Indian Constitution has enshrined the basic right to equality and the right
to life respectively, for every citizen of India. This means that every
individual who is a citizen of our country has the right to live a life of
equality and dignity without discrimination, abuse, or any form of violation of
these rights. However, due to the largely patriarchal confines of the Indian
marriage laws, the basic idea behind these fundamental rights is exploited
blatantly and on a large scale, especially when it comes to gender-based crimes
or minority crimes.
The Indian Penal Code (IPC) still provides that a husband
is exempted from being charged for the act of rape on his wife, subject to the
age of the wife. This is a clear example of the current norm being archaic and
heavily biased against women in India wherein the ultimate supremacy and legal
recognition is provided to the husband over the rights of the wife.
second exemption of section 375 of the IPC, it has been given that Sexual
intercourse by a man with his wife, the wife not being under fifteen years of
age, is not rape. Furthermore, the caveat for age was also added into the IPC
only due to the several instances of child brides dying due to premature
intercourse with their husbands.
The IPC, 1860 on Marital Rape
Amongst the most horrific cases of marital rape was the case of
known as Queen-Empress vs. Hari Mohan Maiti
) in 1881. This particular case is
required to be specially mentioned as it attracted a great deal of attention
amongst legislators and society as well. The facts were that Phulmoni Devi, an
eleven-year-old child bride, died due to excessive bleeding when her husband,
Hari Mohan, who was in his mid-thirties, tried to consummate their marriage
despite his wife being eleven years of age.
Even though the autopsy report indicated a ruptured vagina as the cause of
death, the husband was subsequently acquitted of the charge of rape because the
laws on rape exempted marital rape from the ambit of the penal law completely.
The prevalent rape laws permitted a man to have sexual intercourse with his
wife, irrespective of her consent, as long as she had attained the age of ten,
at the time.
Nevertheless, Hari Mohan was charged under Sections 304, 304A, 325,
and 338 of the IPC subsequently. In this specific case, it was held by the Court
that a man did not have the right to enjoy the person as his wife without any
regard for the question of her safety and health.
The case of Phulmoni Dasi triggered concerns about the age of consent for child
brides in particular. The colonial government, vide amendment to the Age of
Consent Act, 1861 raised the age of consent from ten to twelve years in both
marital and extra-marital cases, intending to protect female children from such
immature cohabitation and prostitution in the future.
However, when the
Amendment Act, 1925 was enacted, a distinction was made between the age of
consent for extra-marital and for marital rape i.e. fourteen and thirteen years,
respectively even though the effect of this change was diluted since the
punishment for the husband was kept at a maximum of two years only.
Furthermore, the said exception for married women aged between fifteen and
eighteen continued until 2018 when the Supreme Court (SC) of India in a landmark
judgment held that a man is committing rape if he engages in any form of sexual
intercourse with his wife if she is aged between fifteen and eighteen. This was
the first time any legal recognition was given to the fact that sexual assault
on a girl below the age of eighteen by a man, even if he is her husband, amounts
This, however, does not provide for any protection of any woman above the age of
18 who may also be subjected to marital rape by her husband and such cases are
largely prevalent all over the country and go unnoticed or dismissed since no
law provides for any form of penalisation or punishment for marital rape over a
woman if she is above the age of 18.
Thus, if the woman is older than eighteen
and married to a man who commits sexual assault, the penal provision does not
apply to mean that, there is no legal recourse for women victims of rape if the
man who commits the act is their husband. This issue has been debated and
discussed by women groups repeatedly and the National Commission for Women has
even suggested that marital sexual intercourse by a man with his wife without
consent should also be considered as sexual assault.
Moreover, this aspect of marital rape also found recognition with the Verma
Committee, which had been constituted on 23 December 2012 in the wake of the
infamous Nirbhaya case. This was a three-member committee headed by Justice J.S.
Verma, the former Chief Justice of the Supreme Court. The main function of this
committee was to recommend amendments to the criminal law in India to provide
for faster trials and enhanced punishments for criminals accused of committing
sexual assaults against women.
The Verma Committee also included within its
suggestions, the absolute and complete criminalisation of marital rape, holding
that, the right to life includes the right to a dignified life for every
individual and that marital rape violates this basic right completely and
indignifies the woman to a gross extent.
While recommending such criminalisation
of marital rape, this Committee made the following observations:
Women in India do face frequent incidents of discrimination and violence in the
household and the workplace and several special and protective pieces of
legislation have been enacted to protect a woman from such unwelcome incidents.
Further, the penal consequences have been provided for the safety of women, but
no laws explicitly prohibit a man from raping his legally wedded wife except
under the following situations:
- Any form of sexual intercourse or sexual act committed by a man with his wife,
the wife is under 15 years of age, as given under section 375 of the Indian
Penal Code, 1860.
- Any form of sexual intercourse by the husband upon his wife during a period of
separation, as provided under section 376B of the Indian Penal Code, 1860.
Thus this reflects upon the clear absence of any law for criminalising marital
rape in totality and thus reflects the state's inability to recognize the rights
of a wife who is a woman and most importantly, also a human being who deserves
to live a dignified and secure life. The Indian Constitution provides several
kinds of fundamental rights, including the right to life and the right to
privacy but it has failed to observe that the right to life also implies the
right to live a life of dignity and marital rape attacks the basic principle
behind this fundamental right completely.
Current Judgments on Marital Rape:
Recently, the Gujarat High Court in its recent judgment on Nimesh Bhai
Bharatbhai Desai vs. the State of Gujarat�
while examining the law relating to
sexual offences, observed that the husbands need to be reminded that marriage is
not a licence to forcibly rape their wives at all. A husband does not own his
wife's body because of marriage and she does not in any manner, become an object
By marrying, she does not divest herself of the human right to
exclusive autonomy over her own body and therefore, she is well within her
rights to lawfully give or withhold her consent to marital coitus at any point.
Marital rape is in existence in India, which is a highly disgraceful offence
that has scarred the trust and confidence in the institution of marriage
A large population of women has faced the brunt of the
non-criminalization of the practice and live in abject fear for their lives due
to such non-criminalization. The Gujarat High Court was of the view that the
accused must be charged for outraging the modesty of his wife and thus an
investigation in this direction must be conducted.
However, in another case under the Delhi High Court, the Court completely
dismissed the petition to criminalize marital rape, maintaining that the
drafting of the law is the function of the legislature rather than the court,
while the court is more concerned with the interpretation of the law than its
This reasoning was unfortunate, especially because of the Supreme
Court unequivocal verdict in the case of K.S. Puttuswamy vs. Union of India
wherein it provided that the privacy of the individual is an essential aspect of
dignity and that rape is a violation of a woman's right to her bodily integrity
During the onset of establishing the right to privacy as a Constitutional Right,
the Supreme Court took note of the judgments on rape which hold sexual violence
to be an unlawful violation of the right to privacy and sanctity and an offence
against a woman's dignity. Another such example is the case of Suchita
Srivastava concerning the issue of consent for the medical termination of
pregnancy (MTP). Here, the court directed the state to respect the reproductive
rights of the woman completely. These judgments demonstrate that the highest
court in the land deduced this right from a woman's right to privacy, dignity,
and bodily integrity wholly.
Conclusion and Recourse
Thus at present, the only recourse against non-consensual sex for married women
in India are civil provisions given under the Protection of Women from Domestic
Violence Act or Section 498-A of the IPC on the cruelty against a wife by the
husband or husband relatives. Several countries everywhere in the world are
adopting stringent laws against marital rape and recognizing it as a criminal
offence as well. Countries like Denmark, Sweden, Poland, Norway, and the Czech
Republic, have already criminalized marital rape, while others are still
struggling to make marital rape a criminal offence due to the intricacies
involved with such a move and the potential side effects for marital
relationships and the flipside of wrongful accusations.
Most advocates of the existing laws on marital rape state that the
criminalization of marital rape will provide women an unfair advantage which
could lead to a high number of false charges being brought against men. However,
it cannot be denied that India's existing rape law, which provides an exemption
for the husband, runs contrary to Articles 14 and 21 of the Constitution of
India entirely. Marital rape is not only discriminatory, but it also violates a
wife's right to life with dignity. No woman ever surrenders her basic
fundamental rights once she gets married. Thus any law which contravenes the
provisions highlighted under the Constitution needs to be abolished completely.