Marital Rape under Indian Law

By - Sanjiv Panigrahi, Advocate, Supreme Court of India

In view of the recommendation of Verma Committee on the marital rape issue, a serious debate is required to be deliberated upon and it should be left to the wisdom of our legislature to take the call. As we are aware, the wife’s role in India has traditionally been understood as submissive, docile and that of a homemaker. Sex has been treated as obligatory in a marriage and also taboo. Our women folk being fed by the bitter medicine of being “good wives” quietly serve and not wash dirty linen in public.  

On the other side of the picture, estimates confirm that in every 6 hours; a young married woman is burnt or beaten to death, or driven to suicide from emotional abuse by her husband. The UN Population Fund states that more than 2/3rds of married women in India, aged between 15 and 49 have been beaten, raped or forced to provide sex.

The word rape has been derived from the generic term “Raptus” meaning theft of both property and person. It was synonymous with abduction and a woman’s abduction or sexual molestation, was merely the theft of a woman against the consent of her guardian or those with legal power over her. It is the most intimate of all other crimes. Rape in any form is an act of utter humiliation, degradation and violation rather than an outdated concept of penile/vaginal penetration. Restricting an understanding of rape reaffirms the view that rapists treat rape as sex and not violence and hence, condone such behavior. Article 2 of the Declaration of the Elimination of Violence against Women includes marital rape explicitly in the definition of violence against women.  

Over the last few centuries, a lot of scholarly attention has been given to the ticklish and contentious concept of “marital rape[1]”‘. This has occurred because throughout the history of most societies, it has been acceptable for men to force their wives to have sex against their will. Marital rape occurs in all types of marriages regardless of age, social class, race or ethnicity. Despite the fact marital rape has not been criminalized for long in many countries of the world. It is clearly a serious form of violence against women and worthy of public attention. The research to date indicates that women who are raped by their husbands are likely to experience multiple assaults and often suffer severe long-term physical and emotional consequences. Marital rape may be even more traumatic than rape by a stranger because a wife lives with her assailant and she may live in constant terror of another assault whether she is awake or asleep. The marital rape exemption can be traced to statements by Sir Mathew Hale, Chief Justice in England, during the 1600s. He wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.” Not surprisingly, thus, married women were never the subject of rape laws. Laws bestowed an absolute immunity on the husband in respect of his wife, solely on the basis of the marital relation.

The revolution started with women activists in America raising their voices in the 1970s for elimination of marital rape exemption clause and extension of guarantee of equal protection to women. In the present day, studies indicate that between 10 and 14% of married women are raped by their husbands. Sexual assault by one’s spouse accounts for approximately 25% of rapes committed. Criminal charges of sexual assault may be triggered by other acts, which may include genital contact with the mouth or anus or the insertion of objects into the vagina or the anus, all without the consent of the victim. It is a conscious process of intimidation and assertion of the superiority of men over women.

 Marital rape is not an offence in India. Despite amendments, law commissions and new legislations, one of the most humiliating and debilitating acts is not an offence in India. Section 375 of the  Indian Penal Code (IPC), has echoing very archaic sentiments, mentioned as its exception clause- “Sexual intercourse by  man with his own wife, the wife not being under 15 years of age, is not rape.” Section 376 of IPC provides punishment for rape. According to the section, the rapist should be punished with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine unless the woman raped is his own wife, and is not under 12 years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to 2 years with fine or with both. This section in dealing with sexual assault, in a very narrow purview lays down that, an offence of rape within marital bonds stands only if the wife be less than 12 years of age, if she be between 12 to 16 years, an offence is committed, however, less serious, attracting milder punishment. Once, the age crosses 16, there is no legal protection accorded to the wife, in direct contravention of human rights regulations. How can the same law provide for the legal age of consent for marriage to be 18 while protecting form sexual abuse, only those up to the age of 16?

On the question of marriage being a license to rape, there appears to be no answer, because the judiciary and the legislature have silent being a contentious issue. The 172nd Law Commission report had made the following recommendations for substantial change in the law with regard to rape.

1. ‘Rape’ should be replaced by the term ‘sexual assault’.
2. ‘Sexual intercourse as contained in section 375 of IPC should include all forms of penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal.
3. In the light of Sakshi v. Union of India and Others [2004 (5) SCC 518], ‘sexual assault on any part of the body should be construed as rape.
4. Rape laws should be made gender neutral as custodial rape of young boys has been neglected by law.
5. A new offence, namely section 376E with the title ‘unlawful sexual conduct’ should be created.
6. Section 509 of the IPC was also sought to be amended, providing higher punishment where the offence set out in the said section is committed with sexual intent.
7. Marital rape: explanation (2) of section 375 of IPC should be deleted. Forced sexual intercourse by a husband with his wife should be treated equally as an offence just as any physical violence by a husband against the wife is treated as an offence. On the same reasoning, section 376 A was to be deleted.

Marital Rape refers to unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent.