Marital Rape: Why Are Indian Laws Still Confused About This?

Trigger Warning: Rape, Sexual Violence Against Women

The concept of marital rape in India is the epitome of what we call an ‘implied consent’. Marriage between a man and a woman in India implies that both have consented to sexual intercourse and it cannot be otherwise. The Indian Penal Code, 1860 also communicates the same. Section 375 defines the offence of rape with the help of six descriptions. One of the exception to this offence was “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”.

However, this was read down in the case of Independent Thought v. Union of India as “Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape”. Well, this very recent change is just half a battle won. It is discriminatory and violates the fundamental rights of the Constitution of India. Thus, a red flag reminding us that the Indian Penal Code and other legislations that normalize marital sexual violence, are ancient and there is a dire need to amend them in accordance to contemporary times. 

Law and Society: Restricting Criminalization of Marital Rape in India

The infamous case of Phulmoni Dasi wherein an eight year old child died of excessive bleeding due to sexual intercourse by her husband who was in his mid-thirties at the time. But the husband was convicted, not for rape, but for ‘causing grievous hurt by doing a rash and negligent act dangerous to life’ with one year of imprisonment. The following two points from the judgement helps analyse the general attitude towards marital rape and how it is relevant even now. 

“The branch of the law which has no connection with this case is the law of rape.”

“The law, it is true, is exceedingly jealous of any interference in matters marital, and very unwilling to trespass inside the chamber where husband and wife live together, and never does so except in cases of absolute necessity.”

These two points recognize the most common perspective of the legislation and the judiciary. The Protection of Women from Domestic Violence Act, 2005 in its definition of domestic violence, includes among other things, sexual abuse which defines as, ‘any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman’. The definition here does not specify the acts that constitute sexual abuse.

On the other hand, Section 375 exception 2 absolves a husband from any crime if he happens to rape his wife. Both these laws seem to be contradicting each other because rape can be said to be a ‘conduct of a sexual nature that abuses, humiliates, degrades or violates the dignity of a woman’. Both the laws make it absolutely ambiguous and need to be fixed. Interestingly, a legislation against marital rape came into being without actually calling it ‘marital rape’. Thus, the hesitance to interfere into the sexual life of a married couple and to name it after a heinous crime as such of a rape. 

Well, it took 127 odd years to compensate for the disastrous errors of the imperials made in the Phulmoni case. In 2017, a PIL was filed by Independent Thought, an organization that works on child rights, to question the constitutionality of Exception 2 of Section 375. It was argued that the exception discriminated between married girl child and an unmarried girl child as the latter would be considered rape and the former is not. Well, there lies discrimination even when a married woman is not protected against rape from her own husband. It is a failure to understand two very different concepts—‘consent to marriage’ and ‘consent to sexual intercourse’. They both cannot be used interchangeably or as synonyms. If anything else, an adult woman understands better the act of someone sexually assaulting her. Thus, it is equally important to protect married women above 18 years of age against the crime of rape.  

Also read: SC Says Protecting ‘Institution Of Marriage’ Is Above Marital Rape

Rape Laws with No Discrimination

Section 375 of the IPC is probably the only provision that in itself discriminates between two groups of the same sex; married women and unmarried women. It is absurd to have a law in which, one part protects all women from sexual violence but at the same time permits marital rape of a married woman by her husband. This discrimination is in violation of Article 14 of the Constitution of India. Through various judgements of the Supreme Court, it is now clear that right to life under Article 21 of the Constitution includes right to privacy, sanctity of female and to make choices relating to sexual activity. Section 375 Exception 2 stands against these very basic human rights and is contradictory in nature to the Protection of Women from Domestic Violence Act, 2005. And yet, it is still clung on to a law that absolutely defeats its very purpose to protect women from rape, which needs to be struck down as unconstitutional.

Changes in law and society go hand in hand. The biggest battle to fight is the patriarchy, institution of marriage and family structure of India. Majority of marriages in India are ‘arranged’ in which women have no say and the family members consent to marriage on her behalf. Thereby, a marriage automatically means that a woman consents to sexual intercourse because for the longest time, women have been treated as a tool of procreation and to extend the family lineage. Section 9 of the Hindu Marriage Act, 1955 which has been highly debated for years now, wherein a husband can, legally, demand sexual access to a spouse is more than often only used against married women. That should be enough proof to how little sexual consent women have in their marriages.

In case of such an unfortunate incident, it is going to be extremely difficult for a woman to question the very family structure she is a part of. The perpetrator here, is her own husband; in an arranged marriage or otherwise. Even before she files a complaint, there will be family interventions and reconciliations that would lead to re-victimization.

Also read: Dear Lawmakers, Marital Rape Is Still Rape. Period

It is a situation as that of a double edged sword. She has to question those very people whom she loves and respects and it affects the family structure. Therefore, there should be enough care taken to protect the survivors as it may also lead to their abandonment. It is of utmost importance to question such a system of family and to criminalize the act of marital rape because it is no different from when a woman is raped by a stranger. Rape is rape, irrespective of who the perpetrator is and the age of the survivor. 

Aditi is a feminist law student. An occasional writer. Believes in self love, humanity, equality and justice. Truly, a girl in the corner with her headphones on. 

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