Marital Rape: A Legal Paradox and the Need for Reform

 

Marital Rape: A Legal Paradox and the Need for Reform

 Abstract

A law that differentiates between the rights of an unmarried woman and a married woman creates an inherent legal inequality and exemption to marital rape in India is an apt example. While being violative of Article 14 and Article 21 of Indian Constitution, the Bhartiya Nyaya sanhita continues to the legacy of IPC by retaining marital rape exemption. Despite judicial concerns raised in Sakshi v. Union of India and Independent Thought v. Union of India, the Indian legislature has failed to align with the international standards of humanity. In light of the Justice J.S. Verma Committee’s recommendations to criminalize marital rape, this study aims to suggest comprehensive reforms and compare India’s legal system with those of progressive legal reforms of other nations, where marital rape exemption has been abolished, advocating for a more equitable and just approach to protecting the rights of a married woman. By analyzing constitutional principles, case laws, Law Commission Reports, and International Human rights treatise, this paper argues that the marital rape exemption is unconstitutional, unjust, and incompatible with modern frameworks.

Keywords

Marital Rape, Comparative legal analysis, Bhartiyaya Nyaya Sanhita, criminalization, Indian Penal Code

Introduction

India is one of the few democratic countries that do not recognize marital rape as a crime. Marital rape refers to the non consensual act of sexual intercourse or sexual acts by one spouse (typically by husband) on the other spouse (typically on wife) through force or coercion. Though Protection of Women from Domestic Violence Act, 2005[1] recognizes marital rape as a form of domestic violence and provides for protection orders and other relief measures for survivors but it has, still, failed to recognize marital rape as a crime. Marital rape is, undoubtedly, against the principles of bodily autonomy, gender equality, right to life and liberty under article 21 as well as against the international standards of human rights. The objective of this research is to critically examine the following:

a)      The constitutional and human rights violations arising from the marital rape exemption

b)      Judicial and legislative trends regarding marital rape in India

c)      A comparative analysis of marital rape laws in democratic nations.

d)     Recommendations for legal reforms to ensure gender justice.

Research Methodology

The methodology of Doctrinal Research is applied to provide the accurate and précised interpretation of the primary legal sources (including statutes, case laws, and constitutional provisions) and to strengthen arguments for legislative amendments by demonstrating gaps in the existing legal framework. While, comparative legal analysis is used to thoroughly analyze the different legal approaches of various nations (including United States, Canada, France, etc) to the similar legal issue, that is, marital rape.

Historical background of marital rape laws

There is a misconception in people’s mind that when a woman marries to a man, she willing delegates power to decision on her behalf to her husband, having no voice in putting forward her opinion. And its history can be traced back to 17^th century, when Sir Matthew Hale, an English jurist and Chief Justice of the King’s Bench, wrote his treatise THE HISTORY OF THE PLEAS OF THE CROWN in 1736. He stated “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.” This statement was based on the belief that marriage is an irrevocable contract that grants the husband perpetual sexual rights over his wife and came to know as the SIR MATHEW HALE’S DOCTRINE. This principle was widely adopted in common legal system and remained unchallenged for centuries. Lord Macaulay introduced the marital rape exemption into the India’s legal system while drafting the Indian Penal Code, 1860 from British colonial laws.

 

Constitutional violations due to Marital Rape Exception

A law which is against the provisions of the constitution is supposed to be struck down by the Hon’ble Supreme Court. But the reality is that the law which is violating the rights of a married women and a threat to the gender justice is still prevailing in our nation. Section 62 clause (2) of Bhartiyaya Nyaya Sanhita, 2023 (earlier Exception 2 to Section 375 of IPC[2] ) still retains the exemption of marital rape as a newly drafted law

ARTICLE 14- RIGHT TO EQUALITY: The exemption creates an arbitrary classification between married and unmarried women, violating the right to equal protection under law.
ARTICLE 21- PROTECTION OF LIFE AND PESONAL LIBERTY: The Hon’ble Supreme Court has expanded the scope of Article 21 to include bodily autonomy and sexual consent in the case of Suchita Srivastava V. Chandigarh Administration[3]. So very clearly, the exemption is the violation of the right to life and personal liberty of married women.

ARTICLE 51(h): the fundamental duties also direct to develop humanism and the spirit of inquiry and reform but in reality no reform is made to eradicate this violative exemption

ARTICLE 51(i): This provision states to abjure violence, legally, which means we should strike down the exemption because marital rape is a form of sexual violence.

Legal Analysis of marital rape exemption in India

Section 63 of the Bharatiya Nyaya Sanhita, 2023 defines rape but exempts husbands from prosecution: “Sexual intercourse by a man with his own wife, the wife not being under eighteen years of age, is not rape.”This provision directly prevents marital rape from being recognized as a criminal offense, reinforcing the outdated assumption that marriage implies perpetual consent. The policymakers are against the criminalization of marital rape arguing that it will destabilize the institution of marriage, and will lead to the false accusations by misusing the law, although no statistical data supports this claim. The government also argues that victims can seek protection under Section 86 BNS (Cruelty) or the Protection of Women from Domestic Violence Act, 2005 (PWDVA). But the existing law is against the principle of consent, which is the core principle of rape laws. Also BNS and PWDVA do not criminalize non-consensual intercourse, leaving victims without criminal redress. And the exemption is based on Hale’s Doctrine (1736), which presumed irrevocable marital consent, a concept that has been abolished in most democratic countries. So it’s the high time for India to take a revolutionary step.

The IPC, 1860, drafted during British rule, had several outdated provisions so The 42nd Law Commission[4] (1969–1971), was formed to review the Indian Penal Code (IPC), 1860, and suggest reforms in criminal law. Though it suggested expanding the definition of rape (section 375 IPC), it did not recommend to criminalize marital rape. During the third wave of feminism, The 172nd Law Commission of India[5] (1997–2000) was constituted to review rape laws under the Indian Penal Code, 1860 (IPC). It reinforced the importance of free will in sexual relations and suggested making rape laws gender-neutral (both men and women could be victims of rape) but explicitly refused to criminalize marital rape, stating: “It would not be appropriate to introduce the concept of marital rape in India, considering the socio-economic conditions and the institution of marriage in this country”, giving similar justifications as of the 42nd law commission. Then in December 2012, Justice J.S. Verma Committee[6] was formed in response to the 2012 Delhi gang rape case, where brutal sexual assault on a 23-year-old woman was committed, which sparked nationwide protests, demanding stricter laws against sexual violence. This committee suggested that marital rape exception violates Articles 14 and 21 of the Constitution, suggesting removing Exception 2 of section 375 of IPC. It has also suggested that armed forces personnel accused of sexual violence should be tried under ordinary criminal law rather than being shielded by the Armed Forces (Special Powers) Act (AFSPA), 1958[7].

In 2004, while deciding the case of Sakshi v. Union of India[8], the issue before the Hon’ble Supreme Court was whether the rape laws in India have adequately protected women from sexual violence, including in the institution of marriage, in which Supreme Court recognized that forced sex within marriage can amount to sexual rape. This case shows the loopholes in Indian rape laws that despite being against the constitution, husband is given immunity in marital rape cases.

The case of Independent Thought v. Union of India[9] came as transformative step towards the reformation of Indian rape laws, as the Hon’ble Supreme Court removed the exemption of marital rape for wives under 18 years of age, ruling that child marriage does not imply consent to sexual intercourse. By emphasizing age-based classification in rape laws must align with the constitutional rights, this judgment set a judicial precedent questioning the validity of the marital rape exception. This judgment contradicts itself as it is own self differencing between a wife under 18 years of age and wife above 18 years of age.

By stating husbands are not the masters of their wives, the judgment of Joseph Shine v. Union of India[10], the Supreme Court challenged the patriarchal notions of marriage and held treating women as submissive in marriage violates Articles14, 15, and 21 of the Indian Constitution., resulting in striking down Section 497 of IPC (adultery) .

Pending before the Supreme court of India for final adjudication, the  Delhi High court, in the case RIT v. Union of India[11] gave split verdict on the question that whether the Exception 2 to Section 375 IPC, which provides immunity to husband in the matter of marital rapes . While Justice Rajiv Shakdher held that the marital rape exception is unconstitutional as it violates Article 14, 15 and 21 of the Indian Constitution, Justice C. Hari Shankar ruled that criminalizing marital rape is a legislative decision, not a judicial one. This case sparked a nationwide debate on the legality of marital rape, demanding for a constitutional ruling by the Supreme Court.

 

Comparative Legal Analysis of Marital Rape Laws

Though various nations have adopted SIR HALE’S DOCTRINE, in their legal system but as different waves of feminism came into the world, many countries have recognized the criminalization of marital rape.

A.    UNITED KINGDOM: Abolition of Hale’s Doctrine in 1991

The House of Lords in R v. R[12] overturned the Hale’s Doctrine, holding that

·         Marriage does not imply perpetual consent

·         A wife has the right to refuse sexual intercourse at any time.

·         Marital rape is a violation of bodily autonomy and a criminal offense.

The ruling abolished the marital rape exemption in the U.K., and set a global precedent, leading to legislative reforms in many common law countries (U.S., Canada, and Australia).

B.     United States: Gradual Rejection of Hale’s Doctrine

Marital rape was partially criminalized in the 1970s, but it was only in 1993 that all 50 states removed the marital rape exception. In the landmark case of People v. Liberta[13], the New York court of appeals ruled that marital rape is equally punishable as the non marital rape, affirming that marriage does not negate the requirement of consent.

C.    Other Countries

Various democratic countries like Canada, Germany, France and South Africa has absolutely criminalized the marital rape.

COUNTRY	YEAR OF CRIMINALISATION	LANDMARK CASE / LEGISLATION
United Kingdom	1991	R v. R abolished the marital rape exception.
United States	1993	Marital rape is crime in all 50 states.
Canada	1983	Amendment to the Criminal Code of Canada, treating marital rape equally as non-marital rape.
Germany	1997	Abolished marital rape exception, treating it as sexual violence.
France	1992	Recognized marital rape as distinct offence.
South Africa	2007	Sexual Offences Act, removed distinctions between marital and non-marital rape.

 

International Human Rights Treaties Mandating Criminalization

Several international conventions and human rights have mandated to criminalize marital rape, recognizing it as violation of human rights, bodily autonomy and gender equality.

·         This exemption is against the article 2 and article 16(1) of the Convention the Elimination of All Forms of Discrimination against Women (CEDAW)[14], 1979 which seeks to eliminate all forms of discriminatory laws against women and providing women equal rights in marriage, including control over their bodies and sexuality, respectively.

·         Article1, article 3 and article 5 of United Declaration of Human Rights (UDHR)[15], 1948 provides equality in dignity and rights, right to life, liberty and security as well as prohibiting torture and cruel, inhumane, or degrading treatment to anyone, which includes forced sexual intercourse within marriage.

·         Prohibiting torture and inhumane treatment and ensuring arbitrary or unlawful interference with individuals’ privacy Article 7 and Article 17 ensure to strike down the exemption of marital rape. In spite of ratifying International Covenant on Civil and Political Rights (ICCPR)[16] in 1979 making its provisions legally binding, India fails to follow its principles.

·         Although India signed Convention Against Torture and Other Cruel, inhumane or Degrading Treatment or Punishment (CAT)[17] in 1997 but has not ratified it yet. Countries that ratify CAT must criminalize all forms of sexual violence, including marital rape. Several UN reports have affirmed that marital rape constitutes a violation of CAT.

·         United Nations Declaration on the Elimination of Violence Against Women (DEVAW)[18] Article 2 (a) explicitly recognizes marital rape as a form of gender-based violence and its Article 4 (d) calls on governments to investigate, and punish acts of violence against women, including in marital rape relationships.

These conventions and declarations laid the foundation for laws criminalizing marital rape in several countries across the world, but India despite ratifying some of them, fails to meet its international obligations. Other than these treaties, there are many more present including Beijing Declaration and Platform for Action (1995)[19], Sustainable Development Goals, United Nations (2015-2030)[20] and Council of Europe’s Istanbul Convention (2011)[21] which is the first legally binding treaty specifically addressing violence against women, that directly challenges India’s marital rape exemption, which contradicts the principles laid down by them. Therefore, there is urgent need for the intervention of Judiciary and Legislature to intervene in the existing laws of India to align them with global human rights standards.

 

The Way Forward: Legal and Policy Reforms in India

1.      Mandatory Training Programs for Law Enforcement and Judiciary

Mandatory Judicial course on handling of marital rape cases should be established for judges, magistrates and prosecutors and training on gender sensitivity and international legal standards. Standard operating procedures (SOPs) needs to be developed for investigation and strict monitoring mechanism shall be implemented to ensure that the police do not dismiss cases due to societal bias. The government should mandate the forensic and psychological training for medical officers before handling the case and develop guidelines for conducting sensitive and trauma-informed medical examinations.

2.      Legal and Institutional Reforms

Fast track courts needs to be established with appointing specialized judges trained in handling gender based and sexual violence related cases. Guidelines should be made to prevent the secondary victimization of the victim while ensuring the right to speedy trial. The legal immunity for husbands should be removed by amending section 63 (2) of BNS (former exception 2 of Section 375 IPC) and ensuring equal protection under law for married and unmarried woman. Marital rape should be recognized as a form of sexual abuse under Protection of Women from Domestic Violence Act, 2005 (PWDVA) guaranteeing both civil and criminal remedies. The Hon’ble Supreme Court should strike down the marital rape exemption as unconstitutional, just as it did with Section 497 IPC (Adultery) in Joseph Shine.

 

3.      Victim Support and Rehabilitation Programs

The government should provide legal aid and psychological counseling at free of cost for marital rape survivors. Establishment of Support groups and toll free help lines number should be provided to assist victims in filing complains. Shelter homes funded by the government shall be set up for survivors facing domestic violence as well as monetary compensation and employment support should be provided. Policies should be made to ensure confidential trials to protect survivors from societal backlash and family pressure to withdraw the case. Protection should be provided to witness to prevent from intimidation by perpetrators.

4.      Public Awareness and Social Reforms

Gender sensitization curricula should be introduced in schools and colleges along with nationwide campaigns on consent, gender equality, and sexual rights within marriage. The government should make guidelines to regulate the portrayal of sexual violence and marital submission and to encourage positive representation of women’s’ autonomy and rights. The scholars of law and sociology should work with religious institutions and community groups to challenge the myths about marital consent. Every educated person should it as a duty and responsibility to promote progressive interpretation of marriage and bodily autonomy through discussions and debates. Workshops and webinars should be organized by the schools and colleges as well as by the government to raise public awareness about the international standard of human rights and constitutional principles. Public awareness campaigns need to be organizing to change the societal perceptions about consent in marriage, especially in rural areas, by emphasizing that marriage does not override an individuals’ right to sexual autonomy

 

Conclusion

Marriage should not be used as a shield to justify sexual violence and India must take immediate steps on this ongoing issue so that it did not violate the maxim given by William E. Gladstone “Justice delayed is justice denied”. Criminalizing marital rape is not just a legal necessity but a moral and constitutional imperative. The Indian constitution guarantees right to equality (Article 14), right to life and personal liberty (Article 21), and the right to protection from domestic violence (Protection of Women from domestic violence Act,2005), criminalization of  marital rape  would align the Indian laws with these principles as well as with international human rights standards. A multi-layered approach combining legal reforms, judicial training, victim support, and societal awareness is essential to awaken the legal system and society toward social evil prevailing in the nation such as marital rape. Without these structural changes, victim will continue to face legal and social barriers in seeking justice. Indian courts have acknowledged the issue of marital rape, but have not fully criminalized it. Judicial precedents such as Independent Thought v. Union of India (2017) and Joseph Shine v. Union of India (2019) provide strong constitutional arguments for striking down the exemption. Demonstrating a conflict between judicial progressiveness and legislative inaction, the Supreme Court’s pending decision on marital rape will be crucial in determining the future of women’s rights in India.

SARA TYAGI

BHAGAT PHOOL SINGH MAHILA VISHWAVIDYALAYA

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[1] Protection of Women from Domestic Violence Act, 2005, No. 43, Acts of Parliament, 2005 (India).

[2]  The Indian Penal Code, § 375, Exception 2, No. 45 of 1860, Acts of Parliament, 1860 (India).

[3]  Bharatiya Nyaya Sanhita, 2023, § 63(2), No. 45, Acts of Parliament, 2023 (India).

[4]   Law Comm’n of India, 42nd Report: The Indian Penal Code (1971).

[5]  Law Comm’n of India, 172nd Report: Review of Rape Laws (2000).

[6]  Justice J.S. Verma Comm., Report on Amendments to Criminal Law (2013).

[7] Armed Forces (Special Powers) Act, No. 28 of 1958, Acts of Parliament, 1958 (India).

[8]  Sakshi v. Union of India, (2004) 5 SCC 518 (India).

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

[10]  Joseph Shine v. Union of India, (2019) 3 SCC 39 (India).

[11]  RIT Found. v. Union of India, (2022) SCC OnLine Del 2034 (India).

[12]  R v. R, [1991] 4 All E.R. 481 (H.L.).

[13] People v. Liberta, 64 N.Y.2d 152, 474 N.E.2d 567 (N.Y. 1984).

[14]   Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13.

[15]  Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (Dec. 10, 1948).

[16]   International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.

[17] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85.

[18]  G.A. Res. 48/104, Declaration on the Elimination of Violence Against Women, U.N. Doc. A/RES/48/104 (Dec. 20, 1993).

[19] Beijing Declaration and Platform for Action, U.N. Doc. A/CONF.177/20 (Sept. 15, 1995).

[20] G.A. Res. 70/1, Transforming Our World: The 2030 Agenda for Sustainable Development, U.N. Doc. A/RES/70/1 (Oct. 21, 2015).

[21]  Convention on Preventing and Combating Violence Against Women and Domestic Violence, May 11, 2011, C.E.T.S. No. 210.