Tahir Zaman & Khan Mohammad Obaida
Yatra naryastru pujyante ramante tatra devata, yatraitaastu na pujyante sarvaastatrafalaah kriyaah is an infamous sloka in Manusmriti which means where Women are honoured, divinity blossoms there, and where women are dishonoured, all action, no matter how noble, remain unfruitful.
Marital rape or spousal rape refers to forceable sexual intercourse by a husband with his wife. This could be done either by use of force, intimidation, or against the consent of the legally wedded wife. Marital rape is categorized as domestic violence and sexual abuse under the Protection of Women from Domestic Violence Act, 2005, which may also lead to divorce on the ground of cruelty.
According to the National Family Health Survey between 2019 and 2021, 32% of women experienced physical, sexual, or emotional violence by their husbands. NCRB data shows that India records 51 cases of crime against women per hour.
The Supreme Court in the landmark judgement of Independent Thought vs Union of India had increased the marital consent from age 15 to 18. The observation of the court was that marital rape of a minor is a violation of articles 14, 15, and 21 of the Indian Constitution. Though this progress is limited, marital rape does not apply if the wife is over eighteen years of age; the battle is still going in Supreme court for complete criminalization.
The Bharatiya Nyaya Sanhita (BNS) retains the marital rape exception, similar to the Indian Penal Code (IPC), meaning forced sexual intercourse by a husband with his wife (over eighteen years of age) is not considered rape under Section 63 of the BNS.
The concept of marital rape has been given under exception 2 of section 63 (Bhartiya Nyaya Sanhita, 2023)-
Exception.2––Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.
The central government had introduced a new criminal law, i.e., Bhartiya Nyaya Sanhita, 2023, by replacing British law, i.e., Indian Penal Code, 1860. The Home Minister said the laws made by the British were full of signs of slavery and aimed at punishing those opposed to their rule. Unfortunately, the new code is also carrying the legacy of slavery; as marital rape was not recognized by Britishers, the new India is also on the same path by partially recognizing marital rape.
For instance, if a man unknowingly rapes his own wife in an assault, he cannot be prosecuted because of Exception 2. This shows how the law protects perpetrators simply due to the marital relationship, rather than focusing on consent.”
Marital rape is not only discriminatory & violative of article 14,15 and 21 of the Indian constitution but also violative of Universal Declaration of Human rights(UDHR), Committee on Elimination of Discrimination Against Women(CEDAW) and International Covenant on Civil and Political Rights(ICCPR).
The ghost of Lord Hale
The first legal document relating to marital rape came into being in 1736. Chief Justice Mathew Hale said, “The husband can’t be guilty of a rape committed himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract”
The above observation of the CJ Hale came to be known as the Hale principle, which became the basis for the exception of marital rape in British law. As India was a colony of the British, they had implemented the same principles in the Indian Penal Code. In 1860, the IPC came into force, which limited the marital rape exception to women only above ten years of age.
The ghost of Lord Hale is backed by Implied consent and contract theory. This view holds that marriage is a contract between a husband and wife, in which the wife cedes all of her rights to the husband at the time of marriage, and that consent is perpetual and unrevocable. In one word, retraction of consent is retraction from marriage.
Lord Hale’s dictum continues to exist in Indian law. The Bhartiya Nyaya Sanhita (BNS) retains this principle, stating that a husband cannot be prosecuted for raping his wife if she is above eighteen years of age. This legal position grants immunity, denying wives protection against sexual violence within marriage. Despite legal reforms in India, marital rape remains decriminalized, reinforcing outdated notions of consent and marriage, leaving many women without legal recourse against spousal sexual assault.
The final common law rationale for the marital rape exemption was that doctrine of coverture i.e. after marriage the legal identity of women merged into the existence of her husband. In 1765, Blackstone stated “by marriage, the husband and wife are one person in law; that is, the very being or legal existence of the women is suspended during the marriage or at least is incorporated and consolidated into that of the husband; under whose wing, protection and cover, she performs everything”.
According to this doctrine, man shall never be prosecuted for rape against his wife, as after marriage both became, one person and one can’t rape himself.
The Doctrine of coverture was never explicitly applied in India, but some of its provisions existed, which, with the end of the 19th and 20th centuries, became outdated, and the laws were passed that recognised women’s separate legal personalities in India.
Historical background
The first law relating to marital rape was introduced in the Indian Penal Code, 1860, which limits the marital rape exception to women only above ten years of age. The primary objective of insertion of such provision was not to recognize marital rape but to prevent the child marriage in India. Exception 2 was inserted under British rule, which was a regime when women were considered unequal to men. They didn’t possess the rights and entitlements which make up equality between human beings. Women were seen as chattel and did not having autonomy, dignity, liberty and emotional feelings and most importantly, sexual desire.
The second wave of feminism that began in the 1940s, marriage and sexuality in the colonies were viewed differently, which altered the dynamics of Western civilisation and resulted in the amendment limiting the marital exception to women above the age of fifteen.
It was Nirbhaya rape case, in 2012, the Justice Verma committeewas tasked with proposing amendments to India’s rape law. The committee recommended that the exception to marital rape be removed, and the committee also agreed with the European Commission on Human Rights that a rapist is a rapist regardless of their relationship with the victim. Despite a recommendation by the committee, the Parliament refuses to recognise marital rape as an offence by saying that it will destabilise the institution of marriage apart from being an easy tool for harassing the husbands.
In India, marital rape existed de facto but not de jure. It is only a civil offence under the Protection of Women from Domestic Violence Act, 2005. It is an inhuman act that is encouraged by the social and religious institutions, state, and judiciary by acknowledging marital rape as a physical abuse rather than sexual abuse.
The patriarchal society believes that women are the subject and husband are the rulers, rape is viewed as justified by the husband and more over some husbands even relate their relationship with animals and justifies their heinous act by arguing that: We’re supposed to be the aggressor, you know, in the animal world, the male chases female, No difference.
Marital rape needs to be read with section 9 and 13(1) (i) of the Hindu Marriage Act, 1955. where the court (here, here, and here) held that cohabitation is an essential part of marriage and refusal of the same by the wife amounts to mental cruelty.
The same principle was followed by the Delhi High Court in Harvinder Kaur vs Harmander Singh, that the constitution of India could not intervene in household matters as it would destroy the institution of marriage. In the privacy of the home and married life, neither Article 21 nor Article 14 of the Indian Constitution has any role.
According to the United Nation, 30 countries do not recognise marital rape as a rape; among them, one is India. The central government had submitted affidavit in the Supreme court, where they argued that marital rape can’t be criminalize, because of these reasons-
First, at the time of marriage, women give irrevocable consent to sexual intercourse with their husbands. Second, legal recognition to marital rape will sabotage the institution of marriage. Third, women will weaponise this law against their husbands. And fourth, alternative legal remedies already exist.
The affidavit cited Article 14 of the Constitution, the right to equality, to argue that sexual violations in marital and non-marital spaces are two different “situations” and their treatment in law “as different and unequal” is entirely in sync with the mandate of Article 14.
The above arguments are patriarchal, which believe that women are unequal and chattel of the husband. It is rightly pointed out by the advocates that the only reason for which marital rape is not criminalised is women will misuse it. It’s an irony of the Indian Parliament, because every law is subject to misuse if not governed with a hard hand.
The issue of misuse of the law must be separated from the reality and prevalence of marital rape against women, which highlights the need for its criminalisation. Advocate Indira Jaising has written in the context of domestic violence: “When the disadvantaged use the law after centuries of exclusion from the legal system, they are charged with ‘misusing’ the law, as there was never meant to be a law for them at all.”
The hon’ble Supreme Court in the case of Bodhisattawa Gautam vs Subra Charakrborty (1996) 1 SCC 490 held that- Rape is a crime against basic human rights and a violation of the victim’s most cherished of fundamental rights, namely the right to life enshrined under article 21 of the Indian constitution.
Subsequently, Justice Madan Lokur in Independent Thought (a case concerning minor wives) stated that the wife “cannot be treated as a commodity having no say over her body”, and that she had the right to deny sexual intercourse to her husband. Again, Justice DY Chandrachud in J.K.S Puttaswamy vs Union of India AIR 2018 SC (SUPP) held that “privacy must not be utilised as a cover to conceal and assert patriarchal mindsets.”
The Apex court, in Young Lawyers Association vs Union of India, AIR 2018 SC 243, recognised that India’s legal system must evolve to rectify historical injustices and uphold fundamental rights.
The solemnization, sexual intercourse is a mutual right between the husband and wife, not solely of the husband alone. Solemnization does not legalise coercion, violence, and degrading and painful acts, either to men or women. All wicked and evil acts, inside or outside of marriage, remain forbidden. The principle of “Laa dharara wa laa dhiraar” or “shall not harm others and be harmed by others” must be held firmly in any matter, especially when it involves the relationship between husband and wife.
Rights and remedies available to a husband
The testimony of the victim must not be the only evidence, there must be corroboration of other evidence also, which includes previous consent, relationship history and medical report, etc. For the legal system to hold someone guilty, the commission of that offence has to be proved beyond a reasonable doubt.
The accused has the right to legal representation and can present evidence countering the complaint. Even if a chargesheet is filed, the accused has the right to file an application for the discharge of such a chargesheet and stop the court from framing charges. Additionally, they can approach the sessions court or use Section 528 BNSS to quash the FIR with sufficient evidence.
One of the biggest vacuums created by the Bhartiya Nyaya Sanhita, 2023, is the omission of Section 377, i.e., the unnatural offence. In the case of Navtej Singh Johar vs Union of India, the Supreme Court, while decriminalizing home sexuality, held ‘Section 377 that deemed consensual unnatural sex as “irrational, indefensible and manifestly arbitrary’.
Patriarchal notions
The legal system’s reluctance to criminalize marital rape stems from outdated patriarchal notions. While reforms like the Navtej Singh Johar judgment have advanced gender rights, the omission of Section 377 and continued marital rape immunity show that the fight for justice is far from over.
The omission of Section 377 in Bhartiya Nyaya Sanhita, 2023, closes the avenue available for men, women, and transgender individuals against sexual violence in the absence of a law which addresses it.
There is no bar in law to the same set of acts constituting separate offences. Sections 375 (BNS-63) and 377 constitute two separate and distinct offences. The framing of charges under sections 375 and 377 is not a violation of Article 20(2) of the Indian Constitution.
The Chhatisgarh High court had ruled that unnatural sexual acts can still be prosecuted under Section 377, even if Section 375 (rape law) offers immunity for husbands. In the case of Dilip Pandey vs State of Chhatisgarh, the court held that while the charges under section 376 were liable to be dismissed in light of the second exception, the charges under section 377 could not be dismissed. It held Although, except insertion of finger and radish in her private part, what other unnatural physical relation he made with the complainant, she has not stated, which is a matter of evidence, but, only on that ground, charge framed under Section 377 of the I.P.C. cannot be said to be erroneous at the stage of framing of charge, especially, in terms of Section 377 of the I.P.C. where dominant intention of the offender is to derive unnatural sexual satisfaction, repeatedly insert any object in the sex organ of the victim and consequently derives sexual pleasure, such act would constitute as a carnal intercourse against the order of nature and such act would attract the ingredient of offence under Section 377 of the I.P.C.”
Marital rape is one of the most debatable issues in India, which is advocated by feminists, who argue that marital rape is one of the most inhuman and barbaric acts done by a husband against his wife. Even though 30 countries—including India—do not consider marital rape as a crime, UN and Human Rights Watch vehemently denounce the heinous act and urge its members to criminalize.
Marriage is a contract between husband and wife to live together, but that right does not extend to outrage the modesty and harm one another. The central government, in its affidavit to the Supreme Court, has submitted that the husband doesn’t have a fundamental right to outrage the modesty of his wife. It is to be taken into consideration that women do not leave their dignity, their right to humanity, and their emotions while leaving their homes to leave with their husbands.
In Young Lawyers Association vs Union of India, the Supreme Court discuss “Reading Ambedkar compels us to look at the other side of independence. Besides the struggle for independence from British rule, there was another struggle going on since centuries and which still continues. That struggle has been for social emancipation. It has been the struggle for the replacement of the unequal social order, it has been a fight for undoing historical injustices and for righting fundamental wrongs with fundamental rights. The constitution of India is the end product of both these struggles.”
The battle for gender justice is not merely about tradition but about fundamental rights. With the Supreme Court reviewing the constitutionality of marital rape, it is time for India to recognize that marriage is not a license for violence. The law must stand on the side of dignity, equality, and justice.
Advocate Tahir Zaman practices in the High Court in Lucknow & Khan Mohammad Obaida is a student of law at Aligarh Muslim University
