarded as a sacred union. Traditionally, husbands are supposed to earn the bread while their wives stay at home all day, cooking and looking after the household. Perhaps, that is why some men think they are entitled? A woman who is a victim of marital rape must face all the consequences that any other victim faces; mental and physical. Given all these reasons, it is important that marital rape is recognised as a crime by law and also by society.

Article 21 of the Constitution incorporates the right to live with human dignity and is one of the most fundamental and important rights that are and must be given to all citizens of India, regardless of caste, sex, creed or religion. Legitimising marital rape by making it an exception to the section that criminalises rape is a violation of one of the most basic rights given to citizens of India.

In Bodhisattwa Gautam v. Subhra Chakraborty[6], the court provided certain guidelines for awarding compensation to the victim while claiming that rape is a crime against the basic human right and violation of the right to live a dignified life enshrined in Article 21 of the Constitution.

In another landmark case of The Chairman, Railway Board v. Chandrima Das[7], the court held that rape is not only a crime against an individual woman, it is a crime against the entire society. It was one again held that rape is a violation of the right to live as mentioned in Article 21 of the Constitution. In these cases, rape has been considered a crime against society, but what happens when it is hidden behind a marriage, why is it then legitimised by society as well as by the law?[8]

The above questions can only be answered once there is a step taken towards criminalising this offense, until then, more and more women will be victims of this crime and marital rape will be considered a right, something that men are entitled to in a marriage.

Implied Consent in Marital Rape: Can consent be presumed?

So far, we have already established that in the eyes of Indian Law, marital rape seems to not exist. The most important factor that comes into play while talking about rape is, ‘consent’. However, this factor vanishes when one is hidden behind the iron curtain of marriage. It may also be said that consent in sexual intercourse is presumed after marriage, giving rise to the concept of ‘implied consent’.

In 2012, after the Nirbhaya case, a committee under Justice J.S Verma took a step towards the criminalisation of marital rape. The J.S Verma Committee published the Report of the Committee on Amendments to Criminal Law [9]. The committee said that marriage between a man and a woman is not a valid defence against crimes like rape.

The committee in its report said that: The law ought to specify that marital or other relationship between the perpetrator and victim is not a valid defence against the crimes of rape or sexual violation. According to the report:
the relationship between the accused and the complainant is not relevant to the enquiry into whether the complainant consented to the sexual activity and the fact that the accused and the victim are married may not be regarded as a mitigating factor justifying lower sentences for rape.

The report also stated that the exception of marital rape from the law stems from the ancient notion of marriage that regarded wives as a mere ‘property’ of their husbands. Including all this, the Verma Committee also pointed out that a study conducted in 2010 suggests that 18.8 per cent of women are raped by their partners on one or more occasions. Further, the report said:
Changes in law therefore need to be accompanied by widespread measures raining awareness of women’s rights to autonomy and physical integrity, regardless of marriage or other intimate relationship[10]

Even after publishing this report and many other pleas made, the law goes on to ignore these reports, perhaps for the sake of safeguarding the unbreakable faith that people have in marriages. For this reason, most of the cases are not even reported as people are plagued by the prevalent belief that marital rape is not a crime or not as serious as any other kind of sexual assault.

Hence, the answer to the question proposed in this chapter is loud and clear. That is, consent in marital rape cannot be presumed. The law must specify that marriage or any other relationship shared between the victim and the perpetrator is not a defence that can be used in cases related to sexual assault.

Existing remedies in Indian law for marital rape victims

To get an accurate figure of how many women are victims of marital rape is tough, as cases related to marital rape are severely under-reported and the extent of the crime is never revealed. However, according to the data collected by the National Health and Family Survey (NFHS), 2018, it was revealed that 5.4% of married women are victims of marital rape.

It was reported that sexual violence gets worse if the husband is an alcoholic, 66% of married women experienced physical or sexual violence when their husbands got home drunk.

Among all the states, Manipur fared the worst in terms of women who have been victims of physical, sexual or emotional violence. 55% of Manipuri women were reported to have been victims of such crimes. Sikkim had the lowest number of victims at 3.5%. Thus, marital rape exists in data, but not in society or law.[11]

Women who are victims of marital rape and are willing to take action against it must take help of other remedies that exist in Indian Law.

Criminal Law
Section 498A under the IPC, protects women who are subjected to cruelty in a marriage, may also act as a remedy for women who are victims of marital rape. Section 498A states that, Whoever, being the husband or the relative of the husband of a woman, subjects such women to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to a fine.[12] However, it must be noted that cruelty is not the same as rape in a marriage.

Women who want to report cases of marital rape have no other option but to seek help under this section. The problem that arises is that, section 498A is inadequate and cannot deal with cases involving rape inside a marriage. ‘Cruelty’ defined in the section may mean any form of mental, physical or emotional harm inflicted on a woman. However, it would not be wrong to argue that the nature of rape is much more serious and can inflict and leave behind a much greater kind of harm than that covered in section 498A. Thus, criminalising marital rape will help the women who are victims of it and would make their fight for justice better.

Civil Law

Marital rape is not a ground for divorce in the Hindu Marriage Act 1955, the Muslim Personal Law 1937 or the Special Marriage Act. It cannot be used as a ground for divorce and cruelty against one’s husband. Victims only have recourse to civil remedies provided under the Protection of Women from Domestic Violence Act, 2005 (PWDVA).

Can a change in reforms bring about a change in mentality?

So far, we have established that criminalising marital rape is essential and is something that must be accomplished to safeguard the women in our country and protect their rights as equal citizens of India. However, it is also a fact that marital rape has not been accepted as a crime in the Indian society. Most of the people are not even aware of it being a crime as they perceive it as a husband’s right to force his wife into having sexual intercourse with him.

It has been argued that criminalising marital rape might destabilise the institution of marriage and contribute to the falling apart of marriage as an institution. Perhaps, that is why the Indian Law refuses to recognise marital rape as a crime. The exact reason behind it cannot be known. However, can a change in reforms bring about a change in mentality? If a change in law fails to make people understand the extent of such a crime, then cases of marital rape will go on being unreported and legitimised by society.

Once the law is changed and marital rape is no more an exception to the law that criminalises rape, women will have a voice and they will have a choice to report such a crime, which in turn will make them empowered and might lead to the long lost equality even inside a marriage. When it comes to mentality, one must change their mentality in order to take a step towards progress. However, all this can only be done once there is a step taken towards a change.

The relationship of marriage cannot act as a defence when it comes to rape and the law must specify and recognise it. If marital rape is not criminalised, the harm caused to women as a result of it is sure to outweigh the harm caused to society by destabilising the institution of marriage.

Conclusion
For years women have fought. They have fought against discrimination and for equality, to be recognised as equal citizens. Men and women both have contributed to feminist movements and we have indeed come a long way. However, a compulsory change in the law must be made for another step towards a society where men and women are treated equally. Not criminalising marital rape contributes to inequality and is thus, unconstitutional.

In the light of equality, the law must amend section 375 and mention that a relationship of marriage or any other relationship is not a valid defense for rape. There should also be a separate section that criminalises the offense of marital rape so that victims do not have to take recourse under the Protection of Women from Domestic Violence Act (PWDVA).

Marital rape is an exception to rape for women who are over fifteen years of age, when the legal age for women to get married is at eighteen. There are no valid reasons that support the exception clause under section 375 and no valid reasons why marital rape is considered legitimate. Thus, a change in reforms will surely spread awareness which in turn will bring about a much-needed change in mentality.

References:

• Aishwarya Mishra, ‘Law on Marital Rape- A much needed reform in our legal system’ (Mondaq, 13 April 2018
• Anoo Bhuyan, Government Denies Marital Rape Occurs, National Survey Shows 5.4% of Married Women Are Victims, (The Wire, January 12 2018),
• G.V Akshaya and M. Kannappan, A study on Marital Rape in the Indian Legal Scenario, (2018);
• India Today, ‘Marital Rape in India: 36 countries where marital rape is not a crime’ (India Today Web Desk, 12 March 2016) www.indiatoday.in
• Justice J.S Verma Committee, Report of Committee on Amendments to Criminal Law, January 23, 2013
• Ratanlal and Dhirajlal, The Indian Penal Code (36th ed, 2019)
• Raveena Rao Kallakuru & Pradyumna Soni, Criminalisation of marital rape in India: Understanding its constitutional, cultural and legal impact, NUJS Law Review 1 (January-March, 2018
• Pallavi Prasad, Why it is still legal for Indian Men to Rape their wives, January (2020)
• Sarthak Makkar, Marital Rape: A Non-criminalised Crime in India, Harvard Human Rights Journal (January 1, 2019)
• Sumati Dhingra, Criminalisation of Marital Rape in India, (2015)
• The Constitution Of India
• The Hindu, ‘Marriage is not a valid defence against rape, says committee’, (The Hindu, 28 January 2013)

End-Notes:

1. India Today, ‘Marital Rape in India: 36 countries where marital rape is not a crime’ (India Today Web Desk, 12 March 2016
2. The Constitution of India, 1949
3. Mukesh v State (NCT of Delhi), (2017) 2 SCC (Cri) 673
4. The Indian Penal Code, 1860, Section 375
5. The Indian Penal Code, 1860, section 375B
6. Bodhisattwa Gautam v. Subhra Chakraborty, AIR 1996, SC 922
7. The Chairman, Railway Board v. Chandrima Das, AIR 2000, SC 0046
8. Aishwarya Mishra, ‘Law on Marital Rape- A much needed reform in our legal system’ (Mondaq, 13 April 2018)
9. Justice J.S Verma Committee, Report of Committee on Amendments to Criminal Law, January 23, 2013
10. The Hindu, ‘Marriage is not a valid defence against rape, says committee’, (The Hindu, 28 January 2013)
11. Anoo Bhuyan, Government Denies Marital Rape Occurs, National Survey Shows 5.4% of Married Women Are Victims, (The Wire, January 12 2018),
12. The Indian Penal Code, 1860, Section 498A
    
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