India is one of 36 countries around the world where marital rape is not illegal. The exception to marital rape is enshrined in its laws.
Section 375 of the Indian Penal Code (IPC) defines rape as a criminal offense and states that a man commits rape if he has sexual intercourse with a woman without her consent or if she is a minor. However, according to exception 2 to Section 375 “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
Thus, Indian men could rape their wives if they are older than 15. In a landmark judgement in 2018, the Supreme Court of India held that it will be considered rape if a man has sexual intercourse with his wife if she is aged between 15 and 18. The legal age of consent for women in India is 18.
Feminists have long argued that consent to marriage cannot be construed as lifelong consent to sex. According to one study by the UN Population Fund, more than two-thirds of married women in India, between the ages of 15 to 49 have been beaten, raped, or forced to provide sex.
The only recourse against non-consensual sex for married women are civil provisions under the Protection of Women from Domestic Violence Act or Section 498-A of the IPC on cruelty against wife by husband or a husband’s relatives.
After the horrific 2012 Delhi gang rape and murder case shook the nation, a committee was formed under Justice J. S. Verma to strengthen the criminal laws against sexual assault. The Verma Committee explicitly recommended that the exception for marital rape should be removed. It also specified that a marital relationship is not a defense against rape, is irrelevant to the inquiry into whether the complainant consented, and is not a mitigating factor justifying lower sentences for rape.
No such reforms were implemented.
“I do not think that marital rape should be regarded as an offense in India, because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values,” said the former chief justice of India, Dipak Misra, at a conference last year, reported the Deccan Herald.
The present Indian government is also of a similar opinion. The government, in views presented to the Delhi High Court, argued that criminalizing the rape of married women by their husbands can “destabilize the institution of marriage.” The Indian government added that a law against marital rape could become an “easy tool for harassing husbands.”
This plays into the prevailing discourse that women who report abuse cannot be trusted and they will often misuse laws enacted to protect them from abusive men. Little empirical evidence is presented for this argument. In a paper on the myth of false accusations, lawyer and researcher Zoe Brereton argues that rather than focus on the pressures on women to recant their complaints, the focus of the injustice is shifted to the abusers, who are presented as victims of a false complaint
Statistics show a dire picture. In one study, one in three men in developing countries like India admitted to raping their wives. According to a paper by Aashish Gupta, the number of women who experienced sexual violence by husbands was 40 times the number of women who experienced sexual violence by non-intimate perpetrators. Marital rape remains under-reported – it’s estimated that less than 1 percent of marital rapes are reported to the police.
Like most IPC codes, the exception to Section 375 has its roots in the British colonial system. It was drafted in the 1860s, when the English did not consider a married woman as a separate legal entity from her husband. The Victorian system did not recognize the two sexes as equal and the identity of a married woman was merged into their husband’s identity under the “Coverture Law” that dictated women’s subordinate legal status under marriage.
Since its independence, Indian law has recognized husbands and wives as independent and separate legal identities and also pushed for laws for the protection of women. Nevertheless, the continued existence of exception 2 creates two classes of women: unmarried women who are protected from sexual harassment and rape by law and married women who are offered no such protection from sexually abusive husbands.
If the consequence of rape is the same whether a woman is married or unmarried, why should there be an exception to the punishment?
In many ways, this is a continuation of the colonial idea of coverture law where a married woman loses her legal identity as a person upon marriage and becomes a subject of her husband — clear violations of Article 14 of the Indian Constitution, which guarantees equality before the law, and Article 21, which guarantees a right to life.
Lower courts like the Gujarat High Court have ruled against this idea of implied consent in marriage. In a 2017 case, the High Court ruled that the exemption to marital rape “stems from a long outdated notion of marriage which regarded wives as no more than the property of their husbands,” adding that “it has long been time to jettison the notion of ‘implied consent’ in marriage. The law must uphold the bodily autonomy of all women, irrespective of their marital status.”
Despite numerous writ petitions to repeal the law, no action has been undertaken. Contrarily, rape-marriage — were unmarried rape victims marry their abusers — has often been suggested as a recourse by Indian courts.
Rape is rape and failure to criminalize it is complicit acceptance. Seventy-three years since Indian independence, it is time we free married women from state-sanctioned marital rape.