Rape is one of the most heinous crimes committed against women all over the world that violates the dignity. Rape is defined as “unlawful sexual activity and usually sexual intercourse carried out forcibly or under threat of injury against a person’s will or with a person who is beneath a certain age or incapable of valid consent because of mental illness, mental deficiency, intoxication, unconsciousness, or deception”. The aftermath of Nirbhaya gang rape case saw a substantial increase in whole gamut of cases reported. However, rape within marriage continues to be a blatantly ignored crime and it would be safe to presume that the issue has persisted as long as the institution of marriage has prevailed. Earlier, a woman’s status was reduced to being someone’s property and her identity outside her social relationships was blatantly disregarded which eventually reflected in the laws which continued with the connotation of her being a property. Over passage of time, deliberate considerations with the stakeholders led to change in this preconceived notion and the laws started to regard woman as an individual entitled to basic human rights and rights conferred by the Constitution and eventually laws had to redrafted in light of dawn of this new perspective. Presently, approximately more than 150 countries either have explicitly criminalised marital rape as a separate offence or have abolished marital relationship immunity. Despite this, most of the countries have overlooked upon the aspect of marital rape laws and its presence continues to be invalidated. And, India is amongst handful of countries which have carved out an exception and removed husbands from the sphere of rape laws.
POSITION OF MARITAL RAPE LAWS IN INDIA
Rape amounts to violation of the basic human rights and fundamental right guaranteed to a woman under Article 21 of the Constitution. It is a crime not only against the person of a woman but against the entire society that destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights and is violative of the victims most cherished right, namely, right to life which includes right to live with human dignity contained in Article 21.
The Indian Penal Code,1860 doesn’t provide legal recourse for marital rape per se. The exception to Section 375 states that “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”.  The section attempts to classify victims as married and unmarried without providing a legal remedy for those married by blatantly refusing to treat the sexual abuse and violence as rape. The distinction is based on no reasonable justification and just exempts a possible category of victims wherein the underlying crime remains same. The exception thus grants immunity to husband and doesn’t recognise husband as one of the classes of offenders of the crime of rape.
Presently, a wife cannot prosecute her husband for committing rape as the legislation doesn’t regard the physical and mental violence that victim has to suffer as rape per se but rather provides for a legal remedy to file a case against her husband under Section 498A of the Penal Code that provides for cruelty of any kind and includes physical and mental cruelty. However, the punishment provided under section 498A extends upto 3 years which doesn’t adequately address the extent of severity of this form of sexual violence within marriage. On the contrary, section 375 that provides for minimum sentence of 10 years for committing offence of rape has undergone several changes over course of time and the definition has been widened enough to include different instances that would constitute rape and these instances happen within the purview of marital relationships as well.
Apart from section 498A, the Protection of Women from Domestic Violence Act, 2005 provides for another form of redressal mechanism whereby the aggrieved person or any other person can file a complaint of domestic violence. The relief granted under this Act comprises of “a protection order, an order for monetary relief, a custody order, a residence order, a compensation order”. This act is concerned with civil remedy and redirects aggrieved person seeking to bring in a criminal action against the accused to the cruelty provision of the Penal Code.
The presently available legal remedies don’t sufficiently discuss the concept of marital rape and fails to provide stringent measures of punishment that would be proportionate to the gravity of the matter in question. The current position of law with respect to rape within marriage in a way provides a leeway to the offenders to walk away with less stringent to almost no punishment in majority of cases. In other words, law as of today holds that it is rape if there is absence of consent and if it is converted into marriage, it will cease to be rape.
In Indian context, the prolonged delay towards the criminalization of marital rape can be attributed to the underlying idea of marriage that the society subscribes to. Marriage is regarded as a sacred institution and most of the disputes arising between parties to marriage were earlier considered to be a private matter which were supposedly to be kept outside the purview of public eye. Moreover, the institution seems to be driven by a fallacious notion that marriage signifies consent. It is presumed that by way of marriage, a woman agrees to give irrevocable consent to husband for sexual intercourse. However, as laws in this regard began to evolve with inception of Dowry Prohibition Act,1961, Protection of Women from Domestic Violence Act,2005 amongst many others laws for protection of women’s rights, it saw surfacing of appalling grim realities that women were subjected to behind the closed doors.
Notably, since India was one of the British colonies, the pre-colonial legislations were based on English principles of law. In 1991, House of Lords in case of R v. R recognized and removed immunity granted to husband for rape. The accused in this case too relied on the generally relied upon defence that by entering into the contract of marriage, his wife had given perpetual consent for sexual intercourse. This was initially proposed by Sir Matthew Hale in early 1700s, popularly known as Hale doctrine that was the root cause for exemption of marital relationships from ambit of rape in common law countries including England. He declared that “the husband cannot be guilty of rape committed by himself upon 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”.
Mostly 1980s onwards, several common law countries widened the scope of rape laws to include the aspect of spousal rape. India was no exception to this global shift in perspective and in the year 2000, the Law Commission of India in its 172nd report had attempted to take a step towards dealing with marital rape in wake of Sakshi v. UOI, suggested that the exception under s.375 should be deleted.
On another instance, in the wake of Nirbhaya case, the rape laws underwent praiseworthy changes and this was result of recommendations made by a committee headed by Justice Verma, a former CJI and the panel comprising of notable Justice Leila Seth, a and Mr Gopal Subramanium, looked into possible amendments in criminal laws of India for strengthening the legal system for protection of women from sexual offences. The committee in its report had made noteworthy recommendations including: “i. The exception for marital rape be removed. ii. The law ought to specify that: a. A marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation; b. The relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity; c. The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape”.
The report further disclosed that the exemption garnered international attention of the UN Committee on the Elimination of Discrimination against Women (CEDAW) which called upon for “widening the scope of rape in to reflect the realities of sexual abuse experienced by women and to remove the exception of marital rape from the definition of rape” and to amend the national legislation in consonance with the human rights standard to prevent and combat impunity of rape.
The recommendation upon removal of exception however wasn’t considered while drafting the Criminal Amendment Act, 2013 as it had been long contended that this concept of marital rape doesn’t fit well within the Indian scenario as recognition of marital rape would supposedly destabilize the institution of marriage and alongside, there are many challenges peculiar to case of India including diversity, awareness, socio-cultural values, religious beliefs, the treatment of marriage as a sacred institution in Indi, etc. needs to be taken into account before any law is made in that regard. Rather, the lawmakers made a passing reference by incorporating section 376B in the amendment which states that husband can be held criminally liable for sexual intercourse upon his wife during separation against her consent and prescribed punishment for 2-7 years.
In Nimeshbhai Bharatbhai Desai v. State of Gujarat, the question before the court was whether wife can prosecute her husband under section 375 for allegedly forcing her to indulge in oral sex against her consent. While deciding upon the matter, the Gujarat High Court delved into discussing the prevalence of marital rape in Indian society and accepted that it can cause
irreversible damage to victims who continue to suffer due to non-criminalization of marital rape.
In a landmark judgement delivered by Kerala HC in 2021 while hearing the appeal for restitution of conjugal right, the HC recognised marital rape as a valid ground for seeking divorce. The court observed that the spouse treating his wife’s body as a property and having sexual intercourse constituted a crime similar to that of rape.
The law can be seen to be at developmental stage as the exception stated that sexual intercourse by husband with his own wife, wife not being under 15 years of age is not rape. This provision ruled out the possibility of marital rape even if wife is a minor. So, for instance, if a husband had sexual intercourse with his minor wife without her consent, it was outside the realm of rape laws whereas on the other hand if a man had sexual intercourse with a unmarried girl aged between 16-18 years of age regardless of with or without her consent, it was construed to be rape. The issue was taken into cognizance in landmark case of Independent Thoughts v. UOI which dealt with the aspect of rape in marriage with minor wife wherein the court observed that lowering the age for marital intercourse between husband and minor wife under IPC was at loggerheads with Indian Majority Act, 1875 and POCSO Act,2012 which defined 18 years as age of majority. The court declared that the age factor in exception should be read as 18 years. 
Recently, the Supreme Court gave another landmark judgement whereby it held that sex workers too have right to privacy and are entitled to deny their services and can seek legal protection if forced.
In Shimbhu & Anr v. State of Haryana, the apex court had stated that “Religion, race, caste, economic or social status of the accused or victim or the long pendency of the criminal trial or offer of the rapist to marry the victim or the victim is married and settled in life cannot be construed as special factors for reducing the sentence prescribed by the statute”. The court in this case discussed to a great extent upon the aspect that any of the factors mentioned above shouldn’t be determining factor to intervene with the statutory sentence provided for rape. The SC affirmed its stance that even if accused offers to marry the victim, it shouldn’t in anyway influence the outcome of decision and refusal by victim should be given prime importance in order to protect the dignity of victim. Applying the same analogy while deciding cases of rape within marriages, married women stuck in abusive marriages should be freed rather than being forced to continue staying in wherein her right to bodily autonomy is persistently violated causing an irreversible damage as a result of her husband’s act of extreme form of sexual abuse and violence.
The rape laws should provide equal protection to women whether married, unmarried or a live-in partner.
THE WAY AHEAD
The concept of possibility of rape by husband still continues to be stuck in debate though there seems to be a general consensus as to its prevalence in the society. The debate is tilted more towards the practicalities of implementation of rape law in context of marriage and the spurring misuse that comes with inception of such law. However, the challenges posed shouldn’t be a ground for refusing to acknowledge the need for marital rape laws in India. The concept of consent should primarily be determining factor while deciding upon cases of rape and it shouldn’t be implied on the basis of relationship between aggrieved and accused. The law as and when drafted in this regard, needs to holistically approach the challenges unique to this form of rape to avoid the misuse and further the cause of women empowerment.
 Merriam Webster Dictionary, 10th ed. (1999).
 Bodhisatwa vs. Ms. Subdhra Chakroborty, (1996) 1 SCC 490; The Chairman, Railway Board v. Chandrima Das,AIR 1991 SC 207.
 The Indian Penal Code,1860, s.375.
The Protection of Women from Domestic Violence Act, 2005, s.5(a).
 Sir Matthew Hale. History of the Pleas of the Crown, 1 Hale PC (1736).
 Law Commission of India, “172nd Report on Review of Rape laws” (March 2000).
 Verma, J. and Seth, J., “Report of the committee on amendments to criminal law”, p 117 (Jan 2013).
 Id., p 62.
 2021 SCC OnLine Ker 3495.
 2017 (10) SCC 800.
 State (NCT of Delhi) v. Pankaj Chaudhari, (2019) 11 SC 375.
 (2014) 13 SCC 318.
Author: Ovi Tashildar