Marital Rape in India: Legal Perspective, Landmark Judgments, and the Path Forward

Mahima Devda | Legal Thikana 

Introduction: Understanding the Position of Women in Hindu Philosophy

कुसुम-सधर्माणि हि योषितः सुकुमार-उपक्रमाः। ताः तु अनधिगत-विश्वासैः प्रसभम् उपक्रम्यमाणाः संप्रयाग-द्वेषिण्यः भवन्ति । तस्मात् साम्ना एव उपचरेत।

Women are like flowers; they should be treated very tenderly.No action should be forced unless full faith is instilled in the wife's heart towards the husband. According to Hindu scriptures, no religious rites can be performed with perfection by a man without the participation of his wife. Wife’s participation is essential in any religious rite. Wives are thus called ‘Ardhangani’. They are supposed to be given not only important but equal positions with men.

What is Marital Rape?

Marital Rape refers to the sexual intercourse between a man and a woman, who are legally accepted as husband and wife, where the woman does not give consent for such intercourse. Marriage gives right to the husband and wife to lawfully consummate their marriage. Marriage is a stable relationship in which a man and a woman are socially permitted to have children implying the right to sexual relationships. While marital rape leaves physical scars, it inflicts much deeper scars on the psyche of the victim which remain with her years after the offence has occurred

Landmark Judgements

In a landmark judgment in 2018, the Supreme Court (SC) of India held that it will be considered rape if a man has sexual intercourse with his wife if she is aged between 15 and 18.

In the State of Karnataka vs. Krishnappa, the SC held that sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.

In the Suchita Srivastava vs. Chandigarh Administration, the SC equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.

Arguments Against Criminalising Marital Rape Destabilise marriage as an institution Misuse of law Law Commission has not recommended Implementation issues Diversity in Culture Awareness is more Arguments For Criminalising Marital Rape Ensuring Security of Women Marriage is not a license Bodily Integrity is intrinsic to Article 21 Supreme Court has included sanctity of women, and freedom to make choices related to sexual activity under the ambit of Article 21.

Article 14 Torture for Life Way Ahead The SC’s refusal to stay the order, the first time put a man on trial for marital rape, indicates that the higher judiciary is willing to carry out a serious examination of the colonial-era provision.

The JS Verma committee set up in the Nirbhaya gang-rape case and the UN Committee on Elimination of Discrimination Against Women (CEDAW) in 2013 had recommended that the Indian government should criminalize marital rape.

Indian law now affords husbands and wives separate and independent legal identities, and much jurisprudence in the modern era is explicitly concerned with the protection of women. Therefore, it is high time that the legislature should take cognisance of this legal infirmity and bring marital rape within the purview of rape laws by eliminating Section 375 (Exception 2) of IPC.

Recent Developments in Indian Courts

The exemption is also under challenge before the Gujarat High Court on the grounds that it undermines the consent of a woman based on her marital status.

Separately, the Karnataka HC has allowed the framing of marital rape charges against a man despite the exemption in the law.

Also, the Supreme Court recently refused to stay the Karnataka High Court order that for the first time put a man on trial for marital rape. The SC’s refusal to stay the order indicates that the higher judiciary is willing to carry out a serious examination of the colonial-era provision.

Recently, the Delhi High Court delivered a split verdict in a batch of petitions challenging the exception provided to marital rape in the Indian Penal Code (IPC).

Conclusion

Mary E John writes: To accept the idea that rape can happen within marriage, understanding of the institution itself must change. Therefore, State's intervention through the legislative route is required to balance individual dignity and prevent the possibility of abuse of legal remedies which may end up harming an individual's dignity/reputation,"

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• Marital rape in India

• Marital rape laws

• Section 375 IPC Exception 2

• Supreme Court on marital rape

• Landmark judgments marital rape

• Women’s rights in marriage

• Article 21 and bodily integrity

• Arguments for and against marital rape law

• Criminalization of marital rape

• Legal identity of wife India