This article has been written by Risha Fatema from Dr. K. N. Modi University

Introduction:

Marital rape is a reprehensible crime involving non-consensual sexual acts within a marriage. Historically, legal systems often overlooked or dismissed this form of violence, but societal awareness and legal reforms have challenged such impunity.

Recognizing marital rape as a violation of consent and autonomy is essential for promoting a culture of respect and ensuring justice for survivors. Many countries now criminalize marital rape, emphasizing the importance of consent within the bounds of marriage.

In India rape is a crime under Section 375 of the Indian Penal Code, 1860^[1] but if the same act done by a husband with his wife is not a crime by the Exception 2 of Section 375 of the Indian Penal Code, 1860^[2].

The Indian patriarchal society gives all the authority to a man over his wife. The husband treated his wife as his property, not as an individual person. The wife is supposed to do whatever her husband wants her to either with her consent or without it.

Marital rape is one of them, if a woman doesn’t want to have a sexual relationship with her husband, her husband can establish the same with force or coercion against her will. And it is not considered a wrongful act but the right of the husband.

Difference between rape and marital rape:

First, we need to understand what is rape? Sexual intercourse done with a woman without her consent is called rape describe under Section 375 of the Indian Penal Code, 1860^[3]. If the sexual intercourse has been done with the spouse without her consent is termed as marital rape, which is nowhere mentioned in Indian law.

In India, marriage is conceded as implied consent to sexual intercourse, which is irrevocable. Because the husband is known to have all the authority over his wife. In a patriarchal society, a wife is considered the property of the husband. It is the duty of a wife to fulfill the needs of her husband with or without her will.

Essentials of marital rape:

There are some essentials that constitute a marital rape. If a sexual intercourse is –

• Against the will of women.
• Without her consent.
• With her consent when she is under 15 years.

Impact of marital rape on a woman:

Sexual intercourse established by the husband without the consent of the wife affects the health of the woman mentally and emotionally, it is physical violence by the husband. Marital rape violates the fundamental rights guaranteed by the constitution under Articles 14^[4] and 21.^[5]

According to National Family Health Survey, 82% of women experienced sexual abuse by their husbands. Only 14% of them, have sought help, and remaining have never told anyone that they have ever experienced sexual abuse.

Karnataka has the highest rate of reported sexual violence by the husband (10.3).^[6]

A woman is expected not to go out and report what evil had happened to her by her husband inside the four walls. She is supposed to remain silent and bear everything. If she steps out of the house to knock the door of the court to ask for justice she has to face many hardships by the society. Only 10% of the total victim women came out to look for the redressal.

Right of women in marriage:

As a man has all the rights to decide everything in his life a woman should also have all the rights. She is a human first who has all the right to decide about her relation and body. She must not be forced to have intercourse without her will.

Because she has a right to live with dignity guaranteed by Article 21 of the Constitution of India.^[7] But to guarantee a safe married relationship the right in marriage should be secured by criminalizing marital rape.

Does Exception 2 to Section 375 need to be removed?

Only 36 countries of the world have not criminalized marital rape yet, and India is one of them, where marital rape is not considered a criminal act. In fact, it is acknowledged as the right of the husband, given to him by marriage.

If the husband has sexual intercourse with his wife without her consent, after separation then he is liable for punishment under Section 376B of the Indian Penal Code, 1860^[8]. But he is not liable for the same act if she is living with him.

Section 3 of the Protection of Women from Domestic Violence Act, 2005^[9] states sexual abuse, but this is a civil law and it does not prescribe any punishment for the abuser.

In 2013, Justice Verma Committee has recommended, “the exception to marital rape [exception 2 of Section 375 of IPC^[10]] should be removed. Marriage should not be considered as an irrevocable consent to the sexual act.”^[11]

But no action has been taken yet to repeal exception 2 from the Indian Penal Code. In every case accused is released by the defense of exception 2 and woman has to suffer in their day-to-day life not only outside their four walls but within it.

Most of the time a married woman faces sexual abuse her perpetrator is not a stranger but her husband.

Does she forfeit the control over her body?

The concept that a woman forfeits control over her body upon entering matrimony is outdated and inconsistent with modern principles of human rights and gender equality. Marriage is a partnership between two individuals, each with their own rights and autonomy.

In contemporary societies, the legal and ethical framework supports the idea that individuals, regardless of gender, maintain sovereignty over their bodies. This means that decisions regarding one’s own body, such as reproductive choices, medical interventions, and personal boundaries, remain within the purview of the individual. Marriage does not negate or diminish these fundamental rights.

Where is her consent?

Historically, some societies perpetuated the notion of a wife’s subordination to her husband, including in matters related to her body. However, societal attitudes have evolved, recognizing the importance of equality and individual agency within the institution of marriage.

In many jurisdictions, legal reforms have reinforced the principle that spouses are equal partners with mutual respect for each other’s autonomy. The right to bodily autonomy extends to various aspects, including reproductive rights.

Women, whether married or not, have the right to make decisions about their reproductive health, including contraception, family planning, and choices related to pregnancy and childbirth. These decisions are personal and should be made freely, without coercion or infringement by a spouse.

Additionally, the recognition of consent as a fundamental principle in intimate relationships reinforces the idea that each partner has the right to decide when and how they engage in physical intimacy.

Consent is ongoing and can be withdrawn at any time, irrespective of marital status. Understanding and respecting each other’s boundaries is crucial for a healthy and consensual relationship.

Moreover, the legal framework in many countries acknowledges the right to be free from violence and coercion within marriage. Spousal abuse or any form of physical, emotional, or sexual violence is not justified by the institution of marriage.

Laws and support systems are in place to protect individuals from such violations, emphasizing the importance of a safe and consensual marital relationship.

Thus, the idea that women lose their right to their bodies after marriage is a misconception rooted in outdated beliefs. Modern societies uphold the principles of equality, individual autonomy, and the right to bodily integrity within the context of marriage.

Legal protections and evolving societal norms affirm that both partners in a marriage have the right to make decisions about their own bodies, free from coercion or infringement by the other. Respecting each other’s autonomy is fundamental to building healthy, consensual, and equal relationships.

SOME PROMINENT CASE LAWS IN INDIA

In Independent Thought vs. Union of India and Anr. 2017

The court raised the age of legal consent for sexual intercourse in marriage from 15 to 18 in Exception 2 of Section 375 but does not discuss the right to privacy and sexual violence.^[12]

In Nimeshbhai Bharatbhai Desai vs. the State of Gujarat, 2018

The court had said that if a husband forced his wife for sexual intercourse, he cannot charge under Section 376 and 377 as in this country a wife gives implied consent to have sexual intercourse.^[13]

In a recent case of the High Court of Delhi, one of the judges, Justice Hari Shankar said that no one can deny that this is a wrongful act but the woman has willingly entered into a relationship in which sexual intercourse is an integral part, so the man has the right to have conjugal relation with her.

There is a difference between the assault by a stranger and forced intercourse by a husband.

He further stated that the court cannot rule on the legislature’s decision to keep the exception in place for the sake of the protection marriage institution. A Court’s subjective opinion that conduct has criminal character and should be punished as such is no basis for striking down the legislative provision that makes the act non-criminal.^[14]

Various Jurisdictions

While there isn’t a specific case law universally addressing the notion of women losing their right to their bodies after marriage, various legal cases have contributed to the broader principles of individual autonomy and equality within marriage.

Here are a few landmark cases from different jurisdictions that have played a role in shaping legal perspectives on these issues:

Griswold v. Connecticut (1965) – United States:

This case is often cited for establishing the right to privacy in the context of marital relations. The Supreme Court struck down a Connecticut law that prohibited the use of contraceptives, even by married couples. The ruling emphasized the right of married individuals to make private decisions regarding their reproductive health.

R v. R (1991) – United Kingdom:

This case addressed the issue of marital rape and challenged the historical legal presumption that a husband could not be charged with raping his wife.

The House of Lords overturned this presumption, acknowledging that marriage does not provide a blanket immunity for non-consensual acts within the relationship.

Molatlhwa v. The State (2013) – Botswana:

In this case, the Botswana High Court ruled that laws criminalizing consensual same-sex acts were unconstitutional. While not directly related to marital rights, this case exemplifies the broader trend toward recognizing and protecting individual autonomy and privacy, irrespective of societal norms or marital status.

X v. Ireland (2010) – European Court of Human Rights

While not specifically about marriage, this case addressed Ireland’s restrictive abortion laws. The European Court of Human Rights found that the lack of clear legal procedures for accessing abortion in certain circumstances violated the European Convention on Human Rights. The judgment emphasized the importance of respecting women’s bodily autonomy and reproductive rights.

These cases collectively contribute to the evolving legal landscape that recognizes and protects individual rights, including the right to bodily autonomy, within the institution of marriage. While the specifics may vary, the underlying principles of equality, privacy, and individual freedom are common threads in these legal decisions.

R v. Clarence (1888) – United Kingdom:

R v. Clarence is noteworthy as it highlights the historical perspective on marital rape. Although the case did not directly deal with the issue of consent within marriage, it laid the groundwork for later discussions.

Mr. Clarence was charged with poisoning his wife, and during the trial, questions arose regarding whether the sexual relationship between spouses implied ongoing consent. The case contributed to evolving legal discussions about spousal rights and set the stage for later legal reforms.

Conclusion:

The legislature of India has not yet declared ‘marital rape’ a crime. According to the society and judiciary also, if marital rape is declared a crime it will shred the institution of marriage. In Indian society, if a woman marries a man she is considered to give implied consent to sexual intercourse.

It seems like the legislature and judiciary have no concern for the rights of women violated and also the health affected by this act. Society is not ready to accept that the husband can also be a rapist of his wife and marriage does not mean consent to establish sexual intercourse.

If the husband abuses his wife he commits rape and should be called a rapist but for now, we can say a husband who sexually abuses his is a legal rapist. Our society wants a woman to live with her legal rapist.

References:

https://lawocals.com/2022/01/31/marital

https://blog.ipleaders.in/marital-rape

1. Indian Penal Code,1860 ↑
2. ibid ↑
3. ibid ↑
4. The Constitution of India, 1949 ↑
5. ibid ↑
6. https://www.thehindubsline.co ↑
7. Supra 5 ↑
8. Supra 1 ↑
9. The Protection of Women From Domestic Violence, 2005 ↑
10. Supra 1 ↑
11. https://prsindia.org/policy/report ↑
12. Independent Thought v. UOI and Anr, 2017 AIR 2017 ↑
13. https://lawsisto.com/legalnead/↑
14. https://indianexpress.com/artic ↑