According to the NHFS-4 research, 5.4% of Indian women experienced marital rape. Is marital rape a crime in India? What parts of the criminal code apply to marital rape?
Marital rape is defined as sexual contact with one’s spouse without the partner’s permission. Marital rape is not a crime in Indian law. However, there has been a growing movement to criminalise marital rape. Section 375 of the IPC defines the activities that constitute man-on-man rape. The provision does, however, provide two exceptions.
It also argues that medical procedures or interventions are not rape and decriminalises marital rape. Exception 2 of Section 375 states that “sexual activities or sexual intercourse by a man with his own wife, if the wife is not under the age of fifteen, is not rape.” A colonial-era norm influenced the unusual ban of rape in marriage. A woman has no personal legal identity after marriage, according to the Doctrine of Coverture.
It also argues that medical procedures or interventions are not rape and decriminalises marital rape. Exception 2 of Section 375 states that “sexual activities or sexual intercourse by a man with his own wife, if the wife is not under the age of fifteen, is not rape.” A colonial-era norm influenced the unusual ban of rape in marriage. A woman has no personal legal identity after marriage, according to the Doctrine of Coverture.
Notably, the Supreme Court of India’s decision to decriminalise adultery in 2018 focused on the Doctrine of Coverture throughout the hearing. The Doctrine of Coverture was deemed to be the foundation for Section 497, which made adultery a criminal. Despite the Constitution’s rejection of this notion, it argues that when a woman marries, she loses her identity and legal rights, which is a violation of her basic rights.
In the case of State of Karnataka v. Krishnappa, the Supreme Court decided that sexual assault is a humiliating act that violates someone’s right to privacy and the integrity of their own female body. The Supreme Court equated the right to decide on problems affecting sexual action with respect for one’s privacy, personal space, and dignity under Article 21 of the Constitution, as well as bodily integrity, in Suchita Srivastava v. Chandigarh Administration.
In Joseph Shine v. Union of India, the Supreme Court of India overturned the 158-year-old Victorian morality rule against adultery. Husbands are not their wives’ masters, and wives are not their husbands’ property, according to the Supreme Court. When the husband has control over the woman’s sexual agency, she is viewed as his property. Control over the woman’s devotion is regarded as protecting the husband’s property investment in his wife.
Marital rape violates a woman’s or a wife’s right to live a dignified life. The right to life is a basic right guaranteed by Article 21 of the Indian Constitution, and it encompasses the right to live in dignity. In a number of cases, the Supreme Court of India decided that rape violates the victim’s right to life and to a decent living. Married and unmarried women should have equal access to their bodies.
The right to privacy is not explicitly mentioned in the Indian constitution. However, the Supreme Court has concluded that the extent of Article 21 naturally guarantees a right to privacy. In the case of State of Maharashtra v. Madhukar Narayan, the Supreme Court decided that every woman has a right to her sexual privacy and that no one has the right to disturb that private whenever they choose. Everyone has the freedom to choose what they do with their bodies. Similarly, one of a woman’s most intimate decisions is whether or not to engage in sexual activity or provide consent.
It is a natural right to be able to express oneself. In light of this, the concept of marital exclusion for rape under Section 375 of the Indian Penal Code (IPC) becomes a kind of interference with her right to decision-making and hence a violation of her right to freedom of speech (Article 19). Even if they are not divorced, a spouse who lives apart from his wife may face rape charges (Section 376B) Any male (even a husband) who engages in carnal intercourse against the rules of nature is punished under Section 377 of the IPC.
This exclusion suggests that a woman is the property of her husband, which contradicts the Supreme Court’s decision in Joseph Shine v. Union of India (2018). It has the potential to destabilise families, destroy marriage, and annihilate the cornerstone of the family, which defends family values and sustains the nation. Marriage is considered as a sacrament in Indian culture. It might be used in the same manner that section 498A of the IPC, which forbids harassment of married women by their husbands and in-laws, is increasingly being used to harass husbands.
Making marital rape a criminal will result in issues such as If a man participates in any sexual act with his wife that qualifies as marital rape, the woman, who cannot always be trusted, will be the only one who can assess whether or not the action constitutes marital rape. The court’s involvement tips the balances in favour of deleting the legal exemption for marital rape. The Supreme Court’s refusal to stay the verdict that resulted in the first marital rape trial of a man demonstrates that the higher judiciary is willing to conduct a full examination into the colonial-era clause.
The UN Committee on the Elimination of Discrimination and the JS Verma committee, both formed in the aftermath of the Nirbhaya gang-rape case against women, both advised the government in 2013 that legalising marital rape is a wise decision for India. The statutory prohibition on marital rape must be accompanied by behavioural changes in society at large, including prosecutors, police, and the general public.