In today’s society, marital rape is a delicate and much-debated issue. It is always unnoticed by regular people since intimacy between husband and wife is considered a private subject in society.Marital rape is the act of having sexual relations with one’s spouse without her permission. India is one of the few nations in the world where non-consensual intercourse inside a marriage is not considered rape. Although rape is considered a heinous crime in India, Martial Rape was never a crime. As per law “Sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape”. Exception 2 of Section 375 protects husbands from prosecution by wives on charges of rape.

Why is marital rape not a crime although domestic abuse is a punishable offense under Indian law? Does marrying a man imply that she has given her consent to have sexual relations with him?

Marriage has traditionally been valued in Indian society, and a woman’s fertility and ability to bear children are seen as the primary purpose of marriage. The family frequently prevents women from expressing their dissatisfaction with their husbands. The assumption that once a woman marries, she gives her husband never-ending, continuous sexual permission is strongly ingrained in our culture. It appears that only the physical bruises complicate matters and provide cause for concern. Most of the time, women file a case under Domestic Violence, even if the circumstances of marital rape are present. It is observed that Domestic violence punishments are substantially less severe than rape sentences. Although domestic violence involves both physical and emotional abuse, it has traditionally focused on physical suffering and has ignored the issue of sexual consent. The exception restricts a woman’s right to sexual expression.

While the Justice Verma Committee, established following the Nirbhaya rape case, proposed criminalizing marital rape, the suggestion was rejected by a legislative standing committee led by Venkaiah Naidu. The committee report states, “If marital rape is made illegal, the entire family structure would be put under severe stress, and the committee may be doing further injustice.” Criminalizing marital rape would be “excessive interference with the marital relationship,” according to a law commission study from 2000. A woman is not permitted to choose whether or not to have sex with her spouse. It not only denies a married woman’s freedom to say no, but it also denies her the chance to express a joyous yes. The consent and desire of a woman are rendered null and void. and it is always necessary to talk about the fundamental rights that are guaranteed by our Constitution. Marital rape violates Article 14 of the Indian constitution’s equality guarantee. The Exception divides women into two categories based on marital status and protects men from crimes committed against their spouses.

As a result, the Exception allows married women to be penalized purely based on their marital status while shielding unmarried women from the same offenses. The rights guaranteed by Article 21 include, among other things, the rights to health, privacy, dignity, safe living conditions, and a safe environment, according to the Supreme Court’s innovative interpretation.

The right to privacy includes “decisional privacy, which is defined as the ability to make personal decisions primarily about one’s sexual or procreative nature, as well as decisions regarding intimate contacts.” The right of all women, regardless of marital status, to refrain from sexual activity has been recognized as a basic right guaranteed by Article 21 of the Constitution in the majority of Supreme Court rulings. As a result, forced sexual intercourse is a breach of article 21’s basic right. In what is known as Hale’s doctrine, one of the first instances of the exception of marital rape arises. In an influential criminal law book published in 1736, Matthew Hale, chief justice of the Court of King’s Bench in England in the 1670s, wrote that “The husband cannot be guilty of raping his lawful wife, for by their joint marriage consent and contract: the wife has handed over herself in this sort unto her husband, which she cannot withdraw.”

Because of notions like these, marital rape received an exception in the definition of rape while the Indian Penal Code was being formed in British India, and such exceptions are a violation of rights that are being followed today. It is vital to retain women’s dignity and safeguard their rights; criminalizing the idea of marital rape will restore those rights and will be seen as rape rather than domestic violence and will be punished appropriately. Codifying a law by adding the word consent can change how society views the choice between rights and abuse. Codifying the law signifies how consent is important in a relationship and that going against a woman’s will results in severe punishments; the harsher the punishment, the more important it is not to break the law.

Author’s Name: Hashita Kurupath (Narsee Monjee Institute of Management Studies, Hyderabad)

 “Right to abstain” from sexual intercourse is a long-recognized principle of Indian Constitutional jurisprudence. _Govind v. State of M.P_, AIR (1975) SC 1378 (India); _Kharak Singh v. State of U.P_, (1963) AIR SC 1295 (India).

Sign Up to Our Newsletter

Be the first to know the latest updates

Whoops, you're not connected to Mailchimp. You need to enter a valid Mailchimp API key.