Justice Verma Committee Report, 2013 stated that according to the common law of coverture, a wife was deemed to have given an irrevocable consent to her husband to have sexual intercourse with her, at the time of marriage. In 1736, Sir Matthew Hale declared: ‘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.’ This immunity however has been abolished in various jurisdictions.

Equality Now’s report named ‘The World’s Shame: The Global Rape Epidemic’ revealed that rape of a woman or girl by her husband is expressly legal in at least 10 (out of 82) jurisdictions surveyed. The phase 1 report of the National Family Heath Survey, 2019-20 highlights the recent statistics of percentage of women suffering from gender-based violence. The recommendation of Justice Verma Committee regarding deleting exception of marital rape was also not included in the Criminal Law Amendment Bill, 2013.

The institution of marriage in India is given the utmost importance. However, under the mantle of marriage, the Indian laws have failed to protect the interests of married women. The definition of ‘rape’ under Section 375 of the Indian Penal Code, 1860 covers almost all kinds of sexual offences. However, the exception 2 gives immunity to a man if he has sexual intercourse with his wife, if she is above 15 years of age. Legalizing having forceful sexual intercourse with one’s wife, poses a few serious questions as to whether after marriage, consent of the wife becomes implied? And whether a wife is a property owned by the husband?

In Independent Thought v. Union of India & Anr. [(2017) 10 SCC 800], the Court criminalised the rape of a minor girl aged above 15 years but below 18 years. In this case, Justice Madan B. Lokur had made some pertinent observations with regards to marital rape. He had observed that:

• Article 21 of the Constitution gives a fundamental right to a girl child to live a life of dignity. And an early marriage takes away the self-esteem and confidence of a girl child and subjects her to sexual abuse. The right of a girl child to maintain her bodily integrity is effectively destroyed by a traditional practice sanctified by the IPC.
• The documentary material indicates that there are greater chances of a girl child dying during childbirth and there are greater chances of neonatal deaths. The results adverted also suggest that children born out of early marriages are more likely to be malnourished.
• The view that marital rape of a girl child has the potential of destroying the institution of marriage cannot be accepted. Marriage is not institutional but personal, nothing can destroy the ‘institution’ of marriage except a statute that makes marriage illegal and punishable. 

However, the Court refrained from making any observation with regard to the marital rape of a woman who is 18 years of age and above since that was not the issue before the court.

Further, the distinction between the rape of married and unmarried women or minor or a major women seems to come with several justifications. In a pending matter before the Delhi High Court (RIT Foundation v. Union of India, W.P. (Civil) No. 284/2015), the government has displayed its disagreement on the criminalisation of this evil by giving a three-fold justification.:

• The first being, if criminalised, it ‘destabilizes the institution of marriage’
• The second, it becomes a ‘harassing tool against the husbands’ by the women
• Third, the misuse of section 498A of IPC which deals with violence done on married women by her husband or in-laws or any relatives of her husband.

Interestingly enough, in Nimeshbhai Bharatbhai Desai v. State of Gujarat [2018 SCC OnLine Guj 732], the Gujarat High Court made a few observations regarding the evil of marital rape. The court said that-  

• to treat the marital rape cases differently from the non-marital rape cases infringes on the equal protection clause. The Constitutional right to equal protection of the laws provides that similar subjects should not be treated differently, so as to give undue favour to some and unjustly discriminate against the others.
• Women do not divest themselves of their human rights which includes their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination, and violence. by contracting marriage for the simple reason that human rights are inalienable.
• Husbands need to be reminded that marriage is not a license to forcibly rape their wives. A husband does not own his wife’s body by reason of marriage.

The Court also noted that women should not have to tolerate rape and violence in the marriage and the total statutory abolition of the marital rape is the first necessary step in teaching societies that dehumanized treatment of women will not be tolerated and that the marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalized. Even though the Court made this observation, the husband was not prosecuted for the offence of rape punishable under section 376 as marital rape is not covered under section 375 of the IPC.

Marital rape is a disgraceful offence that has scarred the trust and confidence in the institution of marriage. A large population of women has faced the brunt of the non-criminalization of the practice. It is evident that it is a clear violation of right to life, dignity and personal liberty. It is high time the authorities take cognizance of this evil and take measures to protect the interests of married women by removing the exception.

– Esha Shah, Paralegal