In Karnataka in 2022, a landmark decision unfolded as Justice M. Nagaprasanna declared the marital rape exception in India’s legal system to be regressive and violative of the right to equality. The case centered around a woman who accused her husband, Hrishikesh Sahoo,of rape and other offenses—a bold move that challenged long-held legal norms and ignited a nationwide debate on the sanctity of marriage versus individual rights.
Marital rape refers to non-consensual sexual acts committed by a spouse against their partner within the bounds of marriage. Unlike other forms of sexual violence, marital rape occurs in a relationship traditionally perceived as intimate and consensual by default. This distinction has historically led to legal systems worldwide grappling with whether to criminalize such acts, often balancing the preservation of marital unity against the protection
of individual autonomy and bodily integrity. The crux of the debate in India hinges on whether marital rape should be criminalized in the same way as other forms of rape. This question sits at the intersection of legal recognitio, human rights, and societal norms. On one side, proponents argue that failing to criminalize
marital rape denies married women the same legal protections afforded to others, undermining their autonomy and equality before the law. On the other, the government contends that labeling such acts as “rape” within marriage is excessively harsh and could disrupt the institution of marriage, suggesting that existing laws suffice to address violations of consent between spouses. We explore the multifaceted arguments surrounding the criminalization of marital rape in India, delving into legal precedents, constitutional rights, and the evolving societal understanding of marriage and personal liberty.
In India, the legal framework currently does not recognize marital rape as a criminal offense. Section 63 of the Bharatiya Nyaya Sanhita (BNS), which defines rape, includes an exception clause stating that sexual intercourse by a man with his own wife, provided she is over 18 years of age, is not rape. Under the IPC, the exception stated that sexual intercourse or sexual acts by a man with his own wife are not considered rape if the wife is
not under 15 years of age. Under the BNS, any sexual activity by a man with his wife who is
under eighteen years old is considered rape, thereby aligning the marital age of consent with
the general legal age of consent. The change reflects a shift towards greater protection of
1 Challenge to the Marital Rape Exception – Supreme Court Observer
minors within marriage, acknowledging that consent cannot be legally given by individuals
under eighteen, even within the context of marriage.
This “marital rape exception” presumes automatic consent within marriage, effectively
denying married women the legal recourse available to others in cases of non-consensual
sex.
Indian courts have historically viewed sexual relations within marriage as a marital duty.
Refusal to engage in sexual activity without a “valid reason” has often been construed as
“mental cruelty,” providing grounds for divorce under family laws. This perspective reinforces
the notion that consent is inherent in marriage, undermining a woman’s autonomy over her
own body.
Attempts to challenge this legal stance have faced resistance. The Justice Verma
Committee in 2013 recommended criminalizing marital rape, but these suggestions were not
incorporated into law. 2 In 2022, the Delhi High Court delivered a split verdict on the
constitutionality of the marital rape exception, highlighting the ongoing legal debate. The
Supreme Court of India is currently hearing petitions on this matter, signaling a potential shift
in the legal approach to marital rape.
International Landscape:
Globally, there has been a significant movement towards recognizing marital rape as a
crime. Many countries have abolished legal exceptions that previously protected spouses
from rape charges, acknowledging that consent cannot be presumed within marriage.
Nations like the United Kingdom and South Africa have criminalized marital rape, affirming
that all individuals have the right to bodily autonomy regardless of their marital status. 3
However, challenges persist internationally. In some jurisdictions where marital rape is
illegal, courts have been observed to impose lighter sentences for marital rape compared to
other rape cases, reflecting lingering societal biases about marriage and consent.
Enforcement and societal attitudes continue to impact the effectiveness of these laws.
2 Justice Verma Committee Report Summary
3 Human Rights of Women and the Phenomenon of Marital Rape in Ethiopia
Arguments For Criminalization of Marital Rape
Ethical Perspective:
From an ethical standpoint, criminalizing marital rape is essential for recognizing and
respecting individual autonomy and human rights. Marriage should not be construed as a
blanket consent to sexual activity; rather, it should be viewed as a partnership based on
mutual respect and consent. The notion that a spouse can be subjected to sexual violence
undermines the dignity and agency of individuals, particularly women, who have historically
been marginalized within patriarchal structures. By criminalizing marital rape, the law affirms
that all individuals, regardless of marital status, have the right to control their own bodies and
make decisions about their sexual relationships.
Social Perspective:
Socially, the criminalization of marital rape can catalyze a significant shift in societal attitudes
towards marriage and consent. It challenges the entrenched belief that marriage grants men
entitlement to sexual access, thereby promoting gender equality and respect for personal
autonomy. Legal recognition of marital rape can empower victims to speak out and seek
justice, reducing the stigma associated with reporting such incidents. This shift can lead to
increased awareness and education about consent, fostering a culture that values mutual
respect and equality in relationships.
Moreover, the existence of laws against marital rape can help dismantle harmful stereotypes
and cultural norms that perpetuate violence against women. By framing marital rape as a
crime, society can begin to view it as a serious violation of rights rather than a private matter,
encouraging community support for victims and accountability for offenders.
Arguments Against Criminalization of Marital Rape
Cultural Considerations:
One of the primary arguments against the criminalization of marital rape is the deeply
ingrained cultural belief that marriage is a sacred institution. Many proponents of this view
argue that the concept of marital rape contradicts traditional values that emphasize the
sanctity of marriage and the roles of spouses within it. In many societies, including India,
marriage is often seen as a union that entails certain obligations, including sexual relations.
Critics argue that imposing Western notions of marital rape may not be suitable for Indian
society, where cultural norms and values differ significantly. They contend that such
legislation could disrupt familial structures and societal harmony, as it challenges long-
standing beliefs about marital roles and responsibilities. The affidavit filed by the Central
Government also has been on similar lines.
Legal Considerations:
From a legal perspective, opponents argue that criminalizing marital rape could lead to
misuse of the law, potentially resulting in false accusations. Concerns have been raised that
such laws might empower one gender over another, leading to a situation where men could
be unjustly accused and harassed under the guise of legal protection. The existing legal
framework already provides remedies for domestic violence and abuse, such as Section
498A of the Indian Penal Code and the Protection of Women from Domestic Violence Act,
2005. It is argued that these laws are sufficient to address issues of violence within marriage
without the need for additional criminalization of marital rape.
Practical Considerations:
Practically, the enforcement of laws against marital rape poses significant challenges. The
difficulties in proving cases of marital rape, given the private nature of marital relationships
and the lack of physical evidence in many instances, cannot be ignored. This can lead to a
high rate of acquittals and may discourage victims from coming forward due to fear of not
being believed or facing societal backlash. Additionally, there are concerns that criminalizing
marital rape could place undue stress on the institution of marriage, leading to increased
family disputes and potential breakdowns in relationships.
Role of the State and Legal Duties
The constitutional role of the state in ensuring the protection of its citizens encompasses not
only public but also private spaces, such as the marital home. Article 21 of the Indian
Constitution guarantees the right to life and personal liberty, which has been expansively
interpreted by the Supreme Court to include the right to live with human dignity and to be
free from all forms of violence, including those occurring within private spaces like marriage.
This interpretation was further reinforced in the landmark case of Justice K.S. Puttaswamy
(Retd.) vs Union of India (2017), 4 where the right to privacy was declared a fundamental right
under Article 21. The Court noted that privacy is not lost or surrendered merely because the
4 (2017) 10 SCC 1; 2017 SCC OnLine SC 996
individual is in a domestic setting. This ruling underscores the state’s duty to protect
personal liberties irrespective of the private or public nature of the space.
Furthermore, in Independent Thought vs Union of India (2017) 5 , the Supreme Court’s
decision to criminalize sexual intercourse with a minor wife can be viewed as an
acknowledgment that marital rape violates the rights guaranteed under Article 21. By
ensuring that laws evolve to protect individuals against sexual crimes within marriage, the
judiciary has highlighted the state’s constitutional duty to enforce laws that uphold the dignity
and safety of all individuals, emphasizing that the sanctity of marriage cannot be a shield for
marital rape.
Thus, the state’s constitutional duties are not restricted to public safety but extend deeply
into the realms of private life, ensuring that personal safety and dignity are maintained in all
settings, including within the marital context. This progressive interpretation by the judiciary
acts as a directive for the state to create and enforce laws that protect against all forms of
violence, thereby fulfilling its constitutional responsibilities.
In this case, the Supreme Court decriminalised adultery, emphasizing that a law that treats a
husband as the master of his wife is unconstitutional. This judgment, while not directly
addressing marital rape, has implications for the autonomy and agency of a married woman,
reinforcing the notion that consent and personal liberty are paramount, even within the
bounds of marriage.
3. The petition in a recent case (RIT Foundation vs Union of India) before the Delhi High
Court challenged the exemption of marital rape under Section 375 of the IPC. The
petitioners argued that this exemption violates the Constitution of India’s guarantees of
equality, non-discrimination, and the right to life and personal liberty under Article 21. The
Delhi High Court delivered a split verdict, and the issue of marital rape is now being
considered by the Supreme Court of India. The decision of the Supreme Court is highly
anticipated as it has the potential to significantly reshape the legal landscape regarding
marital rape in India. The government of India has officially opposed the criminalisation of
marital rape in India before the Supreme Court.
Conclusion
The discussion about making marital rape illegal in India is crucial, highlighting a conflict
between old customs and the advancement of individual rights. The current law, which does
not consider marital rape a crime, goes against the principles of equality and freedom
guaranteed by the Constitution, and fails to protect the basic human right of controlling one’s
own body. Both ethical reasons and examples from other countries support making marital
rape illegal, stressing that marriage does not automatically imply consent.
While there are cultural and practical difficulties in changing the law, these issues must be
balanced against the government’s duty to protect its people in both public and private
settings. Key court decisions have gradually supported the view that personal freedoms
extend into marriage, indicating a shift towards treating marriage as a partnership based on
mutual consent and respect.
Making marital rape a crime is not just about changing a law; it’s about transforming societal
attitudes. It emphasizes that marriage should be an equal partnership, where both people
agree on their physical relationship. Moving forward with this change is vital for promoting
gender equality, respecting personal dignity, and upholding the constitutional values at the
heart of Indian democracy. The choices made in addressing this issue will greatly influence
justice and the protection of rights for everyone in the country.
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