By Aashna Gupta
“They are all innocent until proven guilty. But not me. I am a liar until I am proven honest”.
-Louise O’Neill (n.d.)
India is a patriarchal society. The institution of marriage is considered a sacrament and it is an integral part of our social institutions. However, legislators have successfully fled from their responsibilities in relation to the protection of married women above eighteen years of age from their own spouses. Regressive culture of our society is evident from cases where marital rape is considered as an individual case, a personal cause and not a public cause.
Through this article, I will deal with the Indian notions around women and the crimes committed against them, thereby leading to the concept of marital rape. I will analyze the reasons behind it and the effects it produces on the physical and psychological health of a woman. Furthermore, I will also delve into the role played and the steps taken by the society, the legislators and the judiciary. In conclusion, I will discuss whether it is the right time for an amendment to the legislation and for the criminalisation of marital rape.
Even though Indian Penal Code 1860 (IPC) considers offences, such as cruelty by husband or relatives, assault and sexual harassment etc., committed against a woman’s body. When the sexual act is committed within four walls, even against the wishes of the wife, it is considered a moment of pleasure of the husband and a duty of the wife. Women still have a difficult time protecting their bodily integrity, whether against domestic violence or against rape outside or inside the home. Rape is an aggravated act of sexual violence committed against the will of a woman. This is what is referred to as marital rape: commission of sexual acts between two individuals without the consent of one (woman).
Marriage is considered a sacred bond that binds two individuals as one soul. However, orthodox thinking sees marriage as a union between two individuals just for the procreation of children. The essence of this notion is deep-rooted in the traditional Indian society. Women are treated as machinery for bringing their prodigy to the world; they are seen as an object of sexual gratification to their husbands with no free will over their sexuality.
What if the woman does not want to play along? Oh! Does she have a choice?
The result of the National Health and Family Health Survey 2015-16 shows that 13% of married women have been pushed, shaken and have had things thrown at them. Around 11% of women said that their husbands have twisted their arms or pulled their hair. Another 8-9% said that they have been punched with fists or objects that could hurt them or they have been kicked, dragged and beaten up. More so, 2% said that they have been choked or burnt and around 1% reported that they have been threatened or attacked with guns, knives and other weapons.
Sexual violence of course worsens progressively if the husband is an alcoholic – 71% of married women experienced physical or sexual violence when their husbands were drunk. The percentage of married women who have experienced what would be considered rape or sexual violence from their husband is up to 13%. Sadly, this has been the situation even when the Hon’ble Supreme Court of India (“SC”) had held in Shyam Narain versus State (NCT of Delhi) that the basic expectation in a civilised society is that the reputation of a woman would be respected. It is a matter of disgrace when a member of society feels that they can create a hollow in the honour of a woman. Sexual assault against women should shake the appearance of well-being and stability in a society.
Women’s bodily autonomy in marriage
During the British period in India, in the early 19th century, many social reformers laid foundations towards the empowerment of women. The movement took a leap in the past fifty years with a series of legislations including but not limited to Dowry Prohibition Act 1961, National Commission for Women Act 1990, The Protection Of Women From Domestic Violence Act 2005, and The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013. These enactments were passed to safeguard women’s rights and legal entitlements. It was further reinforced when the government of India declared 2001 as the year of women’s empowerment.
However, women are still deprived of their bodily autonomy in many parts of India. They are forced to have non-consensual sex with their husbands, under the use of coercion, verbal threats or physical violence by the husbands. Whereas non-consensual and forced sexual intercourse with a woman outside the marital relationship is punishable as rape under section 376 IPC, forced sex committed to a married woman above 18 years of age inside her home has not been recognised as an offence by policy enforcers. Is it the legislators’ fault? Legislators represent the will of people and the masses consider it as a normal way of life. Common law presumed that when women are married, they give their irrevocable consent to sexual intercourse with their husbands. Therefore, the husbands could ask for sex according to their urge.
Sir Matthew Hale, Chief Justice of England wrote: “the husband cannot be guilty of a rape committed by himself on his lawful wife for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract.” The immunity given to the husband has now been withdrawn. With the recognition of the institution of marriage as the partnership of equals, a wife is not considered a chattel of her husband anymore. House of Lords in the case of R versus R overturned marital exception to rape in light of changing social, economic and cultural developments. Even though Hon’ble SC in the landmark judgment of Joseph Shine versus Union of India has struck down the view that treats women as chattel, in practice, India is still to a large extent gripped in its age-old notions.
Reasons behind marital rape
Though there have been a few reportable cases of rape, the percentage is very low when it comes to marital rape. There are many reasons, such as family loyalty or fear of the husband, financial dependence on the husband, lack of support from family members, societal pressure and safeguarding the future of their children. Women agree to live with a husband who abuses them rather than living independently. The condition of women being autonomous is still not much accepted in India. This makes the idea of a single woman’s life hard to be accepted in India.
According to Hindu tradition, when a woman marries, she is duty-bound to serve her husband according to his wishes and is considered as his property. While some women stay quiet due to social and economic retrains, many are groomed to obey their spouse and fulfil all their wishes. Any dissent is unacceptable. The irony is that few women are aware of this concept of marital rape. They are so accustomed that having sex in marriage seems like a necessary corollary. Even if it is coerced, they have accepted it. As a result, women have less personal freedom, worse psychological and emotional wellbeing and lack of self-esteem.
The question on the autonomy of a woman over her body can also be viewed from the lens of section 9 of the Hindu Marriage Act 1955. According to this section either the husband or wife can move to the court for restitution of conjugal rights and the court may pass the decree of restitution accordingly. Though this section may seem like gender-neutral, it is in clear violation of the women’s sexual privacy rights. Not only cohabitation is forced upon a woman by giving absolute control over her body to another, but also puts a woman in a vulnerable position in this union of equals. This legislation suffers from stereotypical morality and conceptions of sexual roles. Instead of feeling safe and comfortable within her home, she has to see the perpetrator each day and live with him. This only further exemplifies the patriarchal setup.
Another reason for marital rape is the lack of sex awareness and sex education in India. There is hardly any constructive discussion in families or schools. Teenagers are left to themselves to discover their sexuality and are unaware of the sexual developments the other sex goes through. Its effects can be seen after marriage when a dominated male imposes himself upon a submissive woman without understanding her mental state and the pain that she goes through. Around 19% of ever married women have reported the controlling behavior of their husband in the marital relationship, ranging from being jealous if she talks to other male friends to accusing her of being unfaithful.
Legislators too have happily shied away from their responsibilities by arguing that such relations are of private nature. It is difficult to prove the non-existence of consent and would lead to false accusations and harassment of husbands. Moreover, since the woman affected has the option to seek divorce, it is not a valid defence for legislators to not recognise such a grave offence. The constitutional scheme of India provides protection to even a single individual in case his rights are violated but does not fully follow Bentham’s utilitarian principle of the greatest good of the greatest number. Principle of utilitarianism considers an act as just if it results in maximum happiness of the maximum number of people in a society. This view is contrary to non-utilitarianists who view an act to be just if it also benefits the least advantaged persons in a society.
Having said that, is it fair to let women suffer because of fear of a few false cases? Isn’t the judiciary there to remove such false complaints? No law should result in perpetuating the oppression of women. It no longer remains just an internal affair of the family. The view that recognising marital rape leads to ‘excessive interference with marital relationship’ and has the potential of destroying the institution of marriage points to the fact that women want to end the sexual violence faced repeatedly in their marriage. Marriage is personal and the institution cannot be destroyed except by a statute that makes marriage illegal and punishable. Gujarat High Court in NimeshBhai BharatBhai Desai versus State of Gujarat emphasised on the need to abandon the notion of implied consent in marriage. The court also further stated that protecting women’s autonomy within marital relationships are also crucial.
Legal developments protecting women’s rights in marriage
When marital rape is written in the (the Committee on Amendments to Criminal Law), rape is defined under section 375 IPC and made punishable under section 376 IPC. However, it does not cover the concept of marital rape of women aged above 18 years old. The Committee seeks to do away with this exception. It further highlighted the need for a law that does not differentiate between marital or other relationship on matters of consent to sexual activity, but on the ground of valid defence given against offences of rape or sexual violence. The marital or other intimate relationship should not be considered as a mitigating factor for inflicting lower punishments in heinous offences such as rape.
In the present legal regime, Hon’ble SC can be seen referring to various foreign terminologies, especially in cases where Indian jurisprudence has not yet developed. Marital rape is also one such case. Indian criminal law has majorly been influenced by British law, whose legislation is compatible with the European Commission on Human Rights. This makes an adequate ground for referring to their cases and jurisprudence. The European Commission for Human Rights inC.R. versus the United Kingdomalso endorsed the view that a rapist remains a rapist regardless of his relationship with the victim.” Similarly, marital rape is a crime in United States since 1993. The United States Supreme Court in Eisenstadt versus Baird observed that “a married couple is not an independent identity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup.” It was rightly mentioned by a bench of Justice, C Hari Shankar and former Acting Chief Justice, Gita Mittal of Delhi High Court upon hearing arguments on the criminalisation of marital rape that ‘marriage does not mean that the woman is all time ready, willing and consenting for sex. The man will have to prove that she was a consenting party.’
In the current legal system, husbands have the liberty and freedom to commit a violent act to their wife with lesser degree of punishment. For example, if the husband commits cruelty, physical or sexual violence against his wife then he can be held liable under section 498A IPC or under Domestic Violence Act 2005 respectively but not for rape. In other words, IPC permits unwilling, non-consensual or forced sexual intercourse between husband and wife. In cases of rape, passive submission has not been taken as consent, then why has it been so in cases of marriage? A married woman could “give consent” to have sexual intercourse under pressures or threats from the husband, for example, to injure the child or herself, to deprive her right to stay in the house or receive maintenance. This cannot be considered as giving valid consent.
Such distinction made is arbitrary and contrary to the ethos of Articles 14, 15(3) and 21 of the Indian Constitution. Article 14 of the Constitution of India states that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Although the Constitution guarantees equality to all, female victims who have been raped by their own husbands are discriminated against. Article 15(3) enables the state to make special provisions for the benefit of women and calls for affirmative action to their advantage. Intrusion in ones’ sexual privacy has been considered in the case of State of Maharashtra and another versus Madhukar Narayan Mardika whereby the Hon’ble SC has held that every woman is entitled to her sexual privacy and no person can violate it according to his whims. She is entitled to the protection of the law. In Justice K.S. Puttaswamy (Retd.) versus Union of India, the Hon’ble SC recognised the right to privacy as a fundamental right of all citizens and held that the right to privacy includes “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.”
In the Suchita Shrivastava versus Chandigarh Administration, the right to make a reproductive choice was equated with personal liberty under article 21 of the constitution. Women’s privacy, dignity and right to abstain from procreating needs to be respected. A woman can refuse to participate in sexual activity and no limitation can be imposed on her exercise of reproductive choice.
The Protection of Human Rights Act 1993 defines human rights as ‘the rights relating to life, liberty, equality and dignity of the individual guaranteed by the constitution or embodied in international covenants and enforceable by courts in India.’ Impliedly, if a woman is forced by her husband into sexual intercourse against her will, it would amount to the violation of her human rights as well as the Convention on the Elimination of all forms of Discrimination against Women to which India is a signatory. She cannot be treated as a commodity who has no say over her body, nor someone who has no right to deny sexual intercourse to her husband. In the State of Haryana versus Janak Singh, it was observed that ‘rape is an insult on womanhood and erodes her honour. It dwarfs her personality and reduces confidence level.’ Considering such traumatic impact that rape could have on its victims, would it be fair to say that degree of suffering is less when the same act is committed by her own husband?
Supreme Court, being the highest court in India, its judgments are binding on the lower courts. Law making power is primarily vested in the legislature and the judiciary implements them. However, the higher judiciary has the power to declare any law void if it goes against the spirit of the constitution. Further, in cases of gap, the Supreme Court does make law on that subject to fill the void till the legislature makes law on it. Hon’ble SC in its progressive judgment of Independent Thought versus Union of India held that the intercourse between a man and his wife is a rape, if she is below 18 years of age even if she had given her consent. Thus, the court increased the age from 15 years old to 18 years old as against what had been stated in the IPC. However, it refused to consider it as an observation for marital rape. There is a need to further relook the laws for women above 18 years of age by the legislators. A mere ‘lack of evidence’ issue cannot be a good ground to avoid the problem altogether. The Judiciary is there to eliminate the false cases and give justice to the aggrieved.
The world is like a stage where I am a mother,
a daughter, a sister and a wife.
But above all, I am a woman.
People worship me as a deity but only in idols.
I do live a happy and carefree life but for the eve teasing, stalking, cruelty, sexual harassment and rape.
Am I respected in my roles? Alas!
It is for you to think and decide.
Marital rape deprives a woman of independence over her body. The unwilling intercourse steals from her the power to make decisions connected to her body. Even though being in a sexual relationship is a personal choice, it no longer remains private when this choice is not exercised freely. A survey conducted by United Nations Population Fund in 2000, reveals a disgraceful fact: one third Indian men admitted having committed some form of sexual violence against their wives. This act is contrary to the ethos of the Preamble, Fundamental Rights and Fundamental Duties of the Indian Constitution which fosters equal and special rights for women. Even the United Nationsrecognise women’s liberty and her right to be free from male violence as a fundamental human right. Article 2(a) of the Convention on Elimination of Violence against Women also includes marital rape under the category of violence against women.
India is amongst the 36 countries where marital rape has not been recognised. Government seems to have turned a deaf ear in the name of culture or the private realm. Even the judiciary has conveniently given the responsibility to the legislature and has not played any active role on this issue.
Now is the right time to make amendments to this age-old definition of rape. W need to ask whose interest legislators are safeguarding in the name of protecting the status quo of marriage – the husbands raping, or the wives being raped?
Cover illustration: She Resists by Portia Roy.
 India. Ministry of Health and Family Welfare. 2017. National Family Health Survey (NFHS-4). Bombay: International Institute for Population Sciences: 568. http://rchiips.org.
 Ibid., 570.
 Ibid., 568. There are 13% married women who have faced sexual violence from their husbands. But since ‘marital rape’ is not recognized in India, it is not considered as rape as such. Had the same act been committed by a third person, it would have been considered rape.
 Shyam Narain v. State (NCT of Delhi). 2013. 7 SCC 77. (India).
 Ibid., 80.
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 Independent Thought v. Union of India. 2017. 10 SCC 800: 842. (India).
 Ibid., 843.
 Ibid., 844.
 R v. R. 1991. 3 WLR 767. (UK).
 Joseph Shine v. Union of India. 2019. 3 SCC 39. (India).
 Ibid., 120.
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 Health and Family Welfare. Health Survey: 567.
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 Pattnaik Samarjit et al., 2017. “The Viewpoint: The Law on Criminalisation of Marital Rape.” Bar and Bench (Blog), December 27, 2017. accessed April 01, 2021. http://www.barandbench.com.
 Independent Thought. 849
 Nimeshbhai Bharatbhai Desai v. State of Gujarat. 2018 SCC OnLine Guj 732. (India).
 Ibid.,Para 166.
 Justice J. S. Verma. 2013. Report of the Committee on Amendments to Criminal law. India: PRS Legislative Research: 117. accessed April 02, 2021. http://www.prsindia.org.
 Ibid., 114.
 Independent Thought. 843.
 The Wire Staff. 2018. “Marriage Doesn’t Imply a Woman Always Consents to Sex, Says Delhi High Court.” The Wire (New delhi),July 18, 2018. accessed April 01, 2021. http://www.thewire.in.
 State of Maharashtra and Another v. Madhukar Narayan Mardikar. 1991. 1 SCC 57. (India).
 Justice K.S. Puttaswamy (Retd.) v. Union of India. 2017. 10 SCC 1. (India) (Chandrachud concurring).
 Ibid., 28.
 Suchita Shrivastava v. Chandigarh administration, (2009) 9 SCC 1. (India).
 The Protection of Human Rights Act 1993. S. 2(d). No. 10 Acts of Parliament 1994. (India).
 State of Haryana v. Janak Singh. 2013. 9 SCC 431. (India).
 Krina. “Gap in Marital Rape”. 1531.
About the Author
Aashna Gupta, 27, is an LL.M (Business Law) student at National Law School of India University, Bengaluru. She is an undergraduate in law from Department of Laws, Panjab University, Chandigarh and in B.A. (Economic Hons.) from MCM DAV College for Women, Chandigarh, India.