Rape is defined as non-consensual intercourse with a woman in section 375 of the Indian Penal Code in our Indian constitution. It involves all form of sexual assault done to a women but it has two exceptions.

Exception1:
A medical procedure or an intervention shall not constitute a rape.

Exception2:
Sexual intercourse or sexual acts by a man with his wife, the wife not being under the age of 15 years is not rape.

The main issue is with the second exception of section 375 which can be clearly stated as marital rape. As per the current law, a wife is presumed to deliver perpetual consent to have sex with her husband after entering into marital relations. The concept of marital rape in India is the epitome of what we call an implied consent.

This marital rape is recognized as a criminal offence in almost every country but India is still one of the thirty six countries who have not criminalized marital rape. As per National Crime Records Bureau [NCRB] report 2020 around 35,331 cases were reported against women and majority of crime against women were registered under 'cruelty by husband or his relatives' which is around 30.2%. an analysis of National Family Health Survey [NFHS] 2015-16 data indicates that an estimated 99.1% of sexual violence cases go unreported and that the average Indian women is 17 times more likely to face sexual violence from her husband than from others.

Marital rape also violates article 14 of the Indian Constitution which ensures that the state shall not deny to any person equality before the law within the territory of India. Although Indian constitution guarantees equality to all, Indian criminal law discriminates between unmarried and married women who are raped by their own husband. The exception creates two classes of women based on their marital status and immunizes men for raping their wives.

Marital rape also violates article 21 of our Indian constitution which includes the right to health, privacy, dignity, save living conditions and save environment among others and therefore forced sexual intercourse is a violation of the fundamental right under article 21.

In the recent cases Supreme Court has explicitly recognized in article 21 a right to make choices in a intimate relations. In justice J.S.Puttuswamy [retd.] v. Union of India, the Supreme Court recognized the right to privacy as the fundamental right of all citizens and held that right to privacy includes:
Decisional privacy reflected by an ability to make intimate decisions primarily consisting of one's sexual or procreative nature and decisions in respect of intimate relations.

This ruling does not distinguish between right of married and unmarried women and there is no contrary judgment stating that stating that the right to privacy is lost by marital associations. Thus, the Supreme Court had recognized right to abstain from sexual activities for all women as fundamental right given under article 21 of our Indian Constitution.

This exception also defeats the spirit of article 375 of IPC which is made to protect women and to punish who engage in the inhumane activity of rape. However, exempting women from punishment is entirely contradictory as the consequences of rape are same whether a woman is married or unmarried. Moreover conditions of married women are even worse as most of the women financially depended on their husband and it's very difficult to escape such abusive conditions.

In Dilip Pandey & Ors. V. state of Chhattisgarh, the Chhattisgarh high court discharged a man of the offense of marital rape after observing that sexual intercourse or any sexual acts by a husband with his legally wedded wife is not rape even if it was by force or against her and this judgment was found atrocious by many of us.

The united Nations Declaration on the elimination of violence against women as any act of gender based violence that results in, or is likely to result in, sexual or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty whether occurring in private or public life.

In 2013 the UN Committee on Elimination of Discrimination against Women [CEDAW] recommended that Indian government should criminalize marital rape. The JS Verma committee which was formed after nationwide protest over December 16 2012 gang rape case also recommended the same that marital rape should be criminalized as by removing this exception of law as women will be safer from abusive spouses, can receive the help needed to recover from marital rape and can save themselves from domestic violence and sexual abuse but standing committee of parliament replied that this will develop anarchy and Indian family system will come in stress.

There are some arguments which are against the marital law such as there is already a remedy given as an offence under section 498a of IPC which talks about cruelty against women and domestic violence act, also it would be very challenging to set up a criteria for marital rape and if laws are made to criminalize marital rape there would be high chances of misuse and harassment against men.

Indian laws should now recognize husband and wives as separate and independent legal identities and it is a high time that the legislature should take proper steps and bring marital rape within the preview of rape laws. Indian jurisprudence should understand the atrocious nature and eliminates the second exception of article 375 that is sexual intercourse or sexual acts by a man with his wife, the wife not being under the age of 15 years is not rape.

Written By: Payal Bhagchandani, Semester-1, BA.LLB [Hons.] - Jagran Lakecity University, Bhopal

Also Read:

1. Marital Rape
2. Marital Rape versus Conjugal Right
3. Does Section 375 of IPC Include Marital Rape
4. Marital Rape: Is marriage equal to Consent?
5. Make Marital Rape An Offence: Delhi Court
6. Marital Rape And Its Current Legal Status
7. Marital Rape Situational Analysis
8. Why Marital Rape Must Be Criminalised
9. Marital Rape - A Justified Crime In India
10. Rape an Offence, Marital Rape an Exception: Marital Rape in India and Right to Privacy