Author(s): Abhyudaya Singh and Shruti Singh
Paper Details: Volume 3, Issue 1
Citation: IJLSSS 3(1) 53
Page No: 576 – 587
ABSTRACT
All legal systems that maintain the absence of a legal remedy for marital rape encourage the same age-old spirit that once asserted that consent in marriage is an indelible badge granted and erodes the essence of individual liberty or human rights. In spite of the fact that India has made a leap in relation to various legal reforms such as laws on domestic violence, dowry and women, the immunity of marital rape remains to be the bitterest anomaly. Facts from National Family Health Survey[1] (NFHS-5) that more than thirty percent of married Indian women have suffered violence from husbands highlights the importance of remedying this evil. As Justice Verma expressed it, ‘The dignity of an individual is of the utmost respect and the same shall be for other parties with marriage or without marriage[2].’
This paper tries to understand the broad culture of silence that surrounds instances of marital rape in India and hence marriage in Indian society from a historical cross margin. This paper critiques the legal regime around marital rape and considers international practices, specifically within the Western tradition, while assessing the context of India. It provides a summary of the obstacles facing these efforts, particularly the judicial or social reasons that contributed to the inertia to legislate. The paper also addresses certain constitutional issues concerning the right to equality under the Article 14 of the Constitution of India and Article 21 of the Constitution of India – the right to life with dignity. By challenging the entrenched norms, this research contributes to a more equitable framework.
Keywords- Marital Rape, Exceptions, Consent, CEDAW, Reforms.
INTRODUCTION
‘It is important to acknowledge a married woman’s right to take her abusive husband to court.’ – Justice Rajiv Shakdher.[3]
Marital rape, also known as spousal rape, is nonconsensual sexual intercourse with one’s spouse. Lack of consent is a necessary component in marital rape. It is considered a type of both domestic and sexual abuse. Although sexual intercourse within marriage was once considered a spouse’s right, it is now commonly regarded as wrong and has been criminalized in the majority of states. Women are more likely than men to be victims of marital rape. There have also been incidents of marital rape in same-sex marriages. Marital rape has long been an exemption to anti-rape laws.
Sir Matthew Hale claimed in 1600 CE that any sexual intercourse taking place within a marriage is already consensual, as in marriage, the wife has already given approval to her husband and cannot withdraw it[4].This rule is exceedingly outdated and biassed, because it was enacted at a time when women were viewed as men’s property. However, this outdated norm was generally accepted worldwide until the 1970s, when rape was recognized as a crime against a woman’s liberty and dignity, rather than against her family’s honor. Following this ideological shift, many people accepted that sexual intercourse within marriage was not a right, and couples’ consent was considered. This resulted in extensive reform of marital rape in Europe, and subsequently around the world. Now there are only thirty-six Countries in which marital rape is not illegal.[5]
According to a research published by the National Coalition Against Domestic Violence (NCADV), in the United States, 10% to 14% of married women are raped by their husbands, and at least one-third of all women have reported being subjected to ‘unwanted sex’ by their intimate partners[6]. These estimates are approximately consistent over the world, including India. In comparison, several countries, such as the United States, have criminalised marital rape and sentenced the accused to the same penalty as rape. However, in India, marital rape is not considered a criminal offence. Section 63 BNS(Earlier Exception 2 of Section 375 of the Penal Code of 1860) specifies that ‘sexual intercourse by a man with his wife, the wife not being under the age of 18, is not rape.’
LEGAL AND ETHICAL PERSPECTIVES
Marriage in India is understood to be a sacred institution where the rights and personal choices of individuals are seen to be secondary to the collective good of society. This perception severely influences the way the law perceives marital rape. Marital rape is not deemed a crime unless it is established that one is a minor (i.e., the wife must be under 18 years) because consent was given for any sexual activity (Indian Penal Code, 1860). The reason why the law left out criminalizing marital rape is, therefore, the more archaic conception of ‘marital consent,’ which facilitates the grant of consent automatically through a marriage contract. Consequently, women do not get any protection from sexual violence within marriages. Criticism of this view has been leveled by several scholars and activists from the women rights’ camp, who say that this view denies women any agency and fails to recognize any right for a woman in marriage[7].
According to the CEDAW and other international human rights mechanisms, India has continuously kept marital rape outside the ambit of criminal activity, and there is great backlash from within as well as without against this very fact. Reforms have been demanded repeatedly to amend Section 63 BNS(earlier Section 375 IPC), which basically kept marital rape outside the purview of criminal prosecution. Even if attempts had been made in recent years to reform the law, they have been met with tumultuous, powerful opposition from the so-called conservative corners. They see these moves as downplaying the sanctity of marriage[8]. The resistance stems from cultural beliefs entrenched in the idea that marriage is essentially a realm of sexual submission on the part of the woman before her husband, thus impeding the reforms in favor of women.
The stigma associated with this crime is the most significant challenge to prosecuting marital rape in India. Being too afraid of social ostracism or loss of income, or of being manipulated emotionally, many victims are afraid to speak up. Hence, victims of marital rape often underreport the incidents, and where cases are filed, they are often very difficult to prove as the presence of elements of physical proof becomes nil and emotional dynamics always play a role in intimate relationships[9]. These obstacles demonstrate the need for a law that upholds the importance of consent within marriage, in addition to affording appropriate protection to victims of marital rape.
Ethical theories most concerned with autonomy and individual rights state that consent can only be valid when ex-centric from an emotional connection or marriage; in fact, consent remains a constant process in every other relationship wherein both partners retain the right to say no or withdraw consent at any point.[10]
Marital rape is also a most conspicuous manifestation of gender inequality sunk in Indian society. It is an ongoing narrative that power dynamics in most of the Indian marriages are hugely lopsided in favor of the husband, with the woman mostly expected to submit to her husband’s sexual demands. Many reports state that, in India, women are under constant pressure to please their husbands, which is usually accepted as a natural state; thus, marital rape transitions from being a violent act to a serious domestic affair[11]. In this way, the idea gets reinforced that the desires of women, their freedom, and sexual rights all fall under the husband’s regimentation. Such norms not only infringe upon women’s autonomy but also reinforce patriarchal structures that devour women’s agency in marriage.
Moreover, the failure to criminalize marital rape, ethically, serves to confirm the legitimacy of violence within the institution of marriage. In Indian society, marriage is organized hierarchically, with a wife having to render service or obey her husband. This perception serves to perpetuate gender inequality and makes it extraordinarily difficult for victims to seek justice. There is thus a strong need to change these cultural ideas and delink consent even from a marriage contract, with equal scope given to both parties in a marital relationship to dialect their sexual encounter and decisions thereon[12].
IMPLIED CONSENT VERSUS FORCED COMPLIANCE IN MARRIAGE
IMPLIED CONSENT IN MARRIAGE: LEGACY OF PATRIARCHY
The basis of implied consent lies in the archaic and patriarchal definitions of marriage, in which a wife could be seen to be performing her obligations by consenting to sexual activity with her husband. This view is reflected in the proper provisions under Section 63 BNS(earlier Section 375 IPC), which exempts marital rape from punishment unless the wife is a minor. This legal provision, based on the presumption of consent within marriage, does not seem to understand that coercion may take place, or consent can be withdrawn within marriage. This assumption, having persisted over the centuries, grows out of an ideology of marriage that places the wife’s sexual rights lower than the husband’s duties, further strengthening the gendered power imbalance that militates against women’s independence.
The suggestion of implied consent being conferred upon marriage has a similar basis in antiquated regressive ideas concerning the roles in marriage-that is, women are caregivers and sexual partners, often without any regard for their autonomy or desires. Scholars identify the belief in marriage’s sacramental nature as part of a larger patriarchal structure that, in India, perpetuated gender inequality[13]. Feminist legal scholars have criticized the premise of presumed consent of married women, which is yet another manifestation through which the agency of women is denied and hence creates the space for a blatant form of sexual coercion. As an eminent scholar puts it, “Implied consent is an archaic notion that does not honor the progressive rights of women to govern their own bodies”.[14]
FORCED COMPLIANCE AND ITS LEGAL AND SOCIAL IMPLICATIONS
In direct contrast to consent by implication, forced compliance refers to the circumstances under which a spouse, most commonly a wife, agrees to sexual activity under duress or coercion. Forced compliance, therefore, constitutes an act of marital violence, which is usually sidelined because of certain cultural norms that privilege familial integrity and the sanctity of marriage. In India, forced compliance within the marriage carries serious ramifications for women’s legal rights and their freedom from sexual violence.
Forced compliance is defined within a milieu where marriage is viewed as a bond that cannot be broken, with the sanctity of this institution sometimes given precedence over the rights of individuals who comprise it. Thus, sexual violence at the hands of a spouse is seen as part of a woman’s marital duties, and reporting such acts is associated with social stigma. These continue to perpetuate the normalization of sexual violence in marriage, making other hurdles posse the miles in front of victims of such violence in their quest for justice. Scholars argue that forced compliance in marriage creates a cycle of abuse that is difficult to break because of the lack of legal recognition and social support[15].
Accordingly, the absence of the provision of the law under the head of forced compliance is expressive of the failure of the Indian legal system in safeguarding the sexual autonomy of women. Although rape, in general terms, is criminalized under Section 63 BNS(earlier Section 375 IPC), it, moreover, does not at all defined marital rape, unless the victim is a minor. Alternatively, this could mean that women in India, even if coerced, are legally bound to yield to the sexual demands of their husbands. The persistent pressure from activist parties and other organizations has now prompted calls for legal reform to recognize forced compliance within marriage as a type of sexual violence and modify existing laws to ensure adequate legal recourse for victims of marital rape.
THE NEED FOR LEGAL REFORM AND SOCIETAL CHANGE
Legal and social reforms must be tackled in India to deal with the implied consent and forced submission during marriage. On the legal front, the Indian Penal Code must be amended to make marital rape a crime in all possible ways, thus negating the assumption of consent and allowing recovery for victims of forced compliance. It would bring India in line with international human rights norms, particularly CEDAW, which requires the criminalization of all gender-based violence, including marital rape[16].
From the societal end, the conceptualization of marriage and consent needs to change. The long-held value that a wife must yield to her husband’s sexual demands, no matter what her personal wishes or autonomy might be, should be challenged. As it has been argued by scholars, “the changing of social norms and values governing marriage is imperative to eliminate forced submission and advance a culture of mutual respect and consent within marriages” [17]
CASE STUDIES AND IMPLICATIONS OF MARITAL RAPE
The issue of marital rape has become an extremely controversial and salient issue in India-from legal, social, and indeed even ethical perspectives. Despite the increasing consciousness about women-their rights, sexual exploitation within marriage is still excluded under rape law in India. The paper throws light on a few significant case studies that reflect the consequences of this legal gap, while simultaneously attaching to the all-encompassing social and ethical consequences marital rape creates in India. Such cases portray the dreadful repercussions of forced sexual compliance within marriage onto the lives of women, necessitating appropriate legal reforms.
The judgment that marked a significant triumph for limiting the cruelty of marital rape in India was that in Independent Thought v. Union of India, whereby the court considered, upon an appeal, that when sexual intercourse is conducted with a wife below eighteen years, such an act should stand as rape, even if the husband claims it was done with the consent of his wife. The judgment responded to a petition seeking to strike off the legal provision that excludes marital rape in Section 375 IPC. It was a progressive step towards recognizing the sexual autonomy of minors in marriage, in tandem with international standards established by the CEDAW that insist that each and every form of sexual violence, including marital rape, must be criminalized.
However, this case showcased the larger problems inside the Indian legal system concerning marital rape. While it proved a battle won in favor of the protection of minors, the Court refused to entertain the issue of marital rape for women of age above eighteen years, thus enhancing the notion of consent implied in adult marriages. The judgment also exposed the tension between the legal reform and the definition of a marriage sanctified by societal views, since some conservative groups in India expressed concerns that such a step would disrupt the traditional structure of families.
This case shows the inconsistent application of the law and the need for a thorough reform of the definition of consent within the institution of marriage. It indicates that while on the way to recognizing certain rights, there are systemic and cultural obstacles that continue to impede broader reforms in law. The implications of the case are extensive, provided that it stresses upon the need to urgently widen the scope of the protective provisions under the law for all women of all ages in the context of marriage.[18]
In the case of Nimeshbhai v. State of Gujarat[19], the High Court of Gujarat addressed the subject of marital rape within the overall direction of domestic violence. The case involved a wife who was subjected to multiple acts of physical and sexual abuse and coercion from her husband. The wife claimed that her husband had forced himself on her and had used force to accomplish this, notwithstanding her objections. The court eventually decided to quash charges against the husband considering the absence of eyewitnesses to the alleged incident of physical violence. This point forms an important obstacle often faced by victims of marital rape: that it is notoriously hard to prove rape to the satisfaction of a court in the absence of physical evidence.
The case adds to the intricacies of social and legal battles surrounding marital rape cases, providing one grimmer indicator informing a reality of lack of justice stymied by the biases of society, which will view marriage as a private matter. The wife in this case was faced with insurmountable barriers in her quest for justice, since the court insisted on visible evidence of violent acts, which is rarely seen in cases of matrimonial rape. Existence of the societal stigma against divorce and marital disharmony gave her an additional, insurmountable layer of difficulty when taking a stance. This further mirrors the attitudes that pervade the culture within which sexual violence and other forms of oppression have traditionally been covered up.
The Nimeshbhai case showcases the restrictions that face women who seek remedies against violence or sexual violence against women in marriage. Even though the Protection of Women from Domestic Violence Act[20] offers some modicum of protection, the fact is that it does not expressly criminalize marital rape. The limitation on the definitions will leave no recourse for women in cases where physical violence is an absence in marital rape issues. It is apparent that the case proves the urgency of the situation: a legal definition and mechanism most specifically cover martial rape, with detailed descriptions, so that women who may not even have visible bruises and hurt will be protected from coercive marital sex.
The case of Sarla Mudgal v. Union of India (1995)[21] basically concerned issues regarding threats of bigamy and what was to be the position of marriages between Indian citizens and foreign nationals; however, it also raised questions about the nature of consent in marriage, especially with reference to polygamous relationships, albeit in an indirect way. In this context, the Supreme Court of India acknowledged the value of individual autonomy in a marital partnership in relation to women’s rights. Although the case did not directly concern marital rape, several issues concerning women’s autonomy, sexual rights, and the acknowledgment of women’s agency in marriage were raised in it.
The case has enormous but indirect implications concerning marital rape. It argued for legal recognition of the autonomy and agency of women in all forms of marriage, especially within the context of polygamous and patriarchal marriage, where oftentimes consent could not be given or was coerced. The Sarla Mudgal case, also, thus, reminds us of the wider historical reality of women in marriage, where it is cultural norms that predominantly define the limits of their consent.
The foregoing case studies mirror the widespread implications attached to the practice of marital rape across India, arising from a combination of legal and social histories. Due to the non-criminalization of marital rape in India, there exists a profound effect on the protection of women’s rights, and an offering as to what has been foreseen in their favor. This nourishes the belief that marriage is a sanctified institution in which consent for sex is presumed, questioning this thinking would put at risk valued married relationships. This belief does not take into cognizance real instances of coercion, violence, and sexual exploitation that many married women experience.
Socially, normalization follows ideas put through patriarchal values that nurse and prioritize the family institution over individual rights. For victims of marital rape, barriers to reporting marital rape include fear of social ostracism, financial insecurity, or stigma associated with divorce. These barriers are also elevated by lack of institutional support coupled with the perception that marriage is a private affair into which legal authorities should not interfere.[22]
LEGAL FRAMEWORK AND REFORM ON MARITAL RAPE IN INDIA
Rape is defined as a non-consensual sexual act under Section 63 BNS(earlier Section 375 IPC) of the Indian Penal Code. This section, however, has a significant exception concerning marital rape-by making it legal to coerce consent from below-fifteen married women. Under Section 65 BNS(Section 375(2) IPC), “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” This exception creates an age-old and patriarchal view that a woman, once married, is bound to consent to sexual intercourse. Thus, Marital rape does not fall within the ambit of criminal laws unless the wife is a minor and husbands can, therefore, enjoy impunity if they assault their wives[23].
This exclusion of marital rape from the definition of rape has attracted fierce criticism from feminist activists and scholars of law. Many people argue that this provision violates basic human rights of women and right to bodily autonomy. The failure of India to criminalize marital rape represents a failure on the part of India to meet international human rights standards, such as those set down in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which affirms that all forms of gender-based violence should be criminalized, including marital rape[24]. By not protecting women against sexual assaults within marriage, India lags far behind many other nations that have reformed their laws to regard martial rape as a crime.
DIFFICULTIES IN LEGAL CHANGE
The structural challenges to enacting laws on marital rape in India involve tedious cultural and societal treatment of marriage. In traditional Indian society, marriage is oftentimes treated with such reverence that sexual relations with a married woman are thought to fall in the husband’s domain. These cultural aspects hinder the recognition of marital rape as a legitimate crime and often lead to a blaming of the victim, a belief held by society that a wife must submit sexually to her husband as an obligation of marriage.
Furthermore, the Indian legal system functions upon a backdrop of upholding family unity and societal norm against individual rights. This has the direct effect of making the question of the marital rape be seen more as a marital issue, to be settled between partners, rather than a criminal event that must be prosecuted by law. This normative framing of marital rape has rendered it outside the scope of an offence under criminal law and has also discouraged the reporting of such violence by women, who dread ostracism and stigma[25].
CALLS FOR REFORM
The issues surrounding the reform of India’s laws on marital rape remain in vogue. In 2017, the Law Commission of India recommended the criminalization of marital rape, but upon receiving tremendous backlash from traditional groups, who contested the oppositional views that supported the criminalization of marital rape, marriage’s sanctity and the harm this could cause to family structure could not be questioned further. Nevertheless, women’s rights organizations have espoused marital rape as a gross violation of a woman’s bodily autonomy and, as such, should be treated as a crime irrespective of the marital status of the woman[26].
The Indian judiciary also took the matter into consideration. In Independent Thought v. Union of India (2017), the Supreme Court ruled that sexual inter-course with a wife below the age of 18 is considered to be rape, thus directing the direction regarding marital rape towards minors. The Court did not go as far, however, to treat the issue of marital rape with respect to adult women but instead effectively left the legal scenario intact[27].
CHANGES IN THE BHARATIYA NYAYA SANHITA: EXPECTATIONS, ACHIEVEMENTS, AND CRITICAL ANALYSIS
Bhartiya Nyaya Sanhita (BNS), which has been proposed as a substitute to the IPC, has really carried a lot of hopes of serious improvements in the criminal justice system. It was drummed all a loud and clear: “it shall reopen cases of such matters,” a reference to arresting on spot treatment of marital rape. Certainly, the BNS affirms that rape by a husband against the wife is also a criminal offense and provides greater protection for women’s bodily autonomy. Yet, the proposal leaves a lot of debate on certain negatives: it has failed to explicitly criminalize marriage rape as a criminal offense and does not provide sufficient protection through legal means.
EXPECTATIONS
The Bhartiya Nyaya Sanhita legislation inspired hope in women’s rights groups, as they hoped that finally one of the oldest social issues-the marital rape, as they would say- would be resolved. And really, the expectation was that it would add new provisions to Section 63 BNS(earlier Section 375 IPC) that expressly limits marital rape beyond the age of 15 years to relax the existing law. In general, such amendment may have included definition of agency among spouses as the earlier one violated all human rights, worldwide, including CEDAW, into married rape where it would have seen that marital rape should equally apply like any other rape.
ACTION TAKEN
To that respect, the draft bill went further to state that marital rape is hereby deemed a criminal act. It recognized that indeed sex may need some consent even in marriage, if at all there is marriage with regards to minors. It involves an amendment that established that rape should be considered where it occurs in the spouse below the age of 18 in a matrimonial relationship, since recognition of a provision to the same effect continued for adult women. Since marital rape is criminalized and no reform is being made within the public law paradigm through Section 376B IPC, the public appears to be less enlightened on this area despite the rising offense rate.
CRITICAL ANALYSIS
Although these initiatives are a step toward institute legal reforms, since they relate with changes required within constitutional law, amendments are not sufficient to regulate sexual violence within the household legally. If Section 376B IPC penalizing marital rape is not effective, then statute is unable to enlighten society adequately with reference to it as a growing crime.
CONCLUSION
In conclusion, one of the most critical and epistemological intersections in marital relationship concerns what it symbolizes in terms of consent and coercion differences and imposition of autonomy. In the discussion, much has been focused on the shibboleth-also because it would appear, social norms often interact with complex systems of law interacting with individual rights and in ways that often demonstrate how closely marriage relationships literally smirk at an entitlement to consent and its automaticity. Silence or submission in a marriage relationship as meaning consent equates to a formidable myth, quite unjustified, which only serves to debase bodily and personal dignity. Through this belief, the law is not protected by any rights that it is supposed to safeguard by excluding marital rape from the scope of the criminal definition of sex violence. Therefore, the legal approach needs not mere change in the legislation, but a change in the form of behavior in marriage. It practically means framing spousal autonomy in the form of mutual respect that is based on consent-not taken for granted as automatic compliance. Thus, only in such an evolved perspective can there be Antigone legal frameworks be built on to protect the rights and freedoms of the single person irrespective of marital status and to vindicate personal autonomy in the most intimate relations.
[1] Ministry of Health and Family Welfare. (2021). National Family Health Survey (NFHS-5, 2019–21). Government of India.
[2] Justice Verma Committee. (2013, January 23). Report on amendments to criminal law. Ministry of Home Affairs, Government of India.
[3] The Times of India. (2022, May 12). Wives have the right to bring errant husbands to justice. The Times of India. Retrieved January 8, 2025
[4] Spousal rape: The uncommon law. (1980, September). American Bar Association Journal, 66.
[5] India Today. (2016, March 12). Marital rape is not a crime in 36 nations, including India. India Today.
[7] Sharma, A. (2017). “Legal Reforms for Marital Rape: A Critical Review.” Indian Journal of Law and Social Sciences, 10(2), 12-30.
[8] Hazarika, R. (2018). “The Legal Landscape of Marital Rape in India.” South Asian Legal Review, 22(1), 111-130.
[9] Bose, S. (2020). “Marital Rape in India: Legal and Social Implications.” Journal of Indian Law and Society, 12(3), 54-67.
[10] Panchal, P. (2020). “Consent, Autonomy, and Marital Rape in India.” Journal of Feminist Ethics, 15(2), 45-60.
[11] Raj, A. (2018). “Gender Inequality and Marital Rape in India.” Social Justice Review, 5(2), 83-98.
[12] Bose, S. (2020). “Marital Rape in India: Legal and Social Implications.” Journal of Indian Law and Society, 12(3), 54-67.
[13] Raghavan, K. (2020). Women, marriage, and autonomy: A socio-legal perspective on marital rape in India. Bangalore: Sage Publications.
[14] Singh, R. (2019). Implied consent and the failure of legal protections for women in marriage. Journal of Indian Law and Social Change, 14(2), 34–47.
[15] Bose, S. (2021). Marital rape and gender justice: Legal and social implications. New Delhi: Oxford University Press.
[16] United Nations. (1979). Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
[17] Chandra, P. (2020). Transforming marital relationships: The need for legal and social reforms. Indian Journal of Gender Studies, 27(3), 220–240.
[18] Independent Thought v. Union of India, (2017) 10 SCC 800.
[19] Nimeshbhai v. State of Gujarat, (2020) 5 GLR 3521.
[20] Protection of Women from Domestic Violence Act, 2005, No. 43 of 2005, Gazette of India.
[21] Supreme Court of India. (1995). Sarla Mudgal v. Union of India, 3 SCC 635.
[22] Raghavan, K. (2020). Women, marriage, and autonomy: A socio-legal perspective on marital rape in India. Bangalore: Sage Publications.
[23] Indian Penal Code, 1860, § 375.
[24] United Nations. (1979). Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
[25] Bose, S. (2021). Marital rape and gender justice: Legal and social implications. New Delhi: Oxford University Press.
[26] Sharma, R. (2017). Legal and social dimensions of marital rape in India. Journal of Indian Law and Social Change, 18(3), 98–112.
[27] Supreme Court of India. (2017). Independent Thought v. Union of India, 10 SCC 800.