Marital rape is defined as an unwanted intercourse by a man with his wife obtained by force, threat of force or, physical violence or, when she is unable to give consent.
Section 375 of the Indian Penal Code, 1860 defines rape with a woman on the bases of six conditions:
- Against her will
- Without her consent
- With her consent obtained in fear of death or hurt
- With her consent when the man knows that he is not her husband and she gave her consent believing him as another person to whom she is lawfully married
- With her consent when she is of unsound mind or intoxication or, she is unable to understand the nature or consequences of that act
- With or without consent when she is under 16 years of age.
Exception: Sex by a man with his own wife, the wife not being under 15 years of age, is not rape.
Thus, marital rape in India has not been criminalised. The ‘exception’ under section 375 of IPC could be traced to the statements by Sir Mathew Hale, the Chief Justice of England in the 17th century. According to him, ‘the husband cannot be guilty of a rape, committed by himself upon his lawful wife, for their mutual matrimonial consent and contract, the wife had given herself in kind unto the husband, whom she cannot retract.’ Thus, married women were never the subject of rape laws. In fact, laws bestowed absolute immunity on the husband in respect of his wife solely on the basis of marital relation.
Marital rape as an offence
Marital rape is an offence in 18 American states, 3 Australian states, Canada, Denmark, France, Israel, Nepal, New Zealand, Norway, Sweden and Thailand. Article 2 of the Declaration on the Elimination of Violence against Women (adopted by the UN General Assembly Resolution 48/104 on 20 December 1993) includes marital rape explicitly in the definition of violence against women. Debates over criminalizing marital rape originated in the politico-legal system in the United States in 1970s by women activists. In India also, the issue has been long debated. In fact, in India, women can protect her Right to Life and Liberty, but not her body within her marriage. Women so far have had recourse only to Section 498-A of IPC dealing with cruelty shown to them by husbands or the family.
Recently, the Union Minister for Women and Child Development has made assertion on the issue of criminalizing, marital rape. According to the Minister, the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat marriage as a sacrament etc.
This view of the Indian Minister does not have a rational basis as not criminalizing marital rape would reflect certain aspects, such as:
- Patriarchial argument that since marriage is sacrament marital rape is inconceivable.
- Poverty, illiteracy and regressive social mores cannot be the valid reasons for not framing progressive laws.
- Even though marriage is a sacrament it does not entitle one to commit sexual violence.
- Marriage may sanctify sex between two individuals, it does not sanctify rape.
The Justice Verma Commission Report on Criminal Law amendment based on which the Criminal Law (Amendment) Act, 2013 was passed, had pitched strongly in favour of criminalizing marital rape. The Commission had recommended that the Exception 2 in Section 375 of IPC should be abolished. However, the Criminal Law (Amendment) Act, 2013 did not speak on this issue. The Commission said that marital rape or other relationship should not be a defence against the crimes of rape or sexual violence.
Supreme Court on sex between man and minor wife
The Supreme Court on 11 October 2017 ruled that sex between man and minor wife would be considered rape. The Court has held that the exception carved out under Section 375 exempting marital rape for minors is artificial and contrary of Article 21 (right to life) of the Constitution of India. The decision of the Court is in line with the Protection of Children from Sexual Offences (POCSO) Act, 2012 and also in the spirit of other pro-child legislation and the human rights of a married girl child. The most striking feature of the ruling is that the earlier age of 15 years in the Exception to Section 375 has been modified to 18 years. Thus, the Exception now will read ”sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape.”