About The Author
This article is written by A K Bhavana, Fourth Year B.A, LL.B Student at Government Law College, Thiruvananthapuram.
Introduction
“The law changes and flow like water and the stream of women’s rights law has become a sudden rushing torrent”. These words itself show the relevance of women’s rights in a society. From independence of India to till now women are facing different challenges like gender discrimination, lack of safety, deprival of bodily autonomy etc.
Several statues like the Equal Remuneration Act, 1976, Domestic Violence Act, 2005, Maternity Benefit Act, 1961 etc were made to address various issues faced by women through the ages. Offences like voyeurism, stalking, rape, sexual harassment etc were penalised initially by the Indian penal Code, 1860 and now by Bharatiya Nyaya Sanhita, 2023. Laws are made with an intention to provide a dignified life for women; but how far these intentions are fulfilled is a big question. The Dowry Prohibition Act, 1961 penalised the giving and taking of dowry but it couldn’t stop this system and the dowry deaths continue. Likewise, the definition of rape was very narrow and it has made more specific by the Criminal Law Amendment Act, 2013 to following the Nirbhaya gang rape case[1].
According to the Hindu Marriage Act, 1955 “marriage is a sacred union”. It can be only separated on the basis of various grounds and procedures due to its sacred nature. Despite its purity there are many offences arising out of the marital relationship like domestic violence, dowry harassment etc. Even the married women are forced to have intercourse with their husbands which is against their consent, bodily autonomy and dignity. And it is a shocking fact that marital rape is not yet criminalised in India. This Article will deal with the question whether forced intercourse after marriage amounts to rape by analysing the constituents of rape and how will it affect the dignity of the women?
Offence of Rape under BNS, 2023
As per Section 63 of Bharatiya Nyaya Sanhita 2023 and earlier Section 375 of Indian Penal Code 1860, a man commits rape when there is penetration or insertion of penis or any other object to any extent into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person or manipulates any part of the body of a woman so as to cause penetration into the private parts which is against her will consent or consent through coercion in apprehension fear of death or the victim is under age of eighteen years and other circumstances mentioned in this Section.
Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non- verbal communication, communicates willingness to participate in the specific sexual act and also that a woman who does not physically resist to the act of penetration shall not by the reason only of the fact, be regarded as consenting to the sexual activity. There are two exceptions provided in the section that a medical procedure or intervention shall not constitute rape and sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape[2].
Marital Rape as an Exception
Tracing the history, The Indian Penal Code 1860 was framed during the colonial rule and in 1940 the age for marital rape as an exception was applicable to girls of 10 years was raised to 15 years. The First Law Commission in 1847 have advised the complete decriminalization of marital rape as an exception. There is an irrebuttable and age – old presumption that consent operates when the perpetrator and victim is husband and wife in order to protect the institution of marriage. This implied consent is an output of Doctrine of Hales which propounded that husband is not guilty of rape through marriage the wife has given herself to the husband. The Doctrine of Coverture also supports this where the legal rights of a woman end with her marriage[3].
According to the Forty Second Law Commission Report, the marital rape is not an exception if the wife and husband is judicially separated and also suggested penalising the forceful sexual intercourse when the girl is from the age of twelve to fifteen years but not under the head of rape. This Commission failed to determine whether marital rape as an exception is to be continued or struck down. But in the 172nd Law Commission Report, the question why marital rape was not criminalised even though other violences against women were criminalised arose. But this observation doesn’t make any changes stating the “excessive interference in the institution of marriage”. In 2012, the J S Verma Committee stated that treating woman as a commodity is not fair and this exception should be removed, also the nature of relationship need not be considered if it’s rape. Based on Verma Committee ‘s Report a Criminal Law Amendment Act was passed in Parliament in 2013, but the legislature didn’t intervene in the “sacred” marriages in India and argued that wide deliberations are needed for criminalising marital rape in India[4].
The take of judiciary in this issue is to be analysed. The Supreme Court criminalised marital rape in the case of Independent Thought v. Union of India[5]when the wife is aged from fifteen to eighteen years. In the case of Hrishikesh Sahoo v. State of Karnataka, the Court held that under the peculiar circumstances of the case the exception under the then Section 375 of The Indian Penal Code cannot be claimed and rape is rape even it is done by husband to the wife. In a verdict passed by the Honourable Supreme Court marital rape was included in the definition of rape when it came to abortion under Medical Termination of Pregnancy Act. In the case of Bhupinder Singh v. Union Territory of Chandigarh[6]the sexual intercourse with a woman after a void marriage with her by the so – called husband will amount to rape. In the case of Anuja Kapur v. Union of India, the petitioner approached the Supreme Court to issue guidelines for punishing marital rape, the Court was reluctant do it stating it is the duty of legislature to draft laws[7].
There were opinions from several wings of the country stating the Domestic Violence Act and the provision of Cruelty as a solution for the marital rape. Even now after the advent of Bharatiya Nyaya Sanhita in 2023, there is no express provision to penalise the “offence” of marital rape which is a shame to the country and stab to women’s dignified life after marriage.
Quest on Fundamental Rights
Fundamental rights are guaranteed to all the citizens of our country without any discrimination on the basis of gender, caste, creed etc. But when it comes to rape of women in a marriage the non – interference of law shows clear discrimination. Article 14 of the Constitution guarantees equality and equal protection of law to everyone but allows reasonable classification in certain cases. The Court interferes in the marital relationship when it comes to the Section 9 of the Hindu Marriage Act, that is Restitution of Conjugal Rights. On implementation of this Section there is an intrusion into the privacy and decision making powers of the partners in a marriage. Here the Court argues the exceptional case of “reasonable classification”. In the case of Budhan Chaudhary v. State of Bihar[8], the Court held that the reasonable classification should be only based on the objects to be achieved through that classification. The criminalisation of rape and sexual assault for unmarried women and not for the wife against her husband is a clear fundamental right violation.
Article 21 of the Constitution guarantees right to life and personal liberty. Suchita Srivastava vs. Chandigarh Administration[9], the Supreme Court upheld the right to take decisions related to sexual activity with that of right to personal liberty, dignity, and bodily integrity comes in the purview of Article 21. In the case of K.S. Puttaswamy vs. Union of India[10]the Apex Court of India acknowledged that the right to privacy includes privacy to take decisions especially on one’s sexual or reproducing matters. The non criminalisation of marital rape also infringes the married women’s right to sexual privacy and bodily integrity. In the cases of Kharak Singh v. State of Uttar Pradesh[11]and Madhukar Narayana Mandikar v. State of Maharashtra[12]the Court upheld the above rights. In the case of Bodhisattwa Gautam v. Subhra Chakraborty[13] , the Supreme Court held that rape violates Article 21 of the Indian Constitution as it is a slam on victim’s right to life and dignity.[14]
Article 15 prohibits discrimination on the basis of any criterion and also Article 19 provides the freedom of speech and expression as per the Indian Constitution. By not showing bravery to enact a law penalising marital rape shows evident discrimination and hinders their right to speak up and express their identity due to the existing social stigmas.
In short, the fundamental rights of married women are violated creating a huge social division between the nature offences between married and unmarried women. The intention of the fundamental rights itself is unfulfilled by the unfair approach toward this subject.
International Views on Criminalising Marital Rape
On 25th June 2019, the UN urged its member countries to penalise marital rape and sort out the legal issues. The house is amongst the most perilous spots for females, the United Nations said on 25th June 2019, as examination demonstrated just four out of ten nations condemn the conjugal assault. Twelve nations permit offenders to evade indictment by tying in a marital alliance with their victims, stated by UN Women their leader yearly “Progress of the World’s Women report”. Phumzile Mlambo-Ngcuka, an executive director of UN Women stated in its preface; “We have seen incredible improvement in taking out oppression against females, in laws, anyway it’s not a mishap that family laws have been the steadiest to progress. The stunning inescapability of sexual partner viciousness implies that factually, house is amongst the most perilous spots for a woman to live.”[15]
Marital rape isexplicitly criminalized in 77 countries, allowed casesagainst spouses. Marital rape is illegal in 50 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia and several others.
TheUnited Kingdom, from where the IPC was largely derived,removed the marital rape exceptionin 1991.[16]
Most of the countries across the globe has adopted laws which protect the human rights of woman which can be taken as an example by India to change their stand in this issue.
Way Forward
Awareness: Both the men and women should be imparted with sex education. Jaya Jaitley Committee ‘s report can be adopted that is raising the minimum age of marriage to girls from 18 to 21 years in order to promote gender equality, better maternal heath and reduce the risk of having unwanted pregnancies as a result of marital rape. The women should be aware of their rights and should be responsive to the atrocities the face in marital life
Change in Laws: There should be an amendment in Bharatiya Nyaya Sahita, 2023 to penalise marital rape. It should be considered as a ground of divorce. The Domestic Violence Act,2005 can be amended in such a manner the marital sexual violence to the wife can make them avail of civil remedies.
Implied Consent Theory: It’s high time to struck down the presumption that marriage is a licence to do anything to the wife that is an implied consent of the wife is given to the husband after marriage.
Redressal: There should be an effective system in India to stand with the victims of marital rape ensure them justice and rehabilitation if needed. There should be a support from the authorities to address their grievances.
Global example: India can study various countries’ take on the offence of marital rape and formulate policies based on the observations which will be a huge step in upholding women’s rights.
Conclusion
India being a democratic country with the largest Constitution which is the soul of the citizens of the country should not be treated as a piece of paper. The equality, dignity, freedom is guaranteed to everyone without any discrimination. The non criminalisation of marital rape is an attack on these fundamental rights which creates a divide between married and unmarried women. Ultimately it is against the essence of the Constitution.
All human beings need circumstances to live a dignified life and these circumstances can be created by the State. Every Women should have an atmosphere to live with dignity and safety even if it is their home or outside. It is the responsibility of the law and society to ensure this. It is a total injustice to decriminalise the offence of marital rape even it has fulfilled all the constituents of rape, it is a sham on the laws of the country. “EVERY RAPE IS A RAPE”.
[1] Mukesh Kumar v. State [NCT DELHI] AIR 2017 SC 2161
[2] Section 63 of Bharatiya Nyaya Sanhita, 2023
[3] Rupali Sharma, Unveiling The Silent Suffering: A Comprehensive Exploration Of Marital Rape In Indian Society, Migration Letters Volume: 20, Migration Letters
[4] https://nujslawreview.org/wp-content/uploads/2018/01/11-%E2%80%93-1-%E2%80%93-Raveena-and-Pradyumna.pdf [Last visited:31/05/2025, 15:07 pm]
[5] Independent Thought v. Union of India AIR 2017 SC 4904
[6] Bhupinder Singh v. Union Territory of Chandigarh, (2008) SCC 531
[7] https://articles.manupatra.com/article-details/Marital-Rape-and-Law[ last visited on 12:26am,17/04/2025
[8] Budhan v. State of Bihar, AIR (1955) SC 191
[9] Suchita Srivastava vs. Chandigarh Administration AIR [2008] 14 SCR 989
[10]K.S. Puttaswamy J. (Retd.) vs. UOI, AIR 2017 SC 4161
[11] Kharak Singh v. State of Uttar Pradesh AIR 1963 SC 1295
[12]Madhukar Narayana Mandikar v. State of Maharashtra AIR 1991 SC 207
[13] Bodhisattwa Gautam vs Ms. Subhra Chakraborty, 1996 AIR 922
[14] Id. 7
[15] Id. 7
[16] https://www.drishtiias.com/daily-updates/daily-news-analysis/marital-rape-in-india-2 [ last visited on 12:36am, 17/04/2025
