Marital Rape: An Indignity To Women

Context: The marital rape exception is antithetical to women’s dignity, equality and autonomy.

Legal exceptions regarding marital rape

• The law exempts husbands from being tried or punished for raping their wives by creating the legal fiction that all sex within marriage is consensual.
• Section 375, Indian Penal Code (IPC): The definition of rape, sexual intercourse by a man with his own wife (provided she is over the age of 18), would not amount to the offence of rape.

Issues associated with exceptions to marital 

• Inconsistent legal provisions: Law protects penile-vaginal penetrative intercourse from criminal prosecution when performed by a husband with his wife, even when done forcibly or without consent.
  • While other sexual offences can be charged: E.g. Husband may be tried for offences such as sexual harassment, molestation, voyeurism, and forcible disrobing in the same way as any other man.
  • A husband separated from his wife (though not divorced) may even be tried for rape (Section 376B).
• Against the constitutional goals of individual autonomy, dignity and gender equality: Enshrined in fundamental rights such as Article 21 (the right to life) and Article 14 (the right to equality).
• Based on Patriarchal beliefs: That upon marriage, a wife’s right to personal and sexual autonomy, bodily integrity and human dignity are surrendered. Her husband is her sexual master, and his right to rape her is legally protected.
  • In Joseph Shine v. Union of India (2018), the SC held that the offence of adultery was unconstitutional because it was founded on the principle that a woman is her husband’s property after marriage.
• Rigid institutionalisation of marriage: Government defended marital rape de-criminalisation by holding that recognising marital rape as a criminal offence would ‘destroy the institution of marriage.
  • Supreme Court in Thought v. Union of India (2017): Rejecting this claim, Supreme Court observed, “Marriage is not institutional but personal – nothing can destroy the ‘institution’ of marriage except a statute that makes marriage illegal and punishable.”
  • While the current law runs under the belief that consent may simply be assumed from a woman’s clothes, her sexual history, or, indeed, her relationship status, a marriage does not signify perpetual sexual consent.

Conclusion: Exceptions to Section 375 of the IPC is antithetical to the liberal and progressive values of our Constitution and violative of India’s international obligations under instruments such as the Convention on the Elimination of All Forms of Discrimination against Women.