Authored By: Ricca Marrieh M. Quinagoran
Middlesex University Dubai
ABSTRACT
This article delves into the legal immunity for marital rape under Exception 2 to Section 375 of the Indian Penal Code (IPC), which deems sexual intercourse between a husband and a wife (if the wife is above fifteen years), from being considered as rape. It critically analyses how this exemption conflicts with India’s international human rights commitments, especially under ICCPR and CEDAW. The article utilises a constitutional and comparative approach to contend that the exception infringes upon the fundamental principles of equality and personal autonomy protected by the Indian Constitution. This article concludes by recommending the abolition of the marital rape exemption, promoting legal reform in line with constitutional principles and moral obligations to ensure the protection of women’s rights, bodily autonomy, and dignity.
INTRODUCTION
By definition in the International Criminal Court (ICC), rape is constituted when there is a forced invasion in the body of a person incapable of granting sincere consent by the perpetrator’s sexual organ.[1] While this definition appears similar in most statutes, the IPC provides a controversial exception for rape. This sheds light on the debate of the legal immunity granted to perpetrators who are in a marital relationship with the victim, undermining the significance of consent, which is essentially a key element to consider in criminal law and in upholding bodily and sexual self-determination. Consequently, just and lawful protection for married women in India are constrained, further perpetuating institutionalized gender hierarchies that marginalizes the rights of women to the perceived inviolability of marriage.
The following article will analyse whether India’s legal exception for marital rape contravene constitutional values and international human rights commitments. To begin, this article will provide an overview of the laws pertinent to marital rape within Indian criminal law. Subsequently, this article will assess the barriers induced by the exemption to constitutional and international legal frameworks. Furthermore, the following article will address mainstream opposing viewpoints, not excluding the evaluations of legislative reasoning, criticisms regarding potential for abuse, and the cultural significance of marriage. In closing, this article will formulate a prescriptive and jurisprudential basis for reform, founded in India’s legal structure and its supposed devotions to respecting human rights and balanced gender representation.
BACKGROUND
Considering the rising emphasis on legal and social equality between genders on both domestic and international scope, the exemption of marital rape from legal liability demonstrates a salient inconsistency with the progressing apprehension of women’s rights as indispensable to the normative basis of international human rights. This matter is considered critical for discussion since the constitution of India is meant to ensure substantive equality, individual liberty, and respect for dignity, adding that it is legally bound within international law to protect these rights for women.
Key Concepts
Sexual Consent
The doctrine of consent constitutes a core principle within criminal law, significantly concerning the matters of sexual offences. Generally, non-consensual sex is apprehended as criminal harm by constitutional frameworks. However, while the IPC provides a statutory interpretation of what constitutes as rape, its second exemption for married couples contradicts with the whole primary element itself, infringing upon the legal structure intended to safeguard women.
Intersection of Bodily Autonomy and Matrimonial Law
The concept of bodily autonomy provides individuals the fundamental right to exercise self-governance over their physical integrity, not excluding the personal liberty to decide whom to commit to sexual relations with.[2] The exemption guaranteed in the IPC places more importance on marital status, making self-determination seem inferior in the given context.
The Public-Private Binary in Contemporary Jurisprudence
Bodies of law influenced by patriarchal traditions possess the tendency to divide public and private domains, minimising legal intrusion into domestic affairs. As a result, serious matters such as marital rape often persist without scrutiny, which is mostly evident in India.[3] Through the conceptualisation of marriage as a matter of private concern, perpetrators manage to evade liability under the law. Alternatively, the mentioned division disregards the occurrence of crimes in the domestic sphere. The legal safeguarding of fundamental rights must be administered on an equal footing, regardless of the location the immoral act had been committed.
Legal Framework Surrounding Marital Rape in India
The IPC primarily details the elements that would constitute as rape under Section 375, adding the exclusion of sexual acts by a man with his own wife, provided that her age is not under fifteen years.[4] By bestowing legal immunity to husbands for rape, the constitution upholds a fictious notion that marriage is a justification for the redundancy of consent in sexual acts.
Despite the efforts to push for the criminalisation of marital rape, the Law Commission of India had clarified their opposition towards the submission, highlighting the higher importance of marriage as a sacred institution and the continuity of familial relationships.[5] This preservative standpoint has been extensively condemned for supporting a patriarchal system over the civil liberties of women. In due course, the Justice Verma Committee Report (2013) put forward the suggestion to abolish the second exemption in Section 375 of the IPC and preserve the stance that sexual perpetrators must not be protected for any reasoning, particularly marriage.[6] However, in spite of their endeavours and collective endorsement, this implementation was rejected by the Indian government.
International Human Rights Principles
The exception provided in the IPC for rape is in direct conflict with its primary commitments to international law for human rights. Human rights bodies have interpreted Article 7 of the International Covenant on Civil and Political Rights (ICCPR) to incorporate sexual violence, irrespective of the identity of the offender.[7] In addition, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) provides a General Recommendation that affirms gender-based violence, including marital rape, as a manifestation of discrimination that states are bound to prohibit and penalise under international obligations.[8] Evidently, international institutions mostly encourage for states to ensure that women are protected from sexual violence and that exemptions should not be implemented. India has breached its international obligation to human rights law by overlooking the criminalisation of marital rape and therefore, deprived numerous women seeking justice.
LEGAL AND CONSTITUTIONAL TENSIONS
Beyond dispute, the exception provided in the IPC conflicts with foundational rights enshrined in the constitution. To support, Article 14 in Constitution of India states, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”[9] While the article intends to implement equality by law, the former unjustly perceives women distinctively by their marriage status, prioritising legal protection for unmarried women but none if they are married. This distinction is not grounded in reason and reflects an obsolete legal fiction that marriage implies sexual consent at any given time.
In the case of Joseph Shine v Union of India (2018), the Supreme Court had ruled to invalidate the adultery law, demonstrating its disavowal of these patriarchal beliefs.[10] However, regardless of this principle, the exception for marital rape persists to target married women as seemingly unfit for legal protection. Relevantly, the Court in Justice K.S. Puttaswamy (Retd) v Union of India (2018) affirmed the right to bodily autonomy and personal privacy.[11] However, the IPC exemption retains its statutory application. The persistence of this legal immunity not only diminishes the rights of married women, but also potentially indicates that the state would rather accommodate their customary practice, regardless if it is considered as unjust, over the fundamental human rights. Consequently, this continuing aspect is a reflection of the extensive inability to reconcile domestic law with the evolving constitutional principles of justice and dignity.
COMPARATIVE AND HUMAN RIGHTS PERSPECTIVES
There is an evident disparity between India’s domestic legislation and the supposed developing global standards of international human rights law. The R v R [1992] case in the UK recognised the obsolete standpoint of perpetual consent assumption within marriage and thus, revoked the exemption for marital rape.[12] This perception of retaining irrevocable consent is now acknowledged to be inconsistent with the progressed apprehension of bodily autonomy and impartiality. Other countries such as Australia, Canada, and New Zealand have explicitly recognised marital rape as illegal.[13] These amendments illustrate evolving societal norms and in addition, a concise motive to align with obligations under international human rights frameworks, significantly in accordance with CEDAW.
On the contrary, there has been resistance from India for such change, even thought it is bound by both the ICCPR and CEDAW. India was subjected to extensive criticism for reiterating its stance on the exemption despite repeated CEDAW scrutiny. This highlights a systemic aversion to address entrenched patriarchal norms embedded in legal structures. Simultaneously, in Vishaka and others v State of Rajasthan and others (1997), the Supreme Court asserted that the constitution may draw guidance from the principles of international instruments that India has committed to in the scenario where there is no particular legislation to be followed.[14] This principle is mostly disregarded in marital cases that encompass acts of sexual violence. As a result, this recognises the state’s incapacity to adopt international principles, unveiling a fragmented approach to human rights adherence, giving precedence to conservative cultural values at the expense of constitutional and international mandates to safeguard bodily autonomy and gender equality.
COUNTERARGUMENTS AND CRITIQUES
A common rationale for opposing the criminalisation of marital rape revolves around potential for manipulation through fabricated claims.[15] In various criminal cases, this type of tactic is evident. However, absolute legal immunity is not a fairly reasonable solution in response to the latter cases. It is rather important to ensure that there is a fair trial to approach these matters. Prioritising due process serves to prevent legal misuse without compromising liability for perpetrators of sexual violence. The potential of misuse must not serve as a valid justification for allowing marital rape or denying women control over their own bodies.
In addition, criminalising marital rape is argued to diminish the institution of marriage. However, this argument is antithetical to progressive values and inconsistent with modern legal standards. The institution of marriage should not equate to automatic and irrevocable sexual consent. The presumption of such overlooks the progressive transition of recognising marriage as a relationship based on equality and mutual respect. In defence of this, Triple Talaq cases such as Shayara Bano v Union of India and Ors (2017) that reflect comparable traditional assertions, upheld that the principles of equality and dignity enshrined in the Constitution must not be compromised by outdated cultural norms.[16]
Moreover, it is asserted that one of the concerns in the criminal justice system was the challenges in establishing evidence to prove the crime.[17] While these concerns may be present in a number of marital rape cases, it does not justify being utilised as a reason for legal immunity. Rather than upholding the exemption, it would be more competent for legal reforms to prioritise strengthening investigative procedures, such as providing enhanced training for crime prevention and improved cognitive support for victims. Such challenges are not uncommon in most cases and therefore, must not hinder legal frameworks from acknowledging and addressing this type of violence.
DISCUSSION
In essence, the legal exemption for marital rape in India directly conflicts with fundamental constitutional principles and global human rights frameworks. As a result, a patriarchal system is prolonged that deprives women non-discriminatory legal treatment. This inconsistency with Article 14 of the Indian Constitution revokes women of their equal rights. Moreover, India is bound by international commitments under the ICCPR and CEDAW and obliged to criminalise marital rape as a contribution to its efforts to eliminate gender-based violence. However, its consistent refusal to legally acknowledge the matter illustrates a failure to bridge the gap between domestic legislation and these international standards.
From the perspective of marital rape victims, the maintenance of the legal exception for perpetrators intensifies their emotional and psychological harm. In the absence of a legal remedy, the victims are driven to suffer in silence as they are left vulnerable to continuous abuse, and are confined by the weight of cultural, social, and legal constraints. Dismissing marital crime as a heinous offence further marginalises victims, hindering them from attaining justice and regain control over their lives. Consequently, women are left without legal remedy to preserve their protection or assert their sexual autonomy within marriage.
By virtue of this, these systemic failures need to be considered by a gender-aware and rights-focused approach. Establishing marital rape as a criminal offence is not merely a legal obligation but also moral responsibility to safeguard women’s complete autonomy and equality. Through the implementation of this approach, marital rape would be discerned as an infringement of human rights, further empowering victims to obtain justice and additionally strengthen India’s devotion to gender equality in both the legal aspect and initiation.
Recommendations
Rescind Exception 2 to Section 375 of the IPC
The exemption for marital rape should be repealed to bring national legislation to be consistent with constitutional values of equality and individual autonomy.
Judicial Training and Legal Education Programs
Law enforcement officers, judges, and lawyers must receive specialised training to enhance their sensitivity and understanding of marital rape cases. This training would secure the legal system’s respect for victims, upholding their dignity and offer the compulsory support they require to be guided through legal processes.
Integrated Support Systems for Victims
Create comprehensive, multidisciplinary support systems for victims. This would involve the provision of medical care, emotional support, and legal aid to assist victims in navigating with both the trauma and the legal obstacles they would experience.
Legislate Procedural Protections
Appropriate procedural safeguards must be enforced to alleviate concerns regarding misuse. These measures must not exclude conducting comprehensive investigations and guaranteeing a fair trial process that adheres to the rights of the accused and the dignity of the victim.
CONCLUSION
In final analysis, the exception for marital rape in India is legally untenable and morally wrong. In essence, it violates articles under the Indian Constitution, breaching the state’s commitments under international law. By excluding marital rape from legal accountability, India fails to grant women protection that equate to what men receive, reinforcing inequality and diminishing their dignity.
The need for legal reform is indispensable, not only from a constitutional standpoint but also a moral duty. By maintaining the exemption, patriarchal norms are upheld and undermines women’s fundamental rights. Legislation in India must prioritise the values of consent, respect, and equality in all intimate relationships.
This advocates for a justice system overhaul that respects and prioritises individual autonomy and rights, delivering justice for victims and equal treatment before the law.
REFERENCE(S)
Convention on the Elimination of All Forms of Discrimination against Women, General Recommendation No. 2 (1992)
Dotania SK, Criminalising Marital Rape: Yet Another Weapon to Harass Husband, INDIAN J. INTEGRATED RSCH. L. 1, 1 (2022)
HT Correspondent, Marital rape grave offence, illegal in many countries: Gujarat high court, Hindustan Times (Dec. 18, 2023, 09:43 AM), https://www.hindustantimes.com/india-news/marital-rape-grave-offence-illegal-in-many-countries-gujarat-high-court-101702912826753.html
India Const. art. 14
Indian Penal Code, 1860, § 375
International Covenant on Civil and Political Rights, art. 7.
International Criminal Court, Elements of Crime (Issued on 2011)
Joseph Shine v Union of India, AIR 2018 SC 4898 (2018)
Justice K.S. Puttaswamy (Retd) v Union of India AIR 2018 SC (SUPP) 1841 (2018)
Justice Verma Committee, Report of the Committee on Amendments to Criminal Law (2013)
Law Commission of India Report No. 172, Review of Rape Laws (2000)
Lazar RL, The vindictive wife: The credibility of complainants in cases of wife rape, 25 S. CAL. REV. L. & SOC. JUST. 1, 1 (2015)
NAYAK BS, IMPACT OF PATRIARCHY AND GENDER STEREOTYPES ON WORKING WOMEN (Bhabani Shankar Nayak & Naznin Tabassum, 2024)
Pundir S, Sexual Autonomy of Married Women in India: Contemporary Constitutional Challenges 6 INT’L J.L. MGMT. & HUMAN 2177 (2023)
R v R [1992] 1 AC 599
Shayara Bono v Union of India and Ors, AIR 2017 SC 4609 (2017)
Vishaka and others v State of Rajasthan and others, (1997) 6 SCC 241
[1] International Criminal Court, Elements of Crime (Issued on 2011).
[2] Shubhrangana Pundir, Sexual Autonomy of Married Women in India: Contemporary Constitutional Challenges 6 INT’L J.L. MGMT. & HUMAN 2177 (2023).
[3] BHABANI SHANKAR NAYAK, IMPACT OF PATRIARCHY AND GENDER STEREOTYPES ON WORKING WOMEN (Bhabani Shankar Nayak & Naznin Tabassum, 2024).
[4] Indian Penal Code, 1860, § 375.
[5] Law Commission of India Report No. 172, Review of Rape Laws (2000).
[6] Justice Verma Committee, Report of the Committee on Amendments to Criminal Law (2013).
[7] International Covenant on Civil and Political Rights, art. 7.
[8] Convention on the Elimination of All Forms of Discrimination against Women, General Recommendation No. 2 (1992).
[9] India Const. art. 14.
[10] Joseph Shine v Union of India, AIR 2018 SC 4898 (2018).
[11] Justice K.S. Puttaswamy (Retd) v Union of India AIR 2018 SC (SUPP) 1841 (2018).
[12] R v R [1992] 1 AC 599.
[13] HT Correspondent, Marital rape grave offence, illegal in many countries: Gujarat high court, Hindustan Times (Dec. 18, 2023, 09:43 AM), https://www.hindustantimes.com/india-news/marital-rape-grave-offence-illegal-in-many-countries-gujarat-high-court-101702912826753.html.
[14] Vishaka and others v State of Rajasthan and others, (1997) 6 SCC 241.
[15] Suresh Kumar Dotania, Criminalising Marital Rape: Yet Another Weapon to Harass Husband, 2 INDIAN J. INTEGRATED RSCH. L. 1, 1 (2022).
[16] Shayara Bono v Union of India and Ors, AIR 2017 SC 4609 (2017).
[17] Ruthy Lowenstein Lazar, The vindictive wife: The credibility of complainants in cases of wife rape, 25 S. CAL. REV. L. & SOC. JUST. 1, 1 (2015).
