By Anshika Prakash

Legal Intern, H.K. Law Offices

The semantic understanding of Rape is, non-consensual or forced intercourse with someone but different perspectives push through when you consider the act of rape in the setting of a marriage in India. In a country that considers marriage a sacred institution, marital rape not only becomes hotly debated but its very legislative validity starts being questioned. India is one of the very few countries that is yet to criminalise Marital Rape but recent discussions on its criminal status has led to several advancements, a recent one being the Delhi high court verdict on marital rape resulting in an impasse. 


Earlier in 2022, Delhi High Court heard final arguments of a series of PILs that had been filed, challenging the marital rape exception which is inscribed in Section 375 of the Indian Penal Code. What followed was a split verdict given in the high court led by the two-judge bench of Justices Rajiv Shakdher and C Harishanker. Justice Rajiv Shakdher came forward and criticized the exception, rendering it unconstitutional and one that stems from deep rooted ideals of patriarchy. He was quoted as saying “classification, in my opinion, is unreasonable and manifestly arbitrary as it seems to convey that forced sex outside marriage is ‘real rape’ and that the same act within marriage is anything else but rape”, hence showing his apprehensions regarding the same. Justice C Harishanker on the other hand reached a dissenting conclusion stating, “exception under Section 375 of the IPC is not against the constitution by reason of the nature of the relationship shared between husband and wife.” Justice Hari Shankar stressed heavily on the qualitative difference between the relationship of a husband wife and that where parties aren’t married and said “there is a right to expect sexual relations from both sides in a marriage, but no such right when the parties are not married” and even went on to question the supposed ‘emphasis’ that was being put on the wife’s consent. As response to this claim, Justice Rajiv Shakdher illustrated that on instance of the relationship shared with a girlfriend or a live-in partner, forced sex would amount to an offence and pointed “The relationship cannot put it on a different pedestal. A woman remains a woman,”. With such fundamental differences between the judges, a split verdict was delivered by the high court and the judges agreed on granting a certificate that would enable this issue to be heard at the apex court. With the shifting of this issue to Supreme Court, the judges believe that essential questions that have been raised will be more effectively answered.


Delhi high court does not happen to be the only high court that has taken up cases of marital rape, in fact Marital Rape is a nationwide issue.  It was in August 2021 that the Chhattisgarh high court ruled that sexual intercourse between husband and wife would not amount to rape even if it occurred without the consent of the wife. Another instance would  be the 2021 Gujrat High court notice to the Centre which stated how now more than ever it is required from constitutional courts to decide whether such an exception impinged on fundamental human rights. Earlier this year, Karnataka High Court rape charges to sustain while hearing petition of a man seeking to quash them. He was accused of forcing his wife into being his ‘sex slave’ and when the charges sustained, he appealed to the Supreme Court. Supreme Court refused to stay this Karnataka High Court judgement on stating that ‘It may be noted that the High Court has not ruled on the constitutionality of Exception  2 to Section 375 IPC.’ Such discourses in the court of law have also occasioned in bringing about important legislative decisions for instance, in 2021 Kerela High Court stated that even if marital rape would not raise criminal liability in form of rape but would be just grounds for divorce. Another example of significant legal developments brought about by the marital rape discourse would also include the Supreme Court ruling which held the exception unconstitutional in cases of minor married girls. Now, the consent given by a married or otherwise girl, below the age of 18, would be considered as immaterial and hence would necessarily result in rape even if she consented to it. 


With such increasingly varying verdicts and comments made in court about marital rape, the understanding of rape and what counts as consent becomes increasingly arbitrary hence making it imperative to look understand the grounds on which the petitioners challenged the very validity of the Exception 2 of Section 375 of IPC. Petitioners fist brought attention to a strange paradox gets created wherein if a wife gets physically abused or murdered it would amount to an offence but rape would not. Such a loophole raises the question whether this exception  has any logical standing to begin with. There were some concerns of the Delhi government that the striking down of such an exception would lead to the creation of a new offence which would be outside the jurisdiction of courts. Another narrative was introduced by making the argument that women can seek remedies under grievous hurt and cruelty which are already enshrined under the Indian Penal Code. As response to this contention the petitioners stressed on the fact that no such ‘new offence’ would be created since rape as an offence already exists in Section 375. Removing the exception would just extend the right of married women to defend themselves against forced sexual advances by their husbands. While the ruling of raising eligible age of marital rape from 15 to 18 was being given by Supreme Court, it was held that “by partly striking down Section 375 IPC, no new offence is being created”, which poses the question, how it would be any different if we were to do away with the exception entirely. To support the idea that no new offence is created, legal academicians pointed out that striking down of the exception would only omit the ‘unconstitutional’ immunity that is given to men from being prosecuted for the crime of rape. The amici curiae appointed in this case also spoke in favour of striking down of the exception. Advocate Karuna Nundy who appeared for the petitioners,  stated that it is essential that marital rape be outlawed since it is clear violation of “bodily integrity of wives”. Senior Lawyer Rebecca Jon was noted as saying “There can be an expectation [regarding sex in a marriage] but expectation cannot lead to forcible sex with your wife,”.

The next contention that was raised by the petitioner was how the marital rape exception  several fundamental rights of the married women. 


For one, the exception  was a clear violation of Article 14 which guarantees equality and equal protection under the law and marital rape is breach of a married woman’s personhood. Much like unmarried women who can enjoy protection under this article, unmarried women should also be able to exercise this right especially against heinous crimes such as rape that intrude their physical autonomy. The exception  furthers the archaic notion of women being properties of men by not recognising married women as separate legal entities that require equal protection.


Article 21 of the constitution ensures right to life and personal liberty and with such exception  in place, the very right to live in a dignified manner gets violated. This article does not safeguard the right to merely exist but also envisages the notion of live life in a dignified manner including privacy, health, safe environment, etc. Each case of forced sexual contact of a husband on his wife with such an exception deters the wife from exercising this very right to live in a dignified manner and it also becomes detrimental to her mental and physical. Moreover, in Suchita Srivastava V. Chandigarh Administration, it was ruled that “the right to make choices in sexual activity is also included under the right to personal liberty which is a part of Article 21”. Exception 2 very conveniently gives a pass to husbands who force their partners into sex or any sexual activity hence making their wives void of this right to make choices regarding their sexual activity. 


Supreme court in Bodhisathwa Gautam v. Shubhra Chakraborthy held that “rape is a crime against basic human rights and is violative of victim’s most cherished, fundamental right.” While talking about right to live with human dignity, an entire section of women is ignored due to the presence of such an exception. Is it important to question why we leave out married women in conversations about this right and can marriage, as an institution, enjoy enough power to take away such a fundamental right.


Supreme court also ruled privacy to be one of the fundamental rights which also includes making intimate decisions regarding one’s sexual and or procreative natures and habits and who the person decides to make such intimate relations with. This exception removes any and all consequence from the husband in case this right is breached by means of any forced sexual activity. A married woman completely loses her right to sexual privacy due to Exception 2.

Marital rape being an issue of contemporary times has now developed complex layers to it and cannot be dealt with unilaterally, but does it really justify the notion that treats marriage as presumed consent for sex. On further inspection and dissecting, one can come to the conclusion that such notions are only valid in a world that treats a women’s identity to be subordinate and subsumed to that of her husband. Potentially inflammatory statements that describe sexual interactions in a marriage, as man exercising the right that is vested in him by marriage further the idea that a wife’s consent becomes as good as inconsequential in the marriage. Refusing women, the very basic right to deny sexual advances communicate the very deprave ideals of patriarchy into the society at a time where such ideal have no place to sustain in the modern society. What it also manages to do is reduce women as simply paws of the institution of marriage instead of separate entities with rights and personal bodily autonomy. 


Respondents resorted to three primary arguments as response to the points raised by the petitioners. The Union Government in an affidavit submitted to the Delhi High Court mentioned how the criminalizing of marital rape would lead in the harassment of husbands by means of false accusations. The Union Government claimed “if all sexual acts between a husband and his own wife qualify to be marital rape then the judgment whether it is marital rape or not will singularly rest with the wife.” This argument has a long history of being used during conversations regarding sexual and domestic violence against women. The same was claimed while discussing extremely vital protective laws such as Protection of Women from Domestic Violence Act, the Dowry Prohibition Act and Section 498A of the IPC. In 2017 the same was repeated by the centre who had told the court that the removal of the marital rape exception would threaten the institution of marriage as the criminalisation would leads to the constant harassment of husbands. Along the line of this argument, acute concern is placed on the matter of false accusation and misuse of a possible marital rape, so much so that it has entirely replaced the argument that explains why such an exception would be fundamental to the issue of sexual violence against women. It is also often quoted that there would be rampant misuse of a marital rape law by ‘vengeful estranged wives’ and all the fake report would amount to ‘legal terrorism’, a term coined by the trial court with respect fake dowry cases.

There is also the seemingly inexorable problem of determining whether the intercourse between the parties was forced, especially in a marriage setting. CEO of International Foundation for Crime Prevention and Victim Care Dr Prasanna Gettu points out, “Even in cases of rape by someone who knew the girl, it is difficult to prove rape. Proving rape is always based on circumstantial evidence,” It is although true that medical evidence including injuries and marks on the back or chest or private parts usually are used to establish instances of rape but the centre was quotes as saying, “But this corroborative evidence may be rendered useless in case of allegations of marital rape. It will be difficult to determine as to when the consent was withdrawn by the married. The cost of the circumstantial and corroborative evidence will become futile in case of marital rape,” The Centre has also stressed on the doctrine of separation of powers which is prescribed by the constitution of India and any interference by the court would be akin to the clear violation of this principle and hence cannot allow the expropriate the power of the legislature.

Thirdly, the point was raised regarding remedies that are already inscribed under the Domestic Violence Act which already deals with sexual abuse. The Delhi government further shed light to the additional remedies one can seek under the Indian Penal Code under offences such as grievous hurt and cruelty. These examples often cited by the courts and centre give the impression that criminalising marital rape would be extremely redundant when remedies to deal with the same already exist. The striking down of the same, the Delhi government said would lead to the creation of a new offence which as previously mentioned is outside the ambit of the powers that reside with the Courts of India. 


Rape in itself is an odious crime that further requires the legislature to come up with laws that deal with it in an unequivocal and nuanced manner. It is high time that the legal system goes through major rework and refining that defines consent while distinguishing ‘passing submission’ efficiently while also dealing with different types of punishments for brutality, violence, intimidation etc. Marital rape is a multi-layered problem that the country faces and due to points stated above, it becomes increasingly difficult to address and hence cannot be simply done in a linear fashion. To curb society of sexual violence, it is essential to recognise the very root of the problem and strip down the layers of it since it affects the society as a whole. While it is implicit to provide autonomy to a person to make calls in their most intimate relationships, but this simply does not resolve the debate of marital rape. Akila RS, a lawyer based in Chennai perfectly captures this line of argument by stating, “Yes, there is some difficulty in the criminal jurisprudence here, but we have to develop it. And at least, in cases where there is enough proof for proving marital rape, the law will help punish the husbands,”.

Published by meghachaturvedi

Associate Partner, H.K. Law Offices

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