Rape within Four Walls: No More A Legitimate Exception

Author: Ayush Kumar Jain

Presidency University Bengaluru

ISSN: 2581-8465


Criminalization of Marital rape is one of the most argued and debated issues after the Ayodhya case, Section 377 & Article 370. This is not defined anywhere but it means unwanted sex with his wife by the husband. The Indian Penal Code (hereinafter referred to as IPC) has not recognized this as an offence but it is an exception of rape under Section 375. This article explores the status of women in India for thousands of years. Moreover, the objective of this article is to find out the idea behind the non- the criminalization of marital rape and at present, is there any remedy for the marital rape victim. The condition of women in society has been erratic although in the past, women have been treated like a goddess and they have a different place altogether. This article also helps in understanding the condition of marital rape in other countries as well. It is not a joke and inside the wall or outside the wall rapist will be rapist & cannot take the defence of marital relationship.

         Index Terms: Marital rape, IPC, Sexual intercourse, personal laws, the status of women

[I] Introduction

Marital rape is a heinous crime and gravest kind of sexual abuse against the women but it is still neither an offence nor punishable under code. Marital rape can be defined as unwanted sex with his wife by the husband. There is a loophole in our laws where one side makes punishable when a Man rape woman but on the other side, it is not punishable when husband rape his wife and he also enjoys criminal law immunity for raping his wife and take the defence of marital relationship.[1]

Marital rape itself is not an offence but it can be clubbed under some provisions of said Act and these sections are as follows: Section 377, Section 354, Section 354A & Section 498A of IPC. The Exemption violates Article 14 of the Constitution as it creates the classification between consent given by married women and unmarried women. Non- Criminalization of marital rape is a violation of various human rights, as well as  Article 21 of the Constitution i.e. women, have the right to live with dignity[2] and it is no doubt that if a husband forcefully sex with his wife without her consent violates her dignity. Therefore, the exception given under Section 375 is a violation of Article 21. In this article, the author also analyzes the present legal position and foreign law on marital rape. Further, this article also emphasizes the viewpoint of the judiciary on marital rape.

[II] Marital Rape: Asymmetric in Male & Female from Ages

Male and females are essentials components of Human society and both are dependent on each other[3]. There is no better or more between male and female but in our society women are discriminated against from long back and non-criminalization of marital rape is one of the discriminations against women. Before the Vedic period, women enjoy their rights, and the position of women was far better than the Present.[4]Both male and female were treated equally and also have the right to access education equal to men but that does not mean that women were not discriminated.

After Pre-Vedic-Period, the women started discriminating in the education, religious status and treated unequally. Women have the choice to choose their husband in an assembly called “Swyamvara”[5] and women have right to choose a husband with their choice but on the other side, the practices like sati, polygamy was prevalent in that era also.

There were some instances in Mahabharata which shows that the status of women in society such as the Kunti has a child before marriage and she married to king Pandu but society never puts allegation on her character and she is not going for sati after king Pandu death but Madri who was the second wife did commit sati after her husband died[6]. On the other side, there were some instances which shows that men always enjoy their right over women and Duryodhana violates her dignity in front of everyone by making Dhropadi disrobe and Dhropadi, wife of Pandavas was used by them on dice like she is the property of her husband. This shows that from long back a woman has to prove herself before everyone and treated unequally by our society.

Marital rape denotes unwanted sexual intercourse which can affect her privacy &dignity and in the ancient era, there were many instances where women have been discriminated by society and violate her dignity such as Dhropadi disrobes. Overall the status of women was not good in the ancient period.

Before independence, the mahatma Gandhi has played an important role for the liberalization of the woman and during that time many social workers started a movement for the education of women, prevention of sati system, or many practices which are against the women. After movement, Parliament enacted many laws such as the prevention of the Sati Act, laws related to the child marriage &Dowry prohibition Act.  Today our Constitution provides equal status to women and there is no discrimination between men and women and most of the fundamental rights given to women is Article 14 & 21 but still, this exemption is not declared unconstitutional. 

[III] Marital Rape: No Excuse for inexcusable

Marital rape is not an offence under the Indian penal code but it can be clubbed with the other provisions such as Section 377, Section 354 & Section 498A of the said Act. Most of the crimes against women happen within marriage lock or wedlock such as Bride burning, dowry deaths, domestic violence, marital rape, etc. are very common in the life of Indian married women.[7]

The object of Section 498A is to prevent the torture to women by her husband or his relative and Section 498A applies when it fulfills the given condition under the said section which is as follows: it applies to married women and subject to cruelty or harassment by her husband. The sexual practices or torture which the wife has alleged and not give consent would amount to mental or physical cruelty. There were many cases in which a wife has been harassed by her husband in the extent in which the wife has suffered so many injuries or badly affected mentally. There is no such provision in the Indian Penal Code which deals with marital rape but the husband can be alleged by his wife for forceful sexual intercourse as cruelty under Section 498A of Indian Penal Code.[8]

Marital rape can be made an offence under Section 377 of the Indian Penal code and this section penalize three kinds of offences i.e. sexual activities between homosexuals, certain specific sexual activities between the heterosexual person and sexual activities with animals but the Supreme Court held that consensual sex between two adults is not an offence[9] and overruled the case of Suresh Kumar Koushal & Anr. Vs. Naz Foundation & Ors.[10]

Moreover, if a husband does any carnal intercourse with his wife irrespective of her consent against the order of nature will come under the ambit of unnatural offence and it will be punishable under Section 377 of the code. There are many cases in which a husband forcefully indulges in sexual activities with his wife against the order of nature. There were many cases registered where her husband used to penetrate against the order of nature and he used to fulfil his sexual desire by forcing her in such activities.[11]This is evident of women condition in our society where man has treated women as property or goods and fulfil their perverted sexual desire by forcing or torturing her wife. There should be separate provisions which can deal with the marital rape cases.

Moreover, Assault or criminal force to woman with intent to outrage her modesty is an offence under Section 354 and The word “Any women” mentioned under this section indicates that any women include the one who is his wife also and if a husband.

In one of the landmark judgment of Supreme Court[12]states that ‘the essence of women’s modesty is her sex’ and hugging or kissing without her consent, Raising her skirt before one’s own or the wife’s relatives[13] touching her private parts, holding her breasts,[14] try to open a string of her clothes in front of others[15]& any act which is likely to put her to shame would come under the ambit of Section 354 of the Indian Penal Code. However, if sexual intercourse by a husband with his wife without her consent then, it would also amount to outraging the modesty.

Therefore, in the above-mentioned Sections, a husband can be punished if he commits sexual intercourse without her consent which affects her life although it is not a rape due to exception given under Section 375of the code. This section protects women from sexual assault, rape & anything which is covered by this section but on the other side, the exception given under this section protects the husbands whether he rapes his wife or fulfill his sexual desire by forcing her to do sexual intercourse.

[IV] Marital Rape: Not Destroy the Sanctity of the Institution of Marriage

The history of marital rape can be traced back to the principle of ‘implied consent’[16]which says that the husband cannot be guilty of rape with his wife and he can take the defence of matrimonial relationship. At the time of marriage, she gives consent to his husband for cohabitation and she cannot retract the consent. Moreover, the same opinion was also given by Lord Halsbury.[17] At present, the position of women is different and the Constitution also provides that everyone is equal before the law and nobody will be treated unequally. 

Lord Keith and Lord Denning state that “a wife is not a property or chattel of his husband and marriage regarded as partners in all affairs which are their common concern”.[18]The old view towards marriage is changed and it is not only a sacrament but it is also a contract of marriage.[19]Further, criminalization of marital rape does not destroy the institution of marriage but the truth is that rape destroys the institution of marriage when inside the four walls a husband tortured his wife or sexually abuses her that will destroy the sanctity of marriage. The Apex Court said, “marriage is not institutional but personal and nothing can destroy the ‘institution’ of marriage except a statute that makes marriage illegal and punishable”. A divorce may destroy a marriage, but it does not have the potential of destroying the institution of marriage or the family system.[20]

While discussing section 375, the committee has said that consent in marriage cannot be consent forever and women will not take marriage so simple that she will go and file complaints if marital rape will be criminalized.[21]Moreover, women have the remedy to file for divorce under Section 13 of the Hindu Marriage Act, 1955 and there is no ground as marital rape under this section but it can be clubbed with the other ground mentioned under the said provision. Marital rape can become under the ambit of cruelty and this ground can be used for divorce.

[V] Judicial Interpretation on Marital Rape

Constitution of India is law of the land and Article 13 states that if any law inconsistent with Fundamental rights enshrined under Constitution, then it will be ultra-virus and declared unconstitutional by Courts. Marital exemption to rape provided under exception II of Section 375 fails to meet the standard of conformity with the provisions of Article 14 and Article 21 of the Constitution of India.

Article 14 of the Constitution deals with equality before the law and equal protection of the law. The Apex Court has laid down two guidelines for valid classification[22] i.e. the classification must be founded on intelligible differentia and that differentia must have a reasonable nexus with the object of the Act. The exception II of Section 375 distinguishes between married women and unmarried women and there is no reasonable nexus with the object of the Act. Moreover, in the case of Independent thought vs Union of India[23], the Court held that the rationale of classification between a married and unmarried child in Exception 2 is arbitrary, unreasonable and violative of the doctrine of equality.

Article 21 of the Constitution provides the right to life and personal liberty. The right to life includes the right to life with dignity.[24]If a husband forcefully sexes with his wife without her consent violates its privacy[25] and dignity also. She is not chattel or property of her husband and she has the right to refuse for sex when she does not want and marriage does not give license to rape his wife. The right to abstain from sexual intercourse is a recognized principle[26] and right to abstain from sexual activity for all women irrespective of their marital status as fundamental rights conferred by Article 21 of the Constitution. Therefore, the exemption provided to rape is a clear violation of Article 14 and 21 of the Constitution.

[VI] Conclusion:

Criminalization of marital rape is still debated issue existed in India and after the recommendation is given by Justice Verma Committee in 2013 and Pam Rajput Committee in 2015 for the criminalization of marital rape, parliament still not ready to make a law due to breakdown of the institution of marriage. From ancient times, women are protesting for their rights and equality between men and women in society and how women have been treated from the Vedic period to this era. Today’s as per Constitution, everybody will be treated equally and everyone is equal before the law which is provided under Article 14 of the Constitution.

Indian Penal Code was enacted in 1860 and it is old law and time to time our judiciary interprets the law according to the needs of the society such as decriminalization of Homosexuality, Adultery but the debate over a marital exemption to rape still existed. There is no such provision in Indian Penal Code, 1860 which penalizes marital rape but it can be made offence under Section 377, Section 498A and Section 354 of the said Act. There are many flaws in our criminal law because of that the real cases are affecting and not getting Justice.

Further moving to the personal laws, the author found that marital rape itself is not a ground for divorce but it can be used the ground as cruelty under the Hindu Marriage Act. It is established by Apex Court that marital rape can be a reason for the breakdown of marriage but not the institution of marriage and the truth behind the breakdown is Rape or sexual assault by husband with his wife. Rape will be rape if it was done by the husband or any person and there was chaos in the modern society by providing this exemption to men where equal rights given to both men and women equally. Marital rape does not destroy the sanctity of the institution of marriage and the parliament has to amend the law and provides a ground under personal laws.

This exemption is a clear violation of the right to sexual privacy and right of bodily self-determination conferred under Article 21 of the Constitution. Therefore, the marital exemption to rape is a violation of Article 14 & 21 of the Constitution. It should be criminalized for better protection to women and it will give equality between men and women. The consent or will is an essential element of rape and nobody has a right to indulge in sexual activity with women against her wishes. For a better society, male and female both has to treat equally. The criminalization of marital rape will be a small step towards a better society.

[1] Exception II of Section 375 under IPC

[2] Francis Coralie Mulin v. Administrator, Union Territory of Delhi, 1981 SCR (2) 516

[3]Govind Kumar Saxena & Major Gen. Praveen Kumar Sharma Position of women in Vedic, post-Vedic, British, and contemporary India,  4  International journal of legal developments and allied issues (2018) 372

[4] Dr. Bir Pal Singh, status of woman in ancient, medieval and modern period, 08 Chapter 2 Shodhganga https://shodhganga.inflibnet.ac.in/bitstream/10603/123356/8/08_chapter2.pdf

[5] Well Known Swyamvara such as Sita’s marriage in Ramayana & Dropati’s marriage in Mahabharata.   

[6].Women Status in the Past Traditional Indian Culture, 08 Chapter 3 Shodhganga, https://shodhganga.inflibnet.ac.in/bitstream/10603/165851/8/08_chapter_03.pdf

[7] Divyansh Hanu Rathi, cruelty in marriage: analysis of supreme court cases on section 498a IPC, https://www.latestlaws.com/wp-content/uploads/2017/09/Cruelty-in-Marriage-1.pdf

[8] Nimeshbhai BharatBhai Desai vs. State of Gujarat, 2018 SCC Online Guj 732

[9] Navtej Singh Johar & Ors. Vs. Union of India & Ors, AIR 2018 SC 4321

[10] Suresh Kumar Koushal & Anr. Vs. Naz Foundation & Ors., (2014) 1 SCC 1

[11] Nimeshbhai BharatBhai Desai vs. State of Gujarat, 2018 SCC Online Guj 732

[12] State of Punjab v. Major Singh, AIR 1967 SC 63

[13] State of Rajasthan vs. Vijairam, (1968) Cr.L.J. 268

[14] Baldev vs. State, (1984) Cr.L.J. N.O.C. 122

[15] Rameshwar vs. State of Haryana, (1984) Cri.L.J.786

[16]Sir Matthew Hale. History of the Pleas of the Crown, 1 Hale PC (1736) 629. See further S. Fredman Women and the Law (OUP, 1997) pp. 55-57 & Justice Verma Committee, Report of the committee on Amendments to Criminal law

[17] A man cannot be guilty as a principal of rape against his wife, for his wife is in general unable to retract her consent to cohabitation which is part of part of the contract of marriage.

[18]R. v R [1991] 4 All ER 481 at p.484 , Joseph Shine vs. Union of India, 2018 SCC OnLine SC 1676

[19] Purshottamdas v. Purshottamdas 21 Bom. 23, Bhagwati Saran Singh v. Parmeshwari Nandar Singh, 1942 ILR All. 518, Muthusami v. Masilamani, 33 Mad. 342.

[20]Independent Thought v. Union of India, (2017) 10 SCC 800

[21]The 167th Parliamentary Standing Committee Report on Home Affairs on the Criminal Law (Amendment) Bill of 2012

[22] State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75, 80.

[23]Independent Thought v. Union of India, (2017) 10 SCC 800

[24] Francis Corallie Muin v. Union Territory of Delhi, AIR 1981 SC 802

[25]R. Rajagopal v. State of Tamil Nadu,1994 SCC(6) 632

[26]Govind v. State of M.P, AIR (1975) SC 1378 (India); Kharak Singh v. State of U.P, (1963) AIR SC 1295

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