Marriage is often perceived as a sacred institution build on mutual respect, trust and partnership. However, when consent is forcibly disregarded within the confines of marriage, it raises a critical question: “Is a women’s dignity confined within the walls of marriage? When ‘I do’ is twisted into ‘you must’, the crime of marital rape shatters the very foundation of equality and justice.”
This Article explore the legal status of marital Rape, its constitutional implications, judicial interpretation, and the urgent need for reforms. By delving into international legal framework, domestic status, and socio-legal challenges, this discussion aims to understand the necessity of criminalizing marital rape and upholding women’s fundamental rights.
International legal instruments, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and The Universal Declaration of human Rights (UDHR), recognizes Marital Rape as a form of gender based violence.
Despite these international legal precedents, In India also continues to shield perpetrators under the veil of marriage. In India Section 375 of Indian Penal code, 1860 and Section 63 of Bhartiya Nyaya Sanhita, 2023, defines Rape but not included any provision stating that forced sexual intercourse by husband upon his wife is considered as Rape unless she is below the age of 18 years.
A commonly cited rationale for preserving the marital rape exemption is that recognising marital rape as a criminal offence would ‘destroy the institution of marriage’. This was the government’s defence in Independent Thought v. Union of India (2017).
The Supreme Court,, refused to delve into the question of marital rape of adult women while examining an exception to Section 375 (rape) of the Indian Penal Code (IPC) which allows a man to force sex on his wife. Recent rulings by High Courts have been contradictory — one backed marital rape as a valid ground for divorce, while another granted anticipatory bail to a man while concluding that forcible sex is not an “illegal thing”.
The Supreme Court on Wednesday (October 23, 2024) deferred hearing a batch of petitions seeking the criminalisation of marital rape.
A bench headed by Chief Justice of India (CJI) D.Y. Chandrachud indicated that a decision in the case cannot be rendered before the Chief Justice’s retirement on November 10, 2024. Accordingly, the matter was directed to be listed before a new bench after four weeks.
The petitions seek to strike down the exceptions in Section 375 of the Indian Penal Code (IPC) and Section 63 of the Bharatiya Nyaya Sanhita (BNS), which replaced the colonial Code earlier this year. Exception two of Section 375 (rape) of IPC excludes non-consensual sexual intercourse by a husband with his wife, if the latter is over 15 years of age, from the definition of rape. A similar Exception in Section 63 (rape) of BNS rules out forced sexual intercourse by a man with his wife, aged over 18 years, as rape.
Constitutional and Human Rights Violations of Women:
The legal immunity accorded to marital rape contravenes several fundamental rights enshrined in constitutional and Human Rights:
- Right to Life and Personal Liberty (Article 21): Marital Rape deprives women of their autonomy, privacy and dignity and infringing the right to live with security and self-respect.
- Right to Equality (Article 14): The legal distinction between marital and non- marital rape fosters gender discrimination, violating the Principle of Equal Protection before the Law.
- Right Against Exploitation (Article 23): Forcing a Spouse into sexual intercourse without consent amounts to forced labor and exploitation.
Conclusion and Need for Reform:
According to Amnesty International data, 77 out of 185 (42%) countries criminalize the marital rape through legislation. In other countries, it is either not mentioned or is explicitly excluded from rape laws, both of which can lead to sexual violence.
Ten countries namely Ghana, India, Indonesia, Jordan, Lesotho, Nigeria, Oman, Singapore, Sri Lanka and Tanzania expressly allow marital rape of a woman or a girl by her husband.
While 74 countries allow women to file complaints against their husbands, 34 out of 185 do not provide any such provisions. About a dozen countries allow rapists to avoid prosecution by marrying their victims.
The discrimination of Marital rapes is an affront to gender justice, constitutional morality and Human dignity Comprehensive legal reforms must include;
- Express criminalization of marital rape within penal status.
- Implementation of victim centric legal remedies.
- Judicial intervention to strike down marital rape exemptions, reinforcing the principle that marriage does not equate to unconditional consent.
- Strengthened survivor support framework.
Rape whether inside or outside marriage, remains an act of violence and coercion. Recognizing marital rape as a criminal offense is not merely a legal necessity but a moral obligation to uphold the dignity and autonomy of women worldwide. The law must serve an instrument of protection insuring that no marriage license becomes the justification of abuse.
Contributed By – Diya Khandelwal