Marital Rape

1. Introduction
Rape, a horrific violation of a person's body and autonomy, a crime that leaves deep physical
and emotional scars and has the rightly suitable punishment which may even extend to the
death penalty. But what if I told you that for many women in India, this violation occurs
within the confines of their own homes, at the hands of the person they are married to?. Rape
is an act of non-consensual sex by a man with a woman, however the same non-consensual
sex by a man with his own wife, the wife not being [under eighteen years of age]1,in any
circumstance is not rape.
What I mean by this statement is that if a husband wants to have sexual intercourse with his
wife he may proceed to do so even if she is not consenting to the act and such a disgraceful
act by the husband would not be considered as rape.
The effects of rape on a victim can be profound and multifaceted, impacting physical,
psychological, and social well-being. Does being married to a person remove such effects?
Does being married to a person remove the need of consent?
If the answer to the above questions is “no” then why is this marital rape not criminalized in
India and why is it treated as an exception of rape?
In this presentation we are going to discuss about why the legislation made MR an exception,
what is the view of judiciary on the topic, what challenges making marital rape an offence
might face followed by a very important case law

2. Marital rape laws as compared to other countries

In England, if a person is found guilty of marital rape, he is likely to get punishment of
imprisonment between four to nineteen years, depending upon the facts of the case. The
maximum punishment which can be given in this case is life imprisonment.
In Australia, Marital Rape, fulfilling all the conditions of rape is punished with different
degrees which depends on how brutal the crime is and follows maximum imprisonment of 15
years , unless the victim is below 15 years if so then 20 years of imprisonment. People who
commit these crimes resulting in the death of victims suffer a punishment of imprisonment
for up to 30 years.
In USA by 1993, Marital Rape had become a crime in all 50 states of the United States of
America
Then why is India falling behind?

3. View of legislature and judiciary

In 1860 IPC was introduced including this exception of marital rape. Why? because of the
societal norms that viewed marriage as a sacred institution where consent was presumed. This
perspective was rooted in the patriarchal beliefs that women, upon marriage, irrevocably
consented to sexual relations with their husbands. But this was not the only deficiency that
occurred because of the condition of women at that time, There were Lack of Laws Against
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Independent Thought vs Union Of India (AIR 2017 SUPREME COURT 4904)
Domestic Violence and Dowry, No Laws Against Sexual Harassment, Limited Property
Rights for Married Women and No Reservation for Women in Politics.
Over the decades, India has enacted several laws and amended existing ones to address the
changing needs and demands of society regarding women's rights. However, one thing that
remained the same was the marital rape exception, the only change was first the age given in
the statute was above the age of ten years which was then amended to be the age of 15 years.
It was until the judgement of supreme court in 2017 in Independent Thought v. Union of
India it was held that sexual intercourse between a man and his wife aged between 15 to 18
years is rape. Although the court refrained from saying anything about the married women
above the age of 18.
The judiciary never really entertained any question on the validity of marital rape exception
until the case of RIT foundation vs Union of India 2022. In this case there were a two judge
bench and surprisingly the judgement was a split judgement. Where Justice Rajiv Shakdher
gave his opinion as the exception to be unconstitutional, Justice Hari Shankar believed
otherwise. We will discuss this judgement in detail after a bit of time before that we will
move on the other aspects of this presentation.

4. Challenges as to make it an offence

So lets move on to the challenges that making marital rape an offence faces.
According to former Chief Justice of India Dipak Mishra, “making marital rape a crime
would cause complete anarchy in families, and our country’s survival depends on the family
platform, which upholds family values”. This statement was given by him at a conference on
‘Transformative Constitutionalism in India’2 in 2019
This is a unique obstacle that India faces as a major population of India (for the most part)
have a lack of literacy, lack of educated, they are conservative, and rigidly religious they
believe that the wife must consent to her husband forever, and this makes it hard to
implement the criminalized marital rape.
In an affidavit which was submitted to the high court of Delhi by the union government stated
that criminalizing marital rape may become an “easy tool to harass the husband” comparing it
with section 498 of IPC3.
Now what do you guys think, is this statement by the union government valid?
But do you think that this particular obstacle is strong enough not to criminalize such an
offence?
Now it is agreed that a lot of women may falsely accuse their husbands and it will be very
tough to identify whether the act was consensual or not because in these cases the burden of
proof lies in the at the accused, But I think this is one of the features of the judiciary; to weed
out false accusations and impose penalties and provide justice. The argument which says that

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the marital rape might be an easy tool to misuse is according to me inconsistent, Can
someone be denied justice in the fear of the law being misused?. I don’t think so.
And if we are speaking that the law might be misused and therefore should’nt be an offence
the following statistic will definitely challenge the view.
According to National Crime Records Bureau’s statistics, approximately 74% of rape cases
under section 376 of the IPC result in acquittals. Does that mean that rape should also not be
an offence? Absolutely not, So why this argument even valid.
The National Family Health Survey-4 (2015-2016) data cited in a petition to the Delhi High
Court revealed that 99% of marital rape cases go unreported
According to the National Family Health Survey-5 (2019-2021) Among married women
nearly 1 in every 3 women have suffered spousal sexual, physical or emotional violence

5. RIT foundation v Union of India 2022 case study

Now Lets move on to the case of RIT foundation v Union of India 2022,
Justice Rajiv Shakdher expressed his views and held that Exception 2 to Section 375 (MRE)
and Section 376B of the IPC Sexual intercourse by husband upon his wife during separation
insofar as they concern a husband or separated husband having sexual communion or
intercourse with his wife (who is not under 18 years of age), without her consent, are
violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution and, hence, are struck down.
However, Justice Hari Shankar had a different opinion. He states that the MRE is not
violative of the article 14 as the distinction of sexual acts between a husband and wife,
whether consensual or non-consensual and non-consensual sexual acts between a man and
woman not bound to each other by marriage is founded on an intelligible differentia having a
rational nexus to the object sought to be achieved by the Exception and hence are not
violative of the article.
He gives the reasoning for it as follows: “The impugned Exception does not, either directly
or by necessary implication, state that, by reason of marriage, a husband has a right to have
sex with the wife against her will or consent. All that it says is that, if he does so, he, unlike a
stranger committing such an act, cannot be treated as a rapist. There is a clear intelligible
differentia between the two situations, viewed from the point of view of the act, the
perpetrator, the victim, the degree of culpability and the degree of outrage that the victim
would feel once the act is perpetrated.”
This forms an intelligible differentia having a rational nexus to the object of the impugned
Exception, as well as to the object of Section 375 itself
What I understood from the judgement of Justice Hari Shankar was that the issue at the hand
of the court was to whether to struck down the marital rape exception which would then mean
that if a husband has non consensual sex with his wife, that offence would be the offence of
rape. But after establishing the intelligible differentia that he mentioned above, calling the
offence of husband as rape, according to him should not be allowed as a husband performing
the act and any other person performing the act is not same and hence should not be rape.
6. My opinion
In India, the current condition of married women in terms of protection against non-
consensual sex by their own spouse is very poor as there is no law that makes marital rape an
offence. Before reading the judgement of RIT foundation vs UOI I was of the opinion that
marital rape should also be considered as rape, but now I agree with the intelligible
differentia given by justice Hari Shankar that the degree of outrage felt by a woman if such an
offence was committed by a stranger or any other person and the degree of outrage felt by her
if the offence was committed by her own husband would not be the same. But I do believe
that due to this act of non consensual sex by a man with his wife is violative not just of her
human rights, but also of her fundamental rights, it violates her right to dignity, her right to
consent and should definitely be punished. If not as rape, then as an offence of a lesser degree
but a justified one. So that the victims should get justice and the offenders should be
punished.