Author: Tania Aggarwal, Guru Gobind Singh Inderprastha University Delhi.

Rape is defined in Section 63 of Bharatiya Nyaya Sanhita (BNS) as sexual intercourse occurred without consent or will of a woman. Exception of this section is sexual intercourse by a man with his wife when wife is not under eighteen years of age is not considered as rape. This exception is given a termed as “MARITAL RAPE”. 

Marital rape is defined as sexual intercourse without consent of one’s spouse. Marital rape is not a criminal offence in India. Marital rape demands about the concept of consent of wife. In traditional time, the wife was assumed to be the property of the husband and he has whole control and right over him to exercise over. A man could not punish for raping his wife because she was his possession. The autonomy of women is compromised in society. It was intended that marriage is forever consent for sexual intercourse by the wife to his husband. But the act performed without the consent and will of the wife should be deemed as a criminal offence as it leads to the harassment of women by discrimination on the basis of gender and violates the right of life and dignity of women. The challenge is that the term consent is poorly understood by society. For instance, in an interview in the study of World Health Organization, a woman from Bangladesh described being hit and forced to have sexual intercourse by her husband said that “ I think this is natural and this is how a husband behaves”. This statement itself shows how societal norms are affecting the mindset of the woman and reflects that this is a heated issue which needs immediate attention. 

KEYWORDS 

Sexual intercourse, domestic violence, harassment, consent, criminal offence, discrimination, dignity, control and right, gender equality, privacy, male dominance, human rights and self-esteem, societal norms. 

Marital rape is not criminalized in India, but the rape is considered as criminal offence. This is a straight forward discrimination between a married and an unmarried woman. The consent of the wife should be considered crucial as it is the matter of the right to life and dignity of the woman. According to the UN Population Fund, more than two-thirds of married women aged 15-49 years are forced to provide sex. The International Men and Gender Equality Survey revealed that one in five married women is forced by their husbands for sexual intercourse. The women are continuously fighting for their basic rights and violation on the basis of gender. Most of the women not have that courage to raise their voice against marital rape because of the society and the reputation of their family. The marital rape results in the violation of fundamental rights of married women. The breach of Article 14 of the Indian Constitution which guarantees the equality before law and equal protection of laws for all the persons irrespective of his caste, colour, sex, creed or place of birth. This basic fundamental right is violated as the article guarantees equal protection before the law but creates discrimination between married and unmarried women by providing exception to the definition of rape in Section 63 of BNS. A married woman cannot claim for the protection of her fundamental law regarding domestic violation because of gender inequality in the society. The martial rape is violation of Protection of Women from Domestic Violence Act, 2005. The demand for criminalizing marital rape was suggested at the time of Nirbhaya rape case (2012) by the Justice Verma committee as they said that “marriage did not mean an irrevocable consent to sexual activities”. But the government did not support the suggestion. Even in the case of Nimeshbhai Bharat bhai Desai vs The State of Gujarat, the Gujarat High Court submitted that “marital rape is not just the concept and the notion of implied consent in marriage and should be collapsed. The law must provide security to every woman irrespective of married and unmarried. As per the reports given by Legal Service of India, marital rape is not a crime in only 32 countries of the world. This list includes names like Bangladesh, Pakistan, India and Republic of Congo. Being a progressive country, India is yet following the colonial laws. It is true that when any law is passed there are chances for its misuse but this chance is held with every law or act then why especially this issue is rejected on the terms of rising chances of fraudulent cases? “The search to find a voice of women can be remarkably difficult” this points out the attention for this concerning issue.  

Marital rape is not only the breach of Article 14 which states for equality before law and equal protection among laws. Even more surprisingly it violates Article 21 which states the right to life and dignity. If the right to life is given then nobody has the dominating authority over another person no matter at the time of marriage. Criminalizing the marital rape demands that marriage is not the forever consent to husband for sexual activities. It infringes the right to live with dignity as the acts performed without the will of a wife loses their human rights. In 2022, Justice Shakdher stated that “the exception to rape which termed as marital rape is unconstitutional as it was discriminatory and violated a woman’s bodily autonomy and expression”. The apex court of India provides ‘right to privacy’ under Article 21 which directly infringes the exception of rape under Section 63 of marital rape as if the consent of the wife does not considers it will be the violation of their personal life and liberty. It is not only violating the fundamental rights guaranteed by the Constitution of India but also the infringement of their human rights. Human rights are essential for living life with dignity, self-esteem and pride. No person can compromise with these basic rights but married women are doing so. How can law ignore such discrimination just by saying law cannot intervene in marital matters as it is their personal space? Does intervening in personal space be larger than bringing laws for violation of fundamental rights of married women? Do women have to sacrifice their dignity due to societal norms? 

Marital rape is not impacting physically to victim but also psychologically. This brings a negative impact of thinking to women that there is no respect for their choice and their will. This leads to the degradation of women empowerment which would be a major drawback for the society. For the growth of a nation , a positive and strong mindset is necessary. If the women of a nation are treated as property of their husband this will be the failure of the nation in psychological terms. Marriage does not mean that all the rights of a wife are transferred to their husbands. A famous quote “Most marriages in India survive because women silently endure abuse in the relationship”. This statement itself shows the example of psychological impact on women in the society. This silence needs to be broken and the voice to be heard all over. Will psychological impact on women widen the gap in gender equality?  

The court stated that “in the privacy of home and married life neither Article 14 nor article 21 have any role to play”. This statement shows the distinction between constitutional and the marital sphere. The Legal Service of India reported several reasons for challenging criminalization of marital rape, the major ground is that it would lead to destabilization in the society as it will create difference in the relationships after marriage. Another credible reason is the increase in the number of filing fraudulent cases against their husbands.  This is the major issue because there is no way of proving that the wife had not given her consent before the act done. In the case of State vs Vikash 2014, the special fast track in Delhi stated that “ the petitioner and respondent being a legally married husband and wife, the petitioner being the major, the sexual intercourse between the two, whether forcible cannot be considered as rape and no conviction can be fixed upon the accused”. In 2016, the minister for women and child development, Maneka Gandhi stated that “due to poverty and illiteracy in India the concept of marital rape cannot be applied”. But the concerning issues require a voice and awareness to be raised; it is not meant with poverty. Another case supporting the verdict of separate spheres of married life and laws, Harvinder kaur vs Harmendar singh, the Delhi High court stated that “Constitution cannot intervene in household matters as it would destroy the institution of marriage”. There is an unparalleled concept of thinking running on as there is demand for the violation of fundamental and human rights of married women but the court does not meddle into this by saying it cannot interfere in the personal space of married life. Does the woman have to accept their submissiveness against their husbands? 

The support for non-criminalizing of marital rape by default leads to male dominancy in the society. The women will not be able to raise their voice for their basic human rights. The another concerning issue is that it will contribute to the thinking of believing marriage vows as the forever consent and this traditional and ancient mindset of society brings an increase in cases of domestic violence, sexual abuse and exploitation. It is not only the mistake of man to act as dominating power but also the upbringing given by the society to them. The power of speech must be given to women against any discrimination and exploitation done by their husbands no matter if it is the personal sphere of life.  

There are various articles, research papers and blogs created for this issue as it is the voice that is required to be raised for the protection of basic rights of married women. No doubt criminalizing of marital rape will leads to challenges like an impact on the institution of marriage, increases in the fraudulent cases but solving the challenges are not impossible. The criminalization or making laws over it will be a step towards gender equality and women empowerment. The purpose of raising voice is that marriage vows are not the means of having control over the wife’s autonomy , her will is necessary for participation in sexual activity as it is the question of her privacy, her life and dignity. It is not only impacting the victim physically but also emotionally. The social and behavioral norms also play a crucial role as it challenges the self-esteem of women. Also leads to the inequality of married and unmarried women because sexual activity done by her husband without her consent is not termed as a rape.

This article relies on the range of existing resources including research papers and other relevant documents related to the topic. These resources form the essential data base for the brief study of this concerning issue. Studying arguments made both for and against the issue is crucial as it will provide the rational and logical essence of grasping the actual current situation putting aside any bias. This article also contains the reports of surveys from the UN Population Fund and International Men and Gender Equality Survey.  

This is point at issue that if the marital rape criminalized in India, how will it prove the guilt or innocence? Is this point becoming a hurdle for infringement of women rights? The analysis on behalf of findings puts forward a question whether the step will be taken for the sake of women's dignity or will it just remain a voice? The cases filed and the judgments given revolve around the separating of both the marital and constitutional spheres. But separating them is not the key solution for violation of fundamental rights of a married woman. Even if marital rape is criminalized it will require a lot of courage to women for filing their complaints as the hurdle being their family reputation in the society, fame of parents in community. This is a concerning and challenging issue to exercise over but not impossible. The only need is to pay attention over that heated issue and find possible solutions. 

Marital status should not be the criteria for defining rape, as it the question of woman dignity. It is giving a special privilege to man and by default raising the man's dominance in society. Man thinks himself the supreme personality and commander in marital life. In ancient times women were treated as the property of their husbands and after the independence of India gradual steps were taken to balance gender inequality in the society. But this issue gives a rise to widen the gap for gender equality. As the constitutional judgments clarify that the laws cannot intervene in the sphere of married life however women are staking their privacy and self-esteem. It is high time for Parliament to take a serious and effective step towards this concerning issue. No doubt challenges are there to criminalize marital rape but the demerits can be solved out. There could be a space for addition of provisions to bring law against this issue. There can be a possible mid-way solution for the Constitution to intervene in the marital sphere. If the actions will not be taken then marriage vows are going to be considered as the forever consent of wives for their husbands. This issue is the voice of women to say “NO MEANS NO” no matter what. At present time the cases for physical assault and domestic violence are increasing because of male dominance in the relation of marriage. If this issue is not given attention and is a key solution then the rise of such cases will be at its peak. In the relationship of spouses both of them own their human rights, privacy and self-esteem and it is required to maintain. As India is gradually evolving in other provisions and law, it is a critical juncture to pay attention to this matter for unraveling the issue. The measures has to be taken for the key solution of criminalizing the marital rape as what will be the criteria for proving that there was no consent of wife, how to control over the fraudulent cases and what actions would be taken for misuse if the criminalization is made? Parliament has to take a step forward to pay attention to this issue. It may be by bringing any act or bill regarding marital rape. 

1. Manupatra—Articles (case laws):

Unpublished/General WebsiteArticles, Manupatra, https://articles.manupatra.com/ .

2. Indian Kanoon—Case Laws:

General Legal Research SiteIndian Kanoon, https://indiankanoon.org/.

3. World Health Organization (WHO):

International Organization WebsiteWorld Health Organization, https://www.who.int/.

4. Goodreads—Quotes on Marital Rape:

Webpage with Specific TopicMarital Rape Quotes, Goodreads, https://www.goodreads.com/quotes/tag/marital-rape.

5. UNFPA Annual Report 2011:

Multiyear ReportUNFPA Annual Report 2011, United Nations Population Fund (Jan. 1, 2012), https://www.unfpa.org/publications/unfpa-annual-report-2011.

6. Bharatiya Nyaya Sanhita, 2023 (Indian Statute):

StatuteBharatiya Nyaya Sanhita, No. 45 of 2023 (India) (enacted Dec. 25, 2023), available at https://www.mha.gov.in/sites/default/files/250883_english_01042024.pdf 

7. International Men and Gender Equality Survey (IMAGES) – Questionnaire:

Report or Report QuestionnaireInternational Men and Gender Equality Survey (IMAGES): Questionnaire (International Center for Research on Women & Instituto Promundo, 2010), https://www.icrw.org/publications/international-men-and-gender-equality-survey-images/.

8. Country Report from Legal Service India—Marital Rape Laws:

Online Legal Commentary / ArticleMarital Rape Laws: An International Overview, Legal Service India, https://www.legalserviceindia.com/legal/article-7872-marital-rape-laws-an-international-overview.html.