Marital Rape Law in India: Need to Change the Law

BY Dr. Sidhra Ram Sharma.

Afghanistan’s president Hamid Karzai approved a marriage Bill for Shias (thereby making it a law) that gave husbands absolute sexual control over their wife. As per this law, wives cannot refuse if their husband demands sex. In other words, they can be legally raped by husbands.

In October 2006, India enacted a new piece of legislation, namely the protection of women from Domestic Violence Act which has given women a modicum of protection from domestic abuse. However, victims of marital rape are still not saved by this law because the Act fails to consider rape of a woman by her husband a crime under Indian laws. The notion that one cannot rape one’s spouse can be traced back to statements made by Sir Mathew Hale C.J. in the 17th century. According to Hale – “The husband cannot be guilty of a rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract, the wife has given herself in kind unto her husband, which she cannot retract”.

This idea that marriage is a license of rape is no longer widely held. In Dec. 1993, the United Nations High Commissioner for Human Rights published the declaration on the elimination of violence against woman. This is a very clear expression of a worldwide desire to eradicate violence against women at the international level.

Marital rape is still legal in India, while the Supreme Court in Nepal has declared that husbands who force their wives to have sex can now be charged with rape. Recently, the Central government is reviewing a proposal to make it a criminal offence to have forced sexual relations with one’s wife. The Women and Child Development Ministry has forwarded to the Home Ministry the recommendation by the National Commission for Women (NCW) that the existing exemption for husbands under Sec. 375 of the Indian Penal Code (IPC) shouldn’t be there. The Commission wants a report “Rape: a legal study” which stated “when the entire world is on the move, why should the Indian woman be left behind?”

Rape studies indicate that between 10 to 14% of married women are raped by their husbands. The incidence of marital rape soars to 1/3 to 1/2 among clinical samples of battered women. Sexual abuse is found in over 25% of rapes.

Here the Law indicates that there is a conflict in the laws dealing with rape even as others were handed out rigorous punishment under sec. 376 of IPC. A writ petition filed by an unmarried girl seeking parity of unmarried girl with a married girl to have sex on demand and through consent of her husband. Husbands have immunity from being prosecuted by their husbands under sec. 376 for marital rape under sec. 375 of IPC 1860. Sec 376A was added in IPC on the recommendations of joint committee on IPC (Amendment) Bill, 1972 and the 42nd Report of the Law Commission of India to plug the loophole in it that a husband could not be charged with raping his wife even if they are legally separated. The wife’s consent to having sex is presumed as part of the marriage. But it was only made applicable where the husband and wife are separated under a decree of judicial separation or by custom. Exception 2 of Sec 375 IPC provides that “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”. Sexual intercourse with a woman below the age of fifteen is rape irrespective of whether the accused is married to her or not. Sec. 376 IPC provides punishment for rape. However, Exception to Sec. 376 IPC 1860 states that whoever commits rape with his own wife when it is between 12 to 15 years may be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.

There is contradiction between age of marriage i.e. 18 years and legal age of sexual intercourse with wife i.e. 15 years. A three judge Bench comprising Justices Vikramjit Sen, Madan B. Lokur and Kurian Joseph in Independent Thought vs Union Of India held that Sec. 375 of IPC, 1860 states that it is rape if the woman does not refuse sex with the husband. The Court sought the government’s reply on the constitutional validity of some of the sub-sections of Section 375 and 376. He asked the government to file its reply and explain whether there was no conflict with the law. In its reply, the Centre indicated there were some changes in the law, which can now be indicated in the Supreme Court. The bench observed if there is a sexual act against her consent and she is 15 it’s rape. Why should the fact that the girl is married make any difference, the fact that the girl is married does not change the consensual age of sex. In case of an unmarried girl it is 16 years while it is 15 in case of a married girl. As the human rights counsel Arvind Jain contended, “How does the Law give a license to the husband to have sex with his wife without her consent? World-wide, it is an offence to have sex with your wife without her consent and in at least 106 countries it is a criminal offence. Thus marital rape should be made an offence even in India.” Jain said the Law gives immunity to husbands of under-aged girls between 15 and 18 even if having sex is against her will.

If marital rape is not a crime, how can an unwanted pregnancy be? In Dec. 1993, the United Nations High Commissioner for Human Rights published the declaration on the elimination of violence against woman. But the foundation of Indian law on the issue seems to be based on the idea that the right to rape is a marital right. A man may not have the right to ‘rape’ their wives, but if she is over 15 years of age and the two are married the courts cannot punish him for doing so. A husband’s ‘marital right’ to sexual intercourse has been recognized, marital rape is not an offence.

The very definition of rape (Sec 375 of IPC) does not consider forced sex by the husband against his wife as rape. “We will be creating a new offence. Who will do that?” the Bench had wondered. The judges had made it clear that they would not go into the question of marital rape in general and as the petition was limited to marital rape explicitly in the IPC, which applied to child marriages. The Delhi High Court on 01.09.2009, issued a notice to the Central Government over a petition seeking an amendment in Section 375 of IPC to criminalize marital rape. The notice was issued through a PIL filed in 2013 seeking to declare Exception 2 of Section 375 A of the IPC as unconstitutional as it discriminates between married and unmarried women. During the hearing of the PIL, the High Court expressed concern that parties are told to compromise to keep the marriage going. A marriage is a bond of trust and that of affection. A bond of physical supremacy, appearing so to others and exercising sexual rights, by any means possible, is not part of a marriage.

Marital rape should be criminalized in Indian law for the following reasons: