Why Is Marital Rape Legal in India?

Marital Rape is still legal under Indian Penal Code. Even standing in 2021, India is one of those 36 countries who have not criminalized this animalistic crime. This is just shameful to live in such a society where women are treated as an object of pleasure for their husbands. Patriarchal society still considered women to be the properties owned by their husband. Objectification of women is not a new approach. This has been done for ages, and worse, this is legal under Indian law. It is both shocking and outraging that how could Indian men still legally rape their wives?

Section 375

Section 375 of the Indian Penal Code (IPC) defines rape as a criminal offense when done without the consent of the woman and against her will and if she is a minor. However, this is completely legal and not under criminal offense if she is legally married to the man. 

The current law states it is presuming of a wife to grant perpetual consent to have sex with her husband after entering marital relationship. While almost every country in the world has criminalized marital rape, India is still one of the 36 countries who has not. 

Mutual sexual consent between husband and wife is countable, whether or not it is a happy marriage. To challenge this constitutionality exception, innumerable writ petitions are currently flooding the Supreme Court of India and other various high courts. The Supreme Court of India has criminalized unwilling sex with a wife below the age of 18. However, it is still legal for an Indian husband to rape his wife if she is above the legal age of 18. 

Why Marital Rape was an exemption in IPC?

IPC was enacted way back in history, specifically in the Victorian era. During those times, society ran with a patriarchal approach and there were myriad cultural, economical, and religious influences. No married woman was considered as an individual single entity. Rather, they considered her as a property of her husband.  

In the era of British colonial rule in the 19th century, all the laws that were enacted at that time were greatly influenced by the British patriarchal norms. Victorian patriarchal norms did not see women as an individual entity, women did not have rights to own properties and they integrated their identities with that of their husbands. Under the common law, the law of coverture defines a woman’s primary identity by her marital status.

Also read: Why women are stigmatized to have sex before marriage?

Why is India still holding back?

But things have drastically changed now. Modern era explicitly identifies husband and wife separately. Indian jurisprudence is primarily concerned with women’s protection from violence and harassment. Women’s voices cannot anymore be suppressed on any illogical grounds in this modern era. Something recognized as a crime is always a crime. Rape is a recognized crime throughout the world. Then how could not Indian judiciary see that marital rape is also a type of rape and is crime? 

In this context, Union Government holds the highest place to not pay attention to the various writ petitions submitted by individual or civil organizations who challenge the exemption of marital rape under Section 375.

Controversially, the government and the judiciary have been continuously saving the marital rapists on the grounds of those few age-old reasons which have no value anymore. Thorough analyzation of this unfair practice will make you ponder seriously, how could Indian men still legally rape their wives when it’s just a representation of misogyny.

Violation of Indian Constitution

According to UN Population Fund study, more than two-thirds of married women in India, aged between 15 to 49, are beaten, raped, or forced to provide sex regularly. 

Violation of the Act, Protection of Women from Domestic Violence, 2005

Exemption of Marital Rape under section 375 violates 2005 Act, Protection of Women from Domestic Violence.  

The 2005 acts diligently states any form for physical, mental and emotional abuse that harms, injures and endangers the victim’s health, safety, well-being or life comes under domestic violence. Then how it is not domestic violence when the same is applied on the wives to force her to have sex. Isn’t this violation of Indian Constitution? 

Violation of Article 14

Indian men still legally rape their wives and this exemption under IPC section 375 violates Article 14 of Indian Constitution as well. Article 14 of Indian Constitution reads as, “The [S]tate shall not deny to any person [e]quality before the law or the equal protection of the laws within the territory of India.” 

It is overtly a discrimination towards married women. Because they are denied the right of equality regarding rape and sexual harassment for married woman contrary to their counterpart. This uneven discrimination has given birth to two separate sets of women depending on their marital status. 

The exemption of marital rape under section 375 violates the article 14 by not protecting married women for the same act, they give protection to the unmarried women. By not punishing the husbands who rape their wives, the exemption of marital rape contradicts the primary objective of section 375 criminal offense. Because whether married or unmarried, the consequences of rape in same in both cases. Also, it is more difficult, both legally and financially, for the married women to escape the abusive scenario than their unmarried counterparts. It even encourages the husbands in the forceful participation in the sexual activities with their wives because they know their acts are not penalized legally. 

Violation of Article 21

The exemption of marital rape under section 375 violates the right to personal liberty of a human being enacted under Article 21. Article 21 reads as, “[N]o person shall be deprived of his life or [p]ersonal liberty except according to procedure established by law.” Over the years, the lawmakers really extended the literal rights to life and personal liberty to the rights to health, dignity, privacy, safe living conditions, environment and continuous connection with others.  

What are the grounds the lawmakers are pointing for not overruling the marital rape exemption?

The women might misuse the law. 

The absurd argument they rest is women will call any sexual activities happened between husband and wife as rape and discerning the truth will be very difficult because they will have to believe solely on the wife’s words. If that’s what they are arguing, then the lawmakers need some help to understand that the judiciary is actually made to distinguish between what is truth and what is false. This nonsensical argument cannot be the driving force for the Indian men to still legally rape their wives. Mind you, two-third of the married women are victims of marital rape

It might create anarchy in the families. 

The former Chief Justice of India, Dipak Mishra, gave his statement on marital rape as it should not be made a crime in India because our country’s basic building blocks are families and upholding its values. If marital rape is made a crime, it might create anarchy in the family. His statement is basically pointing to the fear that a large portion of marriages might fall apart if marital rape is criminalized.

How is his statement invalid? In Independent Thoughts vs. Union of India, the court has made a statement like marriage is personal, divorce or judicial separation have not destroyed the institution of marriage, then making marital rape as a crime cannot either. Rather, marital rape exemption under section 375 may damage the institution of marriage. Because it violates the trust and confidence within marriage. Mind you, two-third of the married women are victims of marital rape. If criminalizing marital rape damages the institution of marriage, no one sees a problem in it.

Also read: Does Kanyadaan make Women inferior?

Final words:

Women have been facing discrimination for centuries. Objectification of women in this patriarchal society is messing with women’s very existence and individual rights. Consent matters, and when it is the very base of a connection like marriage, both parties should be equally treated. Indian men cannot continue raping their wives if wives are non-consenting. A ‘No’ is always a ‘No’. No circumstances can change its meaning.  

1 thought on “Why Is Marital Rape Legal in India?”

  1. Most people are familiar with Emily Bronte’s “Wuthering Heights ” or sister Charlotte’s “Jane Eyre.”

    Fewer are familiar with Anne Bronte, the third sister to publish.

    When Anne’s main female character in her Book “The Tenant of Wildfell Hall” locked her drunken husband out of their bedroom, it shock English society.

    If India as yet denies a wife divorce for marital rape, law could at least establish a refuge for Battered Women, where they could live without fear of beatings by her insensitive husband.

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