The past few years have witnessed the growth of Indian judicial decisions towards a more liberal and open mindset of a changing society. Such decisions show how the country is moving away from the shackles of a medieval India to a society where everyone’s rights are protected.

Yet, the constitutionality of the marital rape exception in the Indian Penal Code is a substantial question that is yet to be answered.

Sexual violence is all pervasive and manifests itself in a number of forms, which exist in all institutions of life including the most basic unit of human society, the family.

Rape is a violation of the autonomy of a private person outraged by all means. Section 375, of the Indian Penal Code, defines rape as “non-consensual sexual intercourse with a woman”. The exception to the said section exempts the husband of penal consequences if sexual intercourse takes place between a wife and her husband, given that his wife is above the age of 15 years.

Although many countries have already criminalised marital rape; India is one of 36 such countries where it is not yet penalised.

In a landmark judgment, R v. R, in the United Kingdom, a husband defended the ‘conviction for attempted rape’ on the ground that marriage gave irrevocable consent. His contention was refuted and the court convicted him as the exception to marital rape is a ‘legal fiction under the common law’. The court stated that for a person to be penalised for rape the relationship between parties is immaterial.

Appeals to Criminalise Marital Rape in India

There have been many petitions before the courts in India, to declare marital rape as a criminal offence.

Unfortunately, they have all been silenced.

In 2015, a petition filed by a woman in the apex court was dismissed on the ground that law shan’t change for one woman. The apex court had observed in Arnesh Kumar v. State of Bihar that criminalising marital rape will be the collapse of the social and family systems amidst the already existing biased laws.

The Indian government believes that criminalising marital rape can de-stabilise the institution of marriage. This contention is often posed against the reasoning that Section 498A has witnessed instances of misuse.

The Verma Committee Report had made recommendations to remove the exception of marital rape under the act. The report affirmed that marriage is not an irrevocable consent to sexual intercourse. Thus, in order for an accused to be charged for the act, the relationship between him and the victim should be immaterial.

The UN Committee on Elimination of Discrimination Against Women also recommended that the Indian government should criminalise marital rapes.

In 2013, an Amendment was made which recognised the rape of women between 12 and 15 years of age as punishable under the act. However, the change is condemned as it does not bring about any substantial change in the status of victims of the crime.

In Independent Thought v. Union of India, the apex ruled that although S.375 creates an exception to marital rape, sexual intercourse with a girl below the age of 18 years is rape regardless of whether she is married or not. The court held that “The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved.”

The Constitution and Marital Rape

The exception created by Section 375 is violative of the fundamental rights of equality, dignity and privacy of women.

Article 14 of the Indian constitution guarantees equal protection of rights to all its citizens. In State of West Bengal v. Anwar Ali Sarkar, the Supreme Court ruled that under Article 14, any classification should be done on intelligible differentia and such differentia must have rational nexus with the object sought to be achieved.

The exception that excludes married women from getting protection under the section, is not based on intelligible differentia as it solely relies on the basis of her marital status.

Section 375 violates the rights of the married women, who are victims of rape, to be treated equally with their husbands and with other victims of the same offence. Hence, the exception infringes the right to equality of the accused as enshrined in the constitution.

The right to life under Article 21 is not restricted to mere “animal existence” but also includes the right to live with dignity.

No matter what, no law should infringe on this right from a person based on their marital status. In light of this expanding jurisprudence of Article 21, marital exemption to rape violates a host of rights that have emerged from the expression ‘right to life and personal liberty’. There cannot be a more obvious and blatant violation of Article 21.

Justice K S Puttuswamy v. Union of India settled that the right to make sexual decisions is envisaged in the right to privacy. This right does not exclude married women above the age of 15 years from under its purview.

The need for proper legal remedies for marital rape

Women can file complaints about sexual assault under Section 498A against their husbands.

Another remedy available to women is the Protection of Women from Domestic Violence Act, 2005. Under the act, women can file complaints against forced sexual activity without their will, even by their spouses.

The increasing rate of crimes against women indicates the shortcomings of the present laws.

The duty of safeguarding women rights is not confined to the judiciary; it must be imbibed in the collective conscience of the nation.

(Anusha Agrawal is a law student at the National Law University Odisha and an intern with The Leaflet. Article courtesy: The Leaflet.)