Demystifying ‘Consent’ in Marital Rape in India

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The Indian judiciary does not penalize marital rape, i.e. the Indian Penal Code, 1860 does not acknowledge that a husband raping his wife is a crime. The reasons for this are numerous and may be found in several Law Commission papers, Parliamentary discussions, and judicial rulings. The arguments range from preserving the sanctity of the institution of marriage to existing legal alternatives. In this study, we show how these justifications for not criminalizing marital rape are false. We claim that the marital rape exception clause in the Indian Penal Code, 1860 is unconstitutional based on an examination of Article 14 of the Indian Constitution.


The meaning of violence arranged in Section 375 of the Indian Penal Code (“IPC”) incorporates all types of rape including non-consensual intercourse with a woman. However, Exception 2 to Section 375 absolves reluctant sex between a spouse and a wife north of fifteen years old from Section 375’s meaning of “assault” and accordingly vaccinates such demonstrations from indictment. According to current regulations, a spouse is dared to convey ceaseless agreement to have intercourse with her better half in the wake of going into conjugal relations. While reluctant sexual contact between a spouse and a wife is perceived as a criminal offense in pretty much every nation of the world, India is one of the 36 nations that actually have not condemned conjugal rape. The Supreme Court of India and different High Courts are right now overwhelmed with writ petitions testing the legality of this exemption, and in a new milestone judgment, the Supreme Court condemned reluctant sexual contact with a wife somewhere in the range of fifteen and eighteen years of age. This judgment has thus prompted an expansion in different writs testing the lawfulness of Exception 2 in general. Considering continuous prosecution, this Article fundamentally examines the lawfulness of Exception 2.

This exemption is based on anticipated matrimonial consent. According to Hale’s concept, a woman’s identity is subjugated to that of her husband. Because they are one, how can a man rape himself? As a result, her ‘NO’ is insignificant, and her agreement is implied in the institution of marriage. Even in voidable marriages, the male might rape her and claim exemption until the marriage is declared null and void by the court.

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Demystifying ‘Consent’ in marital rape in India

The subject of marital rape is not new in the Indian setting, and no discussion of it would be complete without discussing the Phulmani case from Bengal. In 1889, a 35-year-old man raped his 11-year-old wife, killing her. Following that, the former British government passed the second Age of Consent legislation, raising the consent age from 10 to 12. This move outraged many parts of society and drew criticism from important leaders such as Bal Gangadhar Tilak, who believed that the British were interfering unnecessarily with Hindu rituals and religion. The Bengali orthodox Hindus maintained that a girl reaches sexual maturity by the age of 10, and that this conduct violates the sacredness of Hindu marriage.

In 2005-06, the National Family Health Survey found out that among the 80,000 women they had interviewed, about 92% said that they had been sexually abused by their current or former husbands. The National Family Health Survey of 2015-16 showed no improvement as the data estimates 99.1% of sexual assault cases go unreported. A reference to the National Crime Records Bureau’s statistics would present that less than 1% of such incidents were reported.

The Justice Verma Committee, formed in the aftermath of the December 2016 Delhi gang rape and murder case to improve sexual assault legislation, said that the victim-offender relationship is irrelevant and that the focus should be only on the presence of consent. Kanimozhii, a Rajya Sabha member, asked the administration on the floor of the Rajya Sabha in 2015 whether they meant to abolish the exception granted to married males under Section 375 of the IPC. Haribhai Parathibhai Chaudhary, the minister of state for home affairs, stated that the administration has no such plans since it values the sacred institution of marriage. Poverty, illiteracy, and present societal practices were also highlighted by the minister as reasons for continuing with the exception. According to the panel formed to study the Verma Committee’s recommendations, criminalizing marital rape would put the entire family “under stress” and might potentially destroy the institution of marriage. However, some contend that rape has the potential to destroy the institution of marriage. Furthermore, while debating criminalization, worries about usage frequently arise. Vrinda Grover, a human rights advocate, answers by saying that the difficulties in proving the occurrence of the offence or its prospective misuse should not prevent victims from pursuing legal redress.

Penalizing marital rape necessitates changes to the Hindu Marriage Act. Denying sex, according to Hindu beliefs, contradicts the precepts of an ideal Hindu wife. It has also been noticed that denial of sexual intercourse is a prevalent reason for divorce. The Karnataka high court ruled that denial of sex constitutes a violation of parts of the Hindu Marriage Act and hence grounds for divorce. When the shadow of patriarchy weighs so heavily on our belief system, it becomes even more difficult for women to fight for their rights, even ones as basic as bodily autonomy.

In his History of Pleas of the Crown, Justice Hale (1736) stated, “Husband cannot be convicted of rape perpetrated by himself upon his legitimate wife.” He reasoned that once a couple is lawfully married by mutual consent, the wife is presumed to have consented to sexual intercourse with her husband for the duration of the marriage. Marriage is viewed by the courts as a contract that requires the wives to engage in sexual intercourse, a contract that they cannot break. The “obligation” of sex is allocated equally by law, yet it is evident that it works to men’s advantage. Victims of marital rape and battered women have a lot in common. Women are taught in both circumstances to be obedient, not to complain or express their problems. The belief that victims of both types “deserved it” or “needed to be beaten” or the lessons passed down generations that “husbands are supposed to hit their wives” are the reasons why victims of both types still chose to stay in the matrimonial home despite such horrors. It is often considered that family members cannot rape women.

Marriage is a social institution that evolved in response to the necessity to regulate human sexual behavior, i.e. to limit unbounded polygamy and polyandry. This suggested unrestricted and exclusive sexual access to one’s spouse. Conjugal joy for both, not just the guy, was envisioned, and it was intended to be mutually pleasurable. When one person expresses an objection, the other must respect that. You can’t expect them to put up with excessive demands, unilateral peculiarities, or dreams that the other partner dislikes. Our courts have ruled that denying sex constitutes mental cruelty, which can be grounds for divorce. The resumption of conjugal contact between spouses during the iddat period also nullifies divorce in Muslim law.

Denying women the right to say ‘no’ smacks of paternalism, in which some groups of people’s voices and choices are dismissed. Children, people suffering from insanity, and animals are seen to lack the capacity to reason and decide what is good or harmful for them, thus the law has stripped them of their agency.

Generalizations expecting women to be hesitant and act expensive further jumbles the issue and makes men take their ‘no’ as a ‘yes’ or a sign that she believes them should persuade and wheedle her to change over her ‘no’ into a ‘yes’. Additionally, concerns in regards to the abuse of “assault” charges against spouses by disappointed wives to constrain, coercion, or rebuff, have filled in as a hindrance against its criminalization. The private idea of this wrongdoing and absence of observers in the room would make it a skirmish of ‘her statement’ against ‘his’. In conjugal connections, a clinical assessment would be of no assistance except if the demonstration was joined by some kind of ruthlessness. In addition, it would be hard to demonstrate the specific second when assent was denied or removed. This, went with orientation explicit assault regulations and existing guidelines under proof regulation, for example, assumption as to nonappearance of assent and outright dependence on assault casualty’s only declaration even without any substantiation makes it an imposing arrangement with a solid chance of abuse..

Rape is rape, whether committed within or outside of marriage, and it must be punished. Simultaneously, our legislators must develop well-defined categories of rape sanctions that separate lack of consent in passive submission from those involving physical violence, compulsion, or harshness. Punishment cannot be measured by a single yardstick. To ensure that the wicked are punished and the innocent are not, we must redefine marital rape and rethink the associated sentencing and prosecution systems.

Can a shift in reforms result in a shift in mentality?

So far, we have established that criminalizing marital rape is critical and must be completed in order to protect women in our country and their rights as equal citizens of India. However, it is also true that in Indian society, marital rape is not considered a crime. Most individuals are unaware that it is a crime since they believe it is a husband’s right to force his wife to have sexual relations with him.

It has been argued that criminalizing marital rape may undermine the institution of marriage and contribute to the institution’s demise. Perhaps this is why Indian law does not consider marital rape to be a crime.

The precise explanation for this is unknown. Can a change in reforms, however, result in a change in mentality? If a change in the legislation fails to make people grasp the gravity of such a crime, cases of marital rape would continue to go unreported and be accepted by society.

Once the legislation is amended so that marital rape is no longer an exception to the law that criminalises rape, women will have a voice and the option to report such a crime, which will empower them and may lead to long-lost equality even inside a marriage. When it comes to mentality, one needs to modify their mindset in order to make development. All of this, however, can only be accomplished if a move toward change is taken.

When it comes to rape, the married bond cannot be used as a defence, and the law must express and recognise this. If marital rape is not criminalised, the harm done to women will undoubtedly outweigh the harm done to society by destabilising the institution of marriage.

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For quite a long time women have battled. They have battled against segregation and for balance, to be perceived as equivalent residents. All types of people have added to women’s activist developments and we have for sure made considerable progress. In any case, a mandatory change in the law should be made for one more advance towards a general public where people are dealt with similarly. Not condemning conjugal assault adds to disparity and is along these lines, unlawful.

In the radiance of uniformity, the law should revise segment 375 and notice that a relationship of marriage or some other relationship is anything but a substantial safeguard for assault. There ought to likewise be a different area that condemns the offense of conjugal assault so casualties don’t need to take plan of action under the Protection of Women from Domestic Violence Act (PWDVA).

Marital assault is a special case for assault for ladies who are more than fifteen years old, when the legitimate age for ladies to get hitched is at eighteen. There are no real explanations that help the special case proviso under area 375 and no real explanations for why conjugal assault is thought of as real. In this way, an adjustment of changes will most likely spread mindfulness which thusly will achieve a genuinely necessary change in mindset.

This article is authored by Sohini Chakraborty, 4th year BA. LLB. student at KIIT School of Law Bhubaneshwar

All efforts are made to ensure the accuracy and correctness of the information published at Legally Flawless. However, Legally Flawless shall not be responsible for any errors caused due to oversight or otherwise. The users are advised to check the information themselves.

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