Open Access Research Article
White Black Legal – International Law Journal · ISSN 2581-8503
Criminalisation of Marital Rape: Bodily Autonomy Matters of Women in Matrimonial Relationship
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Abstract
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Page 1 of 27
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AUTHORED
BY - AYUSH KUMAR PRAJAPATI
(A 2nd Year of BA LL.B.
Student of Shobhit
University, Meerut)
INDEX
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CONTENT
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Introduction
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Meaning Of Marital Rape
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Types Of Marital
Rape
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Status Of Marital Rape
In India
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Theories In Respect
Of Marital Rape
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Judicial Interpretation
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Why Marital
Rape Should Be Criminalized
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Existing Remedy For Marital Rape Victim
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Recent Development
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Conclusion
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References
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INTRODUCTION
Rape is a heinous
act of sexual intercourse committed against any natural
person forcefully without the consent of such person against
whom it is committed. In other words,
Rape is a type of sexual
assault involving sexual intercourse, or other forms of sexual penetration,
carried out against a person without their
consent. It may be carried
out by physical force, coercion, abuse of authority, or against a person who is incapable of giving valid consent, such as one who
is unconscious, incapacitated, has an intellectual disability, or is below the
legal age of consent.
Lack of consent is key to the definition of rape. Consent
is affirmative “informed approval, indicating a freely given agreement” to
sexual activity. Lack of consent may result from either forcible compulsion by the perpetrator or an inability
to consent on the part of the victim (who are
asleep, intoxicated or otherwise mentally compromised). Sexual intercourse with
a person below the age of consent, i.e., the age at which legal
competence is established, is referrred to as
statutory rape.
Section 63 of the Bharatiya Nyaya Sanhita, 2023 (in short
‘BNS’), the corresponding provison under the Indian
Penal Code, 1860 is Section
375, defines rape strictly as a crime committed by a
man against a woman. Section 63 of
the BNS states that,
63.
A man is said to commit
“rape” if he—
a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
b) inserts, to any extent, any object
or a part of the body, not being the penis,
into the vagina, the urethra
or anus of a woman or makes her to do so with him or any other person; or
c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body
of such woman or makes her to do so with him or any other person; or
d) applies his mouth to the vagina, anus, urethra of a woman or
makes her to do so with him or any other person, under the circumstances falling
under any of the following
seven descriptions:—
i.
against her will;
ii.
without her consent;
iii.
with her consent, when her consent
has been obtained by putting her or any person in
whom she is interested, in fear of death or of hurt;
iv.
with her consent, when the man knows that he is not her husband
and that her consent is given because she believes
that he is another man to whom she is or believes herself to be lawfully
married;
v.
with her consent when, at the time of giving such consent, by reason of unsoundness of mind
or intoxication or the administration by him personally or through another
of any stupefying or unwholesome substance, she is unable to understand
the nature and consequences of that to which she gives consent;
vi.
with or without her consent, when she is under
eighteen years of age;
vii.
when she is
unable to communicate consent.
Explanation 1.—For the purposes of this section,
“vagina” shall also include labia majora.
Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by
words, gestures or any form of verbal
or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be
regarded as consenting to the sexual activity.
Exception 1.–A medical
procedure or intervention shall not constitute rape.
Exception 2.–Sexual
intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.
MEANING OF MARITAL
RAPE
Marital Rape, or Spousal Rape or
inmate partner rape, is non-consensual sex in which the perpetrator is the
victim’s spouse. Marital Rape is deemed to be a domestic violence, or sexual
abuse. However, if a couple
is married, but living separately, then the husband
is guilty of rape if his wife does not consent to sexual intercourse. Marital
rape is often a chronic form of violence for the victim which takes place
within abusive relations.
Types of Marital Rape: - Marital rape may be broadly classified into following two categories;
i.
Sexual coercion by non-physical means- this form of coercion involves social coercion in
which the wife is compelled to enter into sexual intercourse by reminding her
of her duties as a wife. This form of coercion entails applying
non-physical techniques and tactics like verbal
pressure in order to get into sexual
contact with a non-consenting female. The most commonly used
non-physical techniques include making
false promises, threatening to end the marital relationship, lies, not conforming to the victim’s protests to stop, etc. Such acts of sexual coercion by the use of non-physical stunts though considered less severe in degree as
compared with physically coercive sexual acts
are widespread and pose a threat to
the women’ right in the society.
ii.
Forced Sex:- this involves the use of physical force to enter into sexual intercourse with an unwilling women. It can further classified
into the following three categories;
a)
Battering Rape:-
this form of rape involves the
use of aggression and force against the wife.
The women are either battered
during the sexual act itself or face
a violent aggression after the coerced sexual
intercourse. The beating may also occur before the sexual assault so as to
compel her into sexual intercourse.
b)
Force Only Rape:- in this form of rape,
the husband does not necessarily batter the wife, but uses as much force as is necessary to enter into sexual intercourse with the unwilling wife.
c)
Obsessive Rape:-
this form of rape involves the use of
force in sexual assault compiled with the perverse act against the wife. It involves a kind of sexual
sadistic pleasure enjoyed by the husband.
Marital rape is common but it is only an un-reported crime. In a study conducted by the Joint Women Programme, an NGO found that
one out seven married women had been
raped by their husband at least once.
In the case of the People
v. Edgar, The New York Court of Appeals declared the marital rape exception as unconstitutional,
stating that, “Rape is a crime that evokes global condemnation
because it is an abhorrence to women’s value and dignity as a human being. It respects no time, place, age, physical condition or
social status. It can happen anywhere and it can happen to anyone. … Husbands are once
again reminded that marriage is not
a license to forcibly rape their wives. A husband does not own his
wife’s body by reason of marriage. By marrying, she does not divest herself of
the human right to an exclusive autonomy over her own body and thus, she can lawfully opt to give and
withhold her consent to marital coitus. A husband aggrieved by his
wife’s unremitting refusal to engage in sexual intercourse cannot resort
to felonious force or coercion to
make her yield. … Sexual intimacy is an integral part of marriage because it is the spiritual and
biological communion that achieves the marital purpose of procreation. It entails mutual love and self-giving and as such it contemplates only mutual sexual
cooperation and never sexual coercion or imposition. …”
According to Morton Hunt, an American Psychologist and Science Writer
of U.S.A., “the typical
marital rapist is a man who still believes that husband are supposed
to rule their wives. This extends, he feels, to sexual matters: when he wants her, she should be glad, or at least willing,
if she is not, he has the right to force her. But in forcing her, he gains far more than a few minutes of sexual pleasure. He humble her and reasserts, in the most emotionally powerful
way possible, that e is the ruler and she is the subject.”
Marital rape is a widespread problem
for a woman that has existed
for centuries throughout the world. This problem has received relatively
little attention from the criminal
justice system and
the society as a whole. While traditionally regarded as a right
of husbands, the act is widely -
considered as rape in modern
times and is becoming increasingly criminalized by many countries’
laws.
A women in this country can protect
her right to life and liberty, but not her body, within her marriage. If the husband
lays an assault
on her wife, then that would constitute an offence under the BNS. If the very same husband lays an assault
and forces his wife to have sexual
intercourse, he would be liable for assault but not for an offence
of rape only because there is a valid marriage between the two.
In December 1993, the United Nations
High Commissioner for Human Rights
published the Declaration on the Elimination
of Violence against Women. This establishes
marital rape as a human right
violation. This is not fully
recognized by all the UN member States.
In 1997, UNICEF reported that just 17 states had
criminalized marital rape. In 2003,
UNIFEM reported that more than 50 states
did so. Thus, Marital
rape is illegal in 50 American states, 3 Australian states,
New Zealnd, Canada, Israel, france, sweeden, Denmark, Norway, Soviet
Union, Poland, and Czechoslovakia. The issues
of sexual and domestic violence
within marriage and the family unit,
and more specifically, the issue of violence against women, have come to growing international attention from
the second half of the 20th century.
STATUS OF MARITAL RAPE IN
INDIA
India is one of the thirty-six countries that still have
not criminalized marital
rape. The definition of rape codified in Section 63
of the BNS, includes all forms of
sexual assaults involving
non-consensual intercourse with a women.
However, Exception 2 of the Section 63 exempts unwilling sexual intercourse between a husband
and a wife over eighteen years of age from Section 375’s definition of “rape”
and thus immunizes such acts from prosecution.
The 172nd Law Commission
report had made the following recommendation for a substantial change in respect of the provision of
marital rape, “explanation (2) of
Section 375 of IPC should be deleted.
Forced sexual intercourse by a husband
with his wife should be treated equally
as an offence just as any
physical violence by a husband against the wife is treated as offence.
In 23rd December, 2012,
Justice Verma Committee was
constituted by the Central Government
after the rape of a 23 year old student.
The committee was asked to look into
the possible amendments in the criminal laws related to sexual violence against women. The committee was conscious of the recommendations in
respect of the India made by the U.N. Committee on the Elimination of
Discrimination against women in February 2007. The CEDAW committee recommended that the country
should “widen the definition of rape in its penal code to reflect the realities of sexual abuse experienced by women
and to remove the exception of marital rape form the
definition of rape…”
The Verma Committee report points out a 2010 study
suggesting that 18.8% of the women
are raped by their partners on one or
more occasion. The rate of reporting and conviction also remains
low; aggravated by the prevalent
beliefs that the marital rape is acceptable or is less serious than the other types of rape. The committee notes:
“changes in the law therefore need to be
accompanied by widespread measures raising
awareness of women’s right to autonomy and physical
integrity, regardless of marriage or other intimate relationship.”
Rashida
Manjoo, the UN
Special Repporteur on violence
against women said that the Justice
Verma Committee’s recommendation and subsequent legislation was a “golden
moment for India” but the recommendations on marital rape age of consent for sex, etc. were not adopted in the Legislation.
husband as perpetrators. The form of
sexual violence most commonly reported
by women is that their husband
used physical force to have sexual intercourse when they did not want to (5%). Four
percent reported that their husband forced them with threats or in other ways to perform sexual acts they did not want to, and two percent reported
that their husband
forced them to perform any sexual acts they did not want to, as
per report, NFHS-5.
In
2005, the Protection of Women from Domestic Violence
Act, 2005 was passed which
although did not consider
marital rape as a
crime, yet did consider it is form of domestic
violence. Under this Act, if a
women has undergone marital rape, she can go to the court and obtain judicial separation form her husband. This is
only a piecemeal legislation and much more needs to be done by the parliament in regard to
marital rape.
According to the UN Population Fund,
more thans two-third
of the married women in India, aged between 15 to 49, are severely
beaten, or forced to provide sex. In
2011, the International Men and Gender
Equality Survey revealed that one in five had forced their wives or partner to
have sex. The United Nations published a report stipulating that 69% of
the Indian women believe
that occasional violence is resorted to when a meal hasn’t been prepared
in time or when sex has refused.
Further statistical research reveals that 9 to 15% of the married women are subjected to rape by their husbands, a staggering and sobering statistic.
Zakiya Luna has, in a 2020
publication, argued that reproduction
is both biological and political. According to Luna, it is
biological since physical bodies reproduce, and it is political since the decision
on whether to reproduce or not is not solely
a private matter.
This decision is intimately
linked to wider political, social, and economical structures. A women’s role
and status in family, and society generally, is often tied to childbearing and
ensuring the continuation of successive generation.
THEORIES IN RESPECT OF MARITAL RAPE
Various authors, over a period of
time, have come up with different theories regarding the occurrence of marital
rape in the society:
i.
The Feminist Theory: this theory considers
marital rape as a tool in the
hands of the patriarchal society that
is used to exercise control over the
women. They consider that the exemption given in cases
marital rape is a remnant
of the earlier laws regarding
women that considered them to be the property of the husband. The
feminists are of the view that marital rape is
nothing but a result of a power play by the male spouse in the marriage. Radical feminists have gone to the extent of arguing
that any form of heterosexual is based mainly on the basis of the man and is another form of oppression on women.
ii.
The Social Constructionism Theory: the believers in the theory
of social constructionism are of the view that men have dominated the society in law making and the political arena since time memorial. Law thus came as a
reflection of the interest of men.
Such laws considered women to be their husband’s property after marriage and hence, marital
rape was considered an offence of lesser degree as compared to rape.
Some jurisprudence even considered that rape in a marriage
is not rape at all. The social constructionism believe
that marital rape is a means
through which men try to assert themselves
over their wives so as to retain their
long gained power over their property.
iii.
The Sex-Role
Socialization Theory: these theorists
believe that it is the particular gender roles which guide the sexual interactions between the spouses
in a marriage. In a marriage,
woen are always taught to be dominant and aggressive. Care and love are
attributed to women, Man, on the hand, are
the major perpetrators of sexual entertainment with violent
themes. Sex role socialists are of the view that marital rape is nothing but an expression of the traditional
perception of sex roles.
JUDICIAL INTERPRETATION
A
woman is no longer the chattel-antiquated practices labeled her to be. A husband who has sexual intercourse with his wife
is not merely using a property, he is fulfilling a marital
consortium with a fellow human being with dignity equal to that he
accords himself. He cannot be permitted to violate this dignity by coercing her
to engage in a sexual act without her full and free consent.
Further, the delicate and reverent nature
of sexual intimacy
between a husband
and wife excludes cruelty and coercion. Sexual
intimacy brings spouses wholeness and oneness. It is a gift and a participation in the mystery of creation. It is a deep sense of
spiritual communion. It is an
expressive interest in each other’s feelings at a time it is needed by the
other and it can go a long way in deepening marital relationship.
Besides, a husband who feels
aggrieved by his indifferent or uninterested wife’s absolute refusal to engage
in sexual intimacy may legally seek the court’s intervention to declare her
psychologically incapacitated to fulfill an essential marital obligation. But
he cannot and should not deemed sexual intimacy from her coercively or
violently.
The human rights of women include
their right to have control over and decide freely and responsibly on matters related
to their sexuality, including sexual and reproductive health,
free of coercion,
discrimination and violence. Women do not divest themselves of such right by
contracting marriage for the simple reason that human rights are inalienable.
In the case of the Anjanaben W/o Bhavinbhai Devshankarbhai
Modha v. State of Gujarat, the Gujarat High Court said that,
“… The Constitution treats women equal to man and considers
marriage as an association to equals. The Constitution does not in any sense
depict the woman to be subordinate to a man. The constitution guarantees fundamental rights
under Articles 14, 15, 19 and 21 which are right to live with dignity,
personal liberty, bodily integrity, sexual autonomy, right to reproduction choices,
right to privacy, right to freedom of speech
and expression. Under the Constitution, the right are equal; protection
is also equal.
… Therefore, a man sexually or
raping a woman is amendable to punishment under Section 376 of IPC. In most of
the cases of such a nature, the usual
practice is that if the man is the husband, performing the very same acts as that of another man, he is exempted. In my considered view, the same cannot
be countenanced. A man is man; an act is an act; rape is a rape, be it performed by a man the
“husband” on the woman “wife”.”
In
India, the culprits
are often known
to the woman; the social
and economic “costs”
of reporting such crimes are
high. General economic dependence on family and fear of social behaviour.
Therefore, the actual incidence of violence against women in India is probably
much higher than the data suggests, and women may continue to face hostility
and have to remain in environments where they are subject to violence. This
silence needs to be broken. In doing so, men, perhaps more than women have a duty and role to play in averting
and combating violence
against women.
The United Nations Organisation has
defined “violence against women” as “any act of gender based violence that
results in, or is likely to result in, physical, sexual or psychological harm
or suffering to women, including threats of such acts, coercion or arbitrary
deprivation of liberty, whether occurring in public or private life.” The
effects of offensive behaviour against women, which laws criminalize physical,
verbal, or other acts, which threaten or give them acute discomfort, undermining their dignity, self-worth and respect, is to silence
or subdue the survivor.
In
the case of the Karan Daljit Ganbhir
S/O Daljit Ganbhir
v. State of Gujarat, The Gujarat
High Court stated that “No doubt,
marriage has been seen as an automatic grant of sexual
consent since decades, however,
the modern legal frameworks increasingly recognize
the bodily freedom of an individual, even within a marital relationship. Intimacy is normal
between every married
couples, however, the same has to be a consensual and mutually respectful act. Having an unnatural sex by
any spouse against the will and wish
of other partner not only cause
immense physical pain but it also gives mental, and emotional trauma to the
unconsented spouse. …”
In the case of the X v. Principal Secretary, Health and
Family Welfare Department, Govt. of NCT
of Delhi & Anr., The Supreme Court of India observed
that, “Married women
may also form part of the class of survivors
of sexual assault
or rape. The ordinary meaning
of the word ‘rape’ sexual intercourse with a person,
without their consent
or against their will,
regardless of whether such forced intercourse occurs in the context of matrimony.
A women become pregnant as a result
of non-consensual sexual intercourse performed upon her by her husband. He
would be remiss in not recognizing that intimate partner
violence is a reality
and can take the form of rape. The misconception that strangers are
exclusively or almost exclusively responsible for sex- and gender based violence is a deeply regrettable one. Sex- and gender based violence (in all its forms)
within the context of the family has long
formed a part of the lived experiences of scores
of women.”
Further stated that, it is not inconceivable that married women
become pregnant as a result of their husbands having “raped” them.
The nature of sexual violence
and the contours
of consent do not
undergo a transformation when one
decides to marry. The institution of marriage does not influence the answer to the question
of whether the women has consented to sexual relation.
If the women is in an abusive relationship, she may face
great difficulty in accessing medical resources or consulting doctors.
The ambit of reproductive rights is
not restricted to the to the right of women to have or not have children. It
also includes the constellation of freedoms and entitlements that enable a women to decide freely on all matters relating to her sexual and reproduction health.
Reproductive rights include the right to access education and information about
contraception and sexual health, the right to decide whether and what type of
contraceptives to use, the right to choose whether and when to have children,
the right to choose the number of children, the right to access safe and
legal abortions, and the right
to reproductive healthcare.
Women must also have the autonomy to
make decision concerning these rights, free from coercion or violence.
The right to reproductive autonomy
is closely linked with the right to
bodily autonomy. As the term itself suggests,
bodily autonomy is the right to take decisions about one’s body. Therefore, the decision to carry the
pregnancy to its full term or terminate it
is firmly rooted in the right to
bodily autonomy and decisional autonomy of the pregnant women.
In the case of the K
S Puttaswamy v. Union of India,
a nine-judge bench of the Supreme
Court recognized the right to privacy as a constitutionally protected right
under Article 21 of the Constitution. In this case, held that the right to privacy enables individuals to retain and exercise autonomy over the body and mind.
The autonomy of the individual was defined as “the ability
to make decision on vital matters of concern of life.”
The judgement described the right
to privacy in the following term, “… Privacy postulates the reservation of a private
space for the individual, described
as the right to be let alone.
The concept is founded on the autonomy of the individual. The ability
of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to
assert and control the human element which is inseparable from the
personality of the individual. The inviolable nature of the human personality is manifested in the ability
to make decisions
on matters intimate to human life. The autonomy of the individual is associated over matters which can be kept private. These are concern over which
there legitimate expectation of privacy. The body and
the mind are inseparable elements of the human personality. The integrity of
the body and the sanctity of the mind can
exist on the foundation that each
individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without
the ability to make choices, the inviolability of the
personality would be in doubt.”
In this case, the court
held that personal aspects of life such as family, marriage, procreation, and sexual orientation are all intrinsic to the dignity of the individual. The right to privacy safeguards are respects the
decisional autonomy of the individual to exercise intimate personal choices and control over the
vital aspects of their body and life. Privacy enables the individual to retain
the autonomy of the body and mind. The autonomy of the individual is the
ability to make decisions on vital matters of concern of life.
In the case of the Common
Cause v. Union of India, the Supreme Court observed that right to
privacy protects decisional autonomy in matters
related to bodily
autonomy. Stated that,
“the right or privacy resides in
the right to liberty and in the respect of autonomy. The right to privacy
protects autonomy in making decisions related
to the intimate domain of death as well as bodily integrity. Few moments could
be of as much importance as the intimate
and privacy decisions that we are faced regarding death. Continuing treatment against
the wishes of a patient is not only a violence of the principle of informed
consent, but also of bodily privacy and bodily integrity that have been recognised
as a faced of privacy by this
court.” The right to
decisional autonomy also means that women
may choose the course of their lives.
Besides physical consequences, unwanted pregnancies which women are forced to carry to term may have cascading
effects for the rest of her life by interrupting her education, her career, or
affecting her mental well-being.
In
the case of the Francis
Coralie Mullin v. Administrator, Union
Territory of Delhi, the Supreme
Court recognized that the right to dignity is an essential part of the right to life under Article 21 of the Constitution. It was observed
that, “… the right to life includes
the right to live with human
dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing
and shelter and facilities for reading, writing
and expressing oneself
in diverse forms, freely
moving about and mixing and comingling with fellow human being. … Every act
which offends against or impairs human
dignity would constitute deprivation pro tanto of this right to live and it
would have to be in accordance with reasonable, fair and just procedure
established by law which stands the test of other fundamental rights.”
In the case of the Kesavananda
Bharati v. State of Kerala, the Supreme Court held that dignity
forms a part of the basic structure of the Constitution.
Such is its fundamental value in our legal system – the concept of dignity forms the very
foundation to the Constitution and the right enshrined in it. Dignity
inheres in every individual and is an inalienable aspect
of one’s humanity.
In the case of the Navtej
Singh Johar v. Union of India, the Supreme Court emphasized the
transformation nature of our Constitution. Transformative constitutionalism
promotes and engenders societal change by ensuring that every individual is
capable of enjoying the life and liberties guaranteed under the Constitution.
Dipak Misra, CJ indicated the importance of dignity, “… Dignity while
expressive of choice is averse to creation of any dent. When biological
expression, be it an orientation or optional expression of choice, is faced with impediment, albeit
through any imposition of law, the individual’s natural and constitutional
right is dented. Such a situation urges the conscience of the final
constitutional arbiter to demolish the obstruction and remove the impediment so
as to allow the full blossoming of the natural and constitutional rights of
individuals. This is the essence of dignity and we say, without any inhibition,
that it is our constitutional duty to allow the individual to behave and conduct himself/herself as he/she desires and allow him/her to express
himself/herself, of course, with the consent of the other. That is the right to
choose without fear. It has to be ingrained as a necessary prerequisite that
consent is the real fulcrum of any sexual relationship.
In the case of the Independent
Thought v. Union of India, the Supreme Court held that sexual
intercourse with a girl below 18 years of age is rape regardless of whether or
not she is married. Observed that the impact of Exception 2 of Section
375 IPC has to considered with social realities of the present. In the context of right
to dignity, it was observed,
“We must not and cannot forget the existence of Article 21 of the
Constitution which gives a fundamental right to a girl child to live a life of
dignity. … The right of a girl child to maintain her bodily integrity is
effectively destroyed by a traditional practice
sanctified by IPC. Her
husband, for the purpose of Section 375 IPC, effectively has full control
over her body and can subject her to sexual intercourse without her consent or
without her willingness since such an activity would not be rape. Anomalously,
although her husband can rape her but he cannot
molest her for if he does
so he could be punished under the provision of IPC. …”
In
the case of the Suchita
Srivastava v. Chandigarh Administration, the Supreme
Court explicitly recognized
the concept of reproductive autonomy. The right of women to make reproductive
choices is a dimension of personal liberty
under Article 21. It held that reproductive rights includes a
women’s entitlement to carry the pregnancy to full term, give birth, and raise
children. More importantly, it also recognized that the right to reproductive
choice also includes the right not to procreate. It doing so, it situated
the reproductive rights
of women within
the core of constitutional
rights.
WHY
MARITAL RAPE SHOULD
BE CRIMINALIZED
Breach of Article 14: According to the Article 14 of the
Constitution of India, it states that, “the state shall not deny to any person
equality before the law and equal protection of laws within the territory of India.” Article
14 rejects any type of discrimination based
on caste, race,
and religion, place of birth
or sex. This Article is having a wide ambit and applicability to safeguard the
rights of people residing in India.
There can be no doubt that the
legislature seek to punish offenders who are guilty of committing rape, this
principle is the bedrock on which Section 375 of the IPC is founded. It cannot
also be doubted that there is a differentia between married, separated and
unmarried couples. It grant impunity qua an act
which would otherwise fall within the offence
of rape under the main provision, i.e. Section 375, only for the reason it is
committed within the bounds of marriage.
Forced sex outside marriage is
“real rape” and that the same act within marriage is not rape. A chaste women
or young girl is more likely to be considered a ‘victim’; but not a married
women. A prior sexual relationship is regarded as a reasonable defence because consent
is assumed; but in
the case of a married women, it is not put to test. Sex-worker has been
invested with the power to say “no”; by the law; but not a married women. In a gang rape involving the
husband of the victim, the co-accused
will face the charge of the rape law; but not the offending husband only
because of his relationship with the victim. A married women ability to say
“no” to sexual communion with her husband when he is infected with a
communicable disease or she is herself unwell finds no space in the present
framework of rape law.
In
every sense, Marital
Rape Exception (in short “MRE”)
violates the equality
contained in Article 14 of the Constitution. Article 14
of the Constitution not only guarantees that the state shall not deny to any person
equality before the law but also guarantees that every person
within the territory of India will have equal protection of laws. The classification
between married and unmarried women in
the context of MRE is without doubt
unreasonable.
The second exception to section 375
ultra virus the right to equality incorporated in ‘Article’ of the Constitution of India as it discriminates against those women who are married by disconfirming
them tantamount security from rape
and sexual abuses. MRE provides two classification of women based on their marital status and exempts actions committed by men against their wives. Due to marital status of women,
MRE makes the exploitation of married women viable but in the case of unmarried women similar act, i.e., rape and sexual
harassment have been criminalized.
MRE violates Article 14 of the
Constitution of India. It creates three classes
of victims and perpetrators though the act is similar i.e., forced sexual
intercourse. It creates an unreasonable, discriminatory and manifestly
arbitrary classification. Merely satisfying the test of intelligible differentia is not sufficient to pass muster of
Article 14. To pass muster of Article
14, the said provisions must fall within the scope of the following facets of Article
14: there should
be intellible differentia
between classes, and there must be a rational nexus with the legitimate objects
sought to be achieved. MRE suffers from irrationally and manifest arbitrariness
as it provides immunity from prosecution for rape to a man who has forcible sex
with his wife but not to a man who has forcible sex with a women who is not his
wife.
The fact that the law does not operate
even-handedly for women who are similarly circumstanced i.e., subjected to forced
sex is writ large and no amount of legal calisthenics will sustain MRE.
Therefore, MRE is bad in law as it violates Article 14 of the Constitution.
Breach of Article 21: Marital Rape Exception is also violates Article 21 of the Constitution.
Article 21 asserts
that no person shall be deprived of their life except according to the
procedure established by law. This means that every individual has the right to
live, and their life cannot be taken away except in accordance with the
prescribed legal procedures. The right to life encompasses various aspects,
including the right to live with dignity, the right to livelihood, and the
right to a healthy environment. Article 21 also protects the personal liberty
of individuals. It states that no person shall be deprived of their personal
liberty except according to the procedure established by law.
The offence of rape and injury
caused remains the same irrespective of who the offender is. The fact that the
rapist is the husband of the victim does not make the act of sexual assault any
less injuries, degrading or dehumanizing. Irrespective of who the perpetrator is, forced sex mars the women-victim
physically, psychologically and emotionally. Rape deserves societal
disapprobation in the
strongest terms, notwithstanding, the fact
that the rapist is in
a marital relationship with the victim.
The women by entering into
matrimony does not subordinate herself to her spouse or give irrevocable
consent to sexual intercourse in all circumstances. Consensual sex is at the
heart of a healthy and joyful marital relationship. Not-consensual sex in marriage
is an antithesis of what matrimony stands for in modern times. The right to
withdraw consent at any given point in time forms the core of the women’s right to
life and liberty which
encompasses her right to
protect her physical and
mental being. Non-consensual sex destroys her dignity, bodily integrity,
autonomy and agency and the choice to procreate or even not to procreate. For
example, a wife may refuse to engage in sexual activity with her husband when
she is ill or is menstruating or is unable to engage in sexual activity
because of a sick child. The wife may also want to keep away from sexual activity in a situation where the
husband has contracted an infections, sexually transmissible disease, such as
HIV; her refusal in such
a situation may emanate not only
on account of concern for herself
but also, to protect the progeny which may result for such communion.
In the English Criminal law case of
the R
v. Clarence, the case was heard by 13 judges, the dissenting
opinion of Hawkins, J. was that, “… this marital privileges does not justify a
husband in endangering his wife’s health and causing her grievous bodily harm,
by exercising his marital privilege when he is suffering form venereal disorder
of such a character that the natural consequence of such communion will be a to communicate the disease to her.
… The husband has a right
to the person of his wife, but not if her health is endangered. … Rape consists
in a man having sexual intercourse with a women without her consent, and the
marital privilege being equivalent to consent given once for all at the time of
marriage, it follows that the mere act of sexual communion is lawful; but there
is a wide difference between a simple act of communion which is lawful, and an act of communion combined with infections contagion endangering health and causing harm, which is
unlawful.”
In
the case of the T. Sareetha v. T. Venkata
Subbaiah, the Andhra Pradesh
High Court held that, the Restitution of Conjugal Right remedy was unconstitutional since it transferred the right of
choice to indulge in sexual intercourse from the women to
the state. The would violate
Article 21 of the Constitution since it infringes upon the personal autonomy of an individual. Moreover, the
court accepted that women would be hurt by this provision and notes the
importance of sexual autonomy for a women. The court agrees that, “no positive
act of sex can be forced upon the unwilling person, because nothing can
conceivably be more degrading to human dignity and monstrous to human spirit
than to subject a person by the long arm of the law to a positive sex Act.”
Transporting this to the marital rape debate, the argument would be that even though the law treats
a married women and an unmarried women different with respect to their rights,
it would not be in violence of Article 14 since marriage
serves as a reasonable classification. It is important to note that the
argument is not that rape per se is not unconstitutional, but rather that
marriage satisfies the criteria laid down for reasonable differentia under
Article 14 of the Constitution. Therefore, despite rape being a violation of Article 21, it is justified when it is ‘marital’ rape since it amounts
to a reasonable classification. To rebut this, we will depict how the concept
of marriage has changed legally making women equal partner in a marriage. Using
this, we will explain how this evolved understanding of marriage does not allow
for the marital rape exception to satisfy the requirements of Article 14.
Breach of Article 15 and 19(1)(a): Article 15 of the Constitution
prohibits the state from discriminating against any citizen inter alia on the
ground of sex, the instant matters allude to discrimination made within the same sex, solely on the ground
of their marital
status. Continuance of MRE on the statute violates
Article 15 of the Constitution since it triggers
discrimination against women based
on their marital
status. MRE is also violative of Article 19(1)(a)
of the Constitution, as it violates
the guarantee given by the Constitution
concerning freedom of expression,
amongst other, to married
women who are citizens of this country.
The guarantee of freedom of expression
includes a women’s right to assert her sexual agency
and autonomy. The fact that this right is also secured by Article 21 lends strength
to the right conferred on a married women a express herself and not be
subjected to non-consensual sexual intercourse by the husband.
EXISTING REMEDIES FOR MARITAL
RAPE VICTIM
There are avenues available
both in IPC/BNS
and other statutes
which can be taken recourse
by a women-victim to agitate her grievance concerning sexual violence
once again fails to recognize the fact that none of them brings within its fold
the offence of rape.
Section 498A of the IPC/Section
85-86 of the BNS deals with an offence of “cruelty” committed by the husband or
his relatives. The expression “cruelty” as defined in Section 498A of the
IPC/Section 86 of the BNS means willful
conduct which is of such nature that is likely
to drive the women to committed suicide or to
course grave injury to her life, limb or health. The expression also includes
harassment of a women where such harassment is directed towards coercing her or
nay person related to her to meet any unlawful demand concerning, property
and/or valuable security. Thus, the offence of rape cannot
be brought within
the ambit of Section 498A of the IPC.
Likewise, the statement of object and reasons of the D.V. Act would distinctly bring
forth the point that it was enacted to protect women
against domestic violence. The thrust of the D.V. Act is to protect women from
becoming victims of domestic violence and to prevent the occurrence of domestic
violence in the society. Sexual abuse is included in the definition of domestic
violence, the offender is not tried for the offence of rape and the consequences that the offender
would have to face, as
provided in Section 376(1) of the IPC/Section 64 of the BNS if found guilty.
The fact that the magistrate under Section 19(2) of the D.V. Act can order registration of an FIR for
every other offence other than marital rape only highlights the fact that the
woman-victim is nowhere near the point from which she can trigger prosecution
of her husband who has subjected her to forced sexual intercourse.
Insofar as redressal against injury
caused on account of sexual abuse amounting to rape tis concerned, the husband
is not visited with any criminal liability for raping his wife.
RECENT DEVELOPMENT
The foundational promise of India’s
democracy rests on the commitment to equality, dignity, individual agency,
privacy and bodily
autonomy for all its citizens.
Marital Rape Exception
in the Indian Penal Code/
Bharatiya Nyaya Sanhita which exempts a husband form punishment for engaging in
non-consensual sexual intercourse with his wife who is not under 18 years of
age.
On
5th Day of December,
2025, Congress MP Shashi Tharoor
was introduced a private member’s bill, namely The Bharatiya Nyaya Sanhita (Amendment)
Bill, 2024, in the Lok Sabha to criminalise Marital Rape (amendment in Section 63 of the BNS), calling it urgent need to
uphold women’s rights, emphasizing India’s constitutional values. Stated that,
the country must move form “NO MEANSE NO” to “ONLY YES MEANSE YES”. According
to the Statement of Objects and Reason of the said bill, “This failure to
criminalize marital rape has left married women legally defenceless,
distinguishing them from unmarried women and perpetuating the misconception
that marriage voids the necessity of consent. This undermines women’s
fundamental right to dignity, safety, and bodily autonomy. The alarming
prevalence of marital rape is evident from the National Family Health Survey-5
(NFHS-5), which reports that 83% of women aged 18 to 49 who faced sexual
violence named their current husband as the perpetrator, reflecting the
pervasive nature of sexual violence within marriages. … Marriage should be a
partnership grounded in mutual respect,
consent, and equality. Criminalizing marital rape affirms that affirms that consent is a
fundamental human right, regardless of marital status. Allowing a husband to
force sex upon his wife disregards her autonomy and perpetuates a culture of
control and gender-based violence. In moving toward equality, it’s essential to
restore women’s agency over their sexual rights within marriage and ensure
dignity for all individual, only entrenches gender-based inequality in India’s
society … Similarly, factors unrelated to a woman’s
autonomy – such as her caste,
professional, clothing choices,
personal beliefs, or past sexual
conduct – should never be used to presume her
consent. Such assumptions not only perpetuate gender-based inequality but also
violate her fundamental rights and dignity; they must be unequivocally rejected.”
The Bharatiya Nyaya Sanhita
(Amendment) Bill, 2024 was introduced to amend Section 63, the bill mentioned
below hereinafter:
On 18th Day of January,
2026, at Jaipur Literature Festival, former CJI DY Chandrachud called the
continued criminal immunity for marital rape a moral failure of Indian law. He
said that the current legal framework, a woman subjected to non-consensual intercourse by her husband
cannot file a complaint of marital rape, and according to him, this part
of the law requires change. He clearly stated that the law has not kept pace
with constitutional values even decades after independence. Further, he said
that, “Seventy-five years after Independence, marital rape is still not an
offence. A offence who murders his wife is guilty of murder. A husband who
grievously assaults his wife is guilty of grievous
hurt and can be tried, convicted and sentenced. But a woman who is subjected to non-consensual
intercourse cannot complain of marital rape. I think that part of the law has
to change.”
CONCLUSION
In light of the aforementioned
arguments, it is put forward that it is high time marital rape be recognized by
Parliament as an offence under IPC/BNS, the punishment of which should be the
same as the one prescribed for rape committed other than in marital
institution. The fact that the parties are married should not make the sentence
lighter because the gravity of the offense is equally grave; otherwise it is
analogous to passing off the idea that if a woman consents to be married then
she consents to be raped by her husband as well. To culminate, the marital rape
exception has no relevance in present scenario.
REFERENCES:
1.
Section 63 of the Bharatiya Nyaya Sanhita, 2024, https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00048_2023-45_1719292564123&orderno=63
4.
United Nations
High Commissioner For Human Rights
Publlished The Declaration On The Elimination Of Violence Against Women, https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-elimination-violence-against-women
7.
172nd
Law Commission Report, https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/ 2022082487.pdf
11. The Protection of Women from Domestic Violence Act,
2005 https://www.indiacode.nic.in/bitstream/123456789/15436/1/protection_of_women_from_ domestic_violence_act%2C_2005.pdf
12. UN Population Fund, https://india.unfpa.org/sites/default/files/pub-pdf/ViolenceReport-25-11-10.pdf
13. The International Men and Gender Equality Survey,
2011, https://www.unfpa.org/sites/default/files/pub-pdf/International%20Men%20%26%20Gender%20Equality%20Survey%20%28IMAGE S%29%20Global%20Report%202022_EN.pdf
14. Publicatioin of 2020 Zakiya Luna, https://www.researchgate.net/profile/Kristin-Luker/publication/234146333_Reproductive_Justice/links/674e4794359dcb4d9d4c61fd/ Reproductive-Justice.pdf
15. Anjanaben W/o Bhavinbhai Devshankarbhai Modha v. State of Gujarat, May 8, 2024, https://indiankanoon.org/doc/102595200/
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s/o Daljit Ganbhir
v. State of Gujarat,
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18. Justice K.S. Puttaswamy (Retd.) v. Union of India,
September 26, 2018, https://indiankanoon.org/doc/127517806/
19. Common Cause (A Regd. Society)
v. Union of India,
March 9, 2018, https://indiankanoon.org/doc/184449972/
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13, 1981, https://indiankanoon.org/doc/78536/
22. Navtej Singh Johar
v. Union of India, September 6, 2018, https://indiankanoon.org/doc/168671544/
24. Suchita Srivastava v. Chandigarh Administration, August 28, 2009, https://indiankanoon.org/doc/1500783/
31. The Bharatiya Nyaya Sanhita (Amendment) Bill, 2024, https://sansad.in/getFile/BillsTexts/LSBillTexts/Asintroduced/263 of 2024 AS125202590816PM.pdf?source=legislation
32. Article on Marital Rape of MP Shashi Tharoor, https://indianexpress.com/article/opinion/columns/shashi-tharoor-writes-the-marital-rape-exception-in-criminal-law-is-a-colonial-relic-it-needs-to-go-10425906/
33. CJI DY Chandrachud on Marital Rape, https://www.shoneekapoor.com/legal-news/marital-rape-ex-cji-chandrachud/
How to Cite This Article
AYUSH KUMAR PRAJAPATI, Criminalisation of Marital Rape: Bodily Autonomy Matters of Women in Matrimonial Relationship., White Black Legal – International Law Journal, ISSN: 2581-8503, Vol. 4, Issue 1, September 2026, pp. 577-602, DOI Link: https://www.doi-ds.org/doilink/09.2026-38871892/Criminalisation of Marital Rape: Bodily Autonomy M. Available at: https://www.whiteblacklegal.co.in/public/details/criminalisation-of-marital-rape-bodily-autonomy-matters-of-women-in-matrimonial-relationship
Author & Publication Record
Authors: AYUSH KUMAR PRAJAPATI
Registration ID: 107081 | Published Paper ID: WBL7081
Year: Sep- 2026 | Volume: 4 | Issue: 1
Approved ISSN: 2581-8503 | Country: Delhi, India
Page No.: 577-602
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