Marital Rape: Does marital status legalize and give license to have sexual intercourse without the spouse’s consent?

Let’s start by quoting the Exception 2 of Rape defined in Section 375 of the Indian Penal Code under the head of “Sexual Offences” which says it loud and clear that “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”. The focus here is to be put on 3 phrases;

First, is the phrase “Sexual intercourse by a man with his own wife”;

Second, is the age criteria of “wife not being under fifteen years of age”; and
Third, is the phrase “not rape”.

If we go on to interpret and understand this provision, the loopholes are crystal clear. But before discussing this section, let us first understand the concept of marital rape, also known as spousal rape.

Marital rape or spousal rape is the act of sexual intercourse with one’s spouse without the spouse’s consent. The lack of consent is the essential element. Marital rape is considered a form of domestic violence and sexual abuse. If we go back to our historic era, which was no doubt rich and fertile, but the position of women has not been very promising since the ancient times. The reason for it being the patriarchal society clubbed with the narrow-minded outlook and conservative thinking of the people of the society which not only includes men but most of them believing that there’s no such concept of marital rape are women.

Historically, sexual intercourse within marriage was regarded as a right of spouses, engaging in the act without the spouse’s consent which is now widely classified as rape by many societies around the world, repudiated by international conventions, and increasingly criminalized but yet in India there are no law provisions related to the marital rape bringing it under the ambit of criminal jurisdiction.

Now, coming back to the loopholes in Exception 2 of Section 375 of the Indian Penal Code, 1860;

The first one saying “Sexual intercourse by a man with his own wife”, discussing it with reference to marital rape which is and should be particularly gender neutral, i.e., it is not necessary that women are the only victims of marital rape. Although most of them constitute women, men are also subject to marital rape by their own wives. It may be considered a myth or a misconception that more than half of the population of India might have this notion that only females are subject to marital rape.
There are cases where men are subject to sexual intercourse without their consent by their own wives but these cases do not come to the forefront due to lack of legislation regarding marital rape and of course there are other factors too, among which one of them includes the media coverage in such cases where men are victims which is extremely low.

The second one is the phrase saying “wife not being under fifteen years of age”, which includes large number of factors but talking with reference to marital rape, the society’s notion at large is that mere marriage or marital status gives a license to the husbands of doing whatever they want to do with their wives and therefore leading to increasing number of cases related to domestic violence and sexual abuse against women.
If we analyze the present condition of covid-19, during lockdown the number of cases of crime against women took a great spike including massive number of cases of marital rape unfortunately resulting in huge number of unwanted pregnancies among women. Then the age criterion of “under fifteen years of age” is in itself a big question mark for both the Indian judiciary as well as the legislature. Most of the women are either unaware of their rights or they are suppressed by the society.

The third phrase says “not rape”. The Indian judiciary is still silent on criminalization of marital rape. Thus, marital rape is not a criminal offense under the Indian Penal Code. Marital rape victims have to take recourse to the Protection of Women from Domestic Violence Act, 2005 (PWDVA).

Mere marriage does not give spouses the legal right to have unwilling sexual intercourse with their spouses without their consent, which amounts to marital rape. Marital rape not only violates fundamental and human rights but also violates the bodily integrity of a person. The victims of marital rape account for more than 75 per cent of women rather than men. Although the government’s various initiatives and policies have led to massive women empowerment yet most of the women are unaware of their basic human rights, which mostly include the underprivileged or marginalized sections of the society. Therefore, there need to be concrete laws regarding marital rape and hence making it a criminal offense under the Indian Penal Code.

If we further examine the constitutional validity of Exception 2 of Section 375 of the Indian Penal Code;

Violation of Article 14 of the Indian Constitution:

Exception 2 violates the right to equality enshrined in Article 14 as it discriminates against married women by denying them equal protection from rape and sexual harassment by their own husbands.

Violation of Article 21 of the Indian Constitution:
Exception 2 is also in violation of Article 21, i.e., Right to life and personal liberty. In the case of State of Karnataka v. Krishnappa (2000) 4 SCC 75 (India), the Supreme Court held that “sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female”. In the same judgment, it held that non-consensual sexual intercourse amounts to physical and sexual violence.
- In Suchita Srivastava v. Chandigarh Administration (2008) 14 SCR 989 (India), the Supreme Court equated the right to make choice related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.
- Most recently, the Supreme Court has explicitly recognized in Article 21, a right to make choices regarding intimate relations. In Justice K.S. Puttuswamy (Retd.) v. Union of India (2017) AIR 2017 SC 4161 (India), the Supreme Court recognized the right to privacy as a fundamental right of all citizens and held that the right to privacy includes; “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations”.
- Forced sexual cohabitation is a violation of that fundamental right.
- It also violates Article 21’s right to live a healthy and dignified life. Yet the very existence of Exception 2, which fails to deter husbands from engaging in acts of forced sexual contact with their wives, adversely affects the physical and mental health of women and undermines their ability to live with dignity.

As per current law, a wife is presumed to deliver perpetual consent to have sex with her husband after entering into marital relations. While unwilling sexual contact between a husband and a wife is recognized as a criminal offense in almost every country of the world, India is one of the thirty-six countries that still not have criminalized marital rape. Therefore it is time that Indian jurisprudence understands the inhumane nature of this provision of law and strikes it down. After reading down Section 377 of the Indian Penal Code and legalizing consensual sex between same sex people, India is now hoping for further concrete laws among which is criminalizing marital rape.