WHY CRIMINALISATION OF MARITAL RAPE IS THE NEED OF THE HOUR

India has become modern in so many arenas, yet it lacks on how to treat its daughters. People
must remember Rahul Gandhi’s ‘Rape in India’ comment and how controversial it had
become. According to the 2019 reports of the National Crime Records Bureau (NCRB), the
disgusting crime rape is so common in India that there are on an average 88 cases of rape
daily. 1 Women were earlier silenced against such heinous crimes, but it is now in this modern
age and era that women are learning to raise their voices and ask for what they deserve.

To understand such a complex term like ‘marital rape’, it is first important to understand the
term ‘rape’. Article 375 of the Indian Penal Code (IPC) 2 mentions that a man is said to
commit the offence of rape if he has sexual intercourse with a woman given the following
circumstances; if the sexual intercourse is committed against her will, without her consent, by
threatening a person of interest in front of her of causing death or grievous hurt, by deceiving
that the man is her lawfully wedded husband, with or without consent if the woman is under
16 years of age, by intoxicating the woman and if she is of unsound mind. Hence, these are
the six constituents to establish rape.

Now, however, there is an exception to this section (Exception 2) This exception is the focus
of interest of the following article. Sexual intercourse by a man on his wife is allowed. This is
only a short sentence, yet it is so problematic. Given that the wife is not less than 15 years of
age, then the sexual intercourse; even if it is forced or inflicted upon, is not rape. Any
provision for marital rape does not exist in the Indian Penal Code. India has never recognized
this as a crime and in fact viewed it is something very normal. As if the wife is a property of

1 National Crime Records Bureau, “Crime in India” (Ministry of Home Affairs, 2019)
2 The Indian Penal Code, 1860 (Act 45 of 1860), s.375

the husband and he can do whatsoever with her and easily get away with it; even if it is a
heinous crime.

Further explanation:

The very essence of marital rape lies very deeply rooted in the orthodox Indian society and
the mindset it brings about with it. It is very shameful that the legal documents do not
consider it a crime or as if it is something serious. However, the recent developments towards
criminalization of marital rape are truly commendable. They are a way forward to a new
India. Advocate Karuna Nundy mentioned that the exception mentioned in Section 375 of the
IPC is unconstitutional as it gives importance to the sacrament and bond of marriage over the
individuals who are entering into this sacrament 3 . She very judiciously argued that it defies
the need of the rape law. This is because the rape laws are constituted to protect the daughters
of India so that they are not raped or molested. However, having such an exception out
rightly does away with the protection of women in India. This feels more or less hypocritical.

There are so many cases of marital rape in India, but they mostly go unreported due to the
mentality that a woman has to adjust in a marriage and that marriage is a form of a sacrament.
So, instead of defying the husband from inflicting this act, the woman has to unwillingly give
in every single time. Many women do come out to report the incident, but however, not much
attention is paid to these cases as there is no law regarding this as marital rape is not
considered a crime in India.

In 2015, the Delhi based NGO RIT Foundation filed a petition in the Delhi High Court
questioning this exception of Section 375. The case is still ongoing and it is recently
developing new establishments everyday which are directing towards a field of progress for
oppressed married women. This case is RIT Foundation vs. Union of India 4 . A current
development is that that the Central Government has requested a stay order to the Delhi High
Court so they can discuss the legalities of the issue in hand.

Facts and Figures:

3 https://www.barandbench.com/news/litigation/marital-rape-exception-under-section-375-ipc-places-
institution-of-marriage-over-individuals-karuna-nundy (last visited on February 7, 2022)
4 AIR 2015 SC 284

 According to National Health and Family Survey (NFHS) 2015-16, about 5.4%
married women have experienced marital rape. 5
 In the survey conducted by the Ministry of Health and Family Welfare in the year
2005-2006, about 9.5% women went through this form of rape. 6

However, these are very few figures which are available for the eyes of public and in a
general opinion, these figures are not very trustworthy or accurate. Most women are silenced
against such crimes; hence these incidents go unreported. According to the National Crime
Records Bureau’s statistics of 2015-16, it is very evident that less than only 1% of such cases
are reported. About 150 countries have criminalized marital rape as of now and it is high time
that India recognizes marital rape as a criminal offence too.

India and its Mentality:

It is almost ironical how there are so many gods and goddesses in the world. Many of them
are females. The same few men who worship these goddesses are the ones who subject their
wives to cruelty and abuse. It is the 21 st century and there have been so many eye-opening
movies brought out by the Bombay Cinema which focus on women’s rights. The movies are
very educational and apt to describe the atrocities inflicted upon women of the society and
the struggles and consequences it brings about with it. Movies like Section 375 and Pink
show the harsh realities of the country. It explicitly shows the women’s right to say ‘no’ to
advances and sexual offers. The exception 2 in Section 375 of the IPC takes away a woman’s
right to say no.

It is a question on the dignity of the women of the country. If the female power of the country
has the right to say no, then why such an exception for wives? How is it that married women
are different? This very hideous exception is like a splash of insult across the women of the
country. The words “Qubool Hain”, “I do”, and the seven rounds of the “holy” bond of a
marriage doesn’t imply the license of forced sex; which may also be referred to as rape. This
forced sex which is done by husband upon a wife is not at all considered as rape in the eyes

5 Government of India, “National Health and Family Survey-4” (Ministry of Health and Family Welfare, 2016)
6 Government of India, “National Health and Family Survey-3” (Ministry of Health and Family Welfare, 2006)

of the Indian Penal Code. It is like the time is ticking now. About 150 countries have
criminalized marital rape and India is going to lag behind.

A remarkable judgement towards progress:

While marital rape is still not recognized as a crime or an offence in the country, Kerala High
Court very boldly gave a judgement which is a way towards new developments and progress
in 2021. 7 A plea was being heard of a woman who was subjected to worst forms of sexual
abuse and violence by her husband; even when she was pregnant which led to difficulties
which are unthinkable.

The woman had the case going on in the Kerala High Court and it observed that the woman
was subjected to very violent types of cruelty. Such types of cases are numerous in India, but
only some get the privilege and the platform to come ahead and report these disturbing
incidents. The Kerala High Court said that marital rape provides for a very strong ground for
divorce as no person should be subjected to this kind of oppression. This is indeed a
landmark judgement. This gives a tiny ray of hope for a better India which is about to come;
perhaps in the very near future. The High Court judgement has set an example for the country
indicating what the women of the country actually deserve.

However, it must be kept in mind that this judgement is no indication of criminalizing marital
rape. There is still a long run to go for this achievement. Perhaps, other high courts of the
country can take this highly commendable example to establish the same kind of progressive
judgements in their jurisdiction.

Is the exception violating the Constitution?

It has now been 72 years since our Constitution came into effect. There have been certain
problematic clauses in the Constitution and the IPC which have been amended, criminalized
or decriminalized. Our Constitution enshrines us with certain rights and upon the violation of
these rights, the aggrieved citizen can seek remedies.

7 https://www.thenewsminute.com/article/landmark-judgment-kerala-hc-recognises-marital-rape-ground-
divorce-153556 (last visited on February 9, 2022).

Article 14 of the Indian Constitution mentions the equality of individuals before the law and
equal protection of laws within the geographical territory of India. 8 Hence, if the law protects
every citizen equally regardless of caste, creed, sex and religious affiliation, then how are
married women excluded from being provided their equal rights? If rape victims have the
right to file a complaint and move to court, then why such an exception for married women?
It is surreal to think that this particular crime becomes a non-crime the minute they are
declared to be married on paper. The first reason why marital rape should be straightaway
criminalized is because it violates Article 14 of our great constitution.

Article 19 of the Indian Constitution provides the freedom of speech and right to expression
to all the citizens of the country. 9 Advocate Karuna Nundy very rightly argued in the Delhi
High Court that Exception (2) of IPC Section 375 takes away the right of women to display
sexual freedom and sexual expression. 10 This is violative of Article 19 (1)(a) of the Indian
Constitution. Each individual has the fundamental right to move to court and seek
constitutional remedies under Article 32 of the Indian Constitution when their rights are
exploited. 11 Hence, this is a grave issue which needs to be dealt with at the earliest. This is
the second and the third reason why criminalization of marital rape is the need of the hour.

Article 21 of the Indian Constitution enshrines in each person the right to live with dignity. It
ensures the protection of life and personal liberty. 12 The said exception in the mentioned
Section is a very infringement upon Article 21 of our highly respectable constitution. Don’t
married women have a respectable position in the society? Don’t they deserve to be treated
with dignity? Don’t they have the right to live in the society with such an exception? Why
subjugate married women to such an anomaly. Hence, this is the fourth reason why marital
rape should be considered as a crime.

Hence, marital rape should be considered as an offence and be criminalized right away. The
act violates Articles 14, 19, 21 and 32 of our constitution.
8 The Constitution of India.
9 The Constitution of India.
10 https://www.livelaw.in/news-updates/marital-rape-delhi-high-court-freedom-of-expression-article-1919a-
constitution-190985 (last visited on February 11, 2022).
11 The Constitution of India.
12 The Constitution of India.

Conclusion:

As it is mentioned above, about 150 countries have criminalized marital rape till date. There
are only 36 countries in the world which are yet to criminalize this act and India is one of
them. If our country is so advanced in rocket science and other complicated technologies,
why can’t the country be forward in this arena. When the biggest brains of the country can
understand complex matters like science, mathematics, computer technology among many
fields, then why not comprehend a simple thing that marital rape is heinous and it can scar a
married woman for life. It is as if the woman is bonded with shackles.

It is a very saddening state of the country that the Central government is constantly asking the
Delhi High Court to defer this case rather than taking strict and urgent action against it. this
act calls for immediate attention since it is already high time now. The time is ticking and if
India does not take this step now, then it would be too late.

Several women have suffered since this Section’s exception has been framed in the Indian
Penal Code. These women are treated as a property, or merely as cattle. Husbands do
whatever they please for their own pleasure. But, it should be important to realize that
married women are no different from other women. Hence, India should now rise and take a
step towards this change.


Author: Zarana B. Samanta


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