Behind The Opaque Curtains of Marriage

  1. INTRODUCTION

Rape is the most heinous of all the crimes, it not only destroys the person physically. Pleasures and desires, without her express or implied consent, is violative of not only an individual’s dignity, but the dignity of the society as a whole. Marriage is one of the traditions in every culture which is celebrated by each and every community. Marriage is one such institution which stands as being sacred in the eyes of our country, as it is not only a knot tied between two individuals but one which is tied between two families. In order for the marriage to stand complete, it is important for the marriage to be consummated by the husband and wife without any fear factor or force. However, the consummation of marriage calls for mutual consent, but there are women who have been more like a victim and less like a partner in their marriage, since they have not really been given the option to say no.  

What is very important to understand here, is that consent is not just a perception of mind, but it is, in fact a right, one which is vested upon every individual, irrespective of their gender and marital status. With the Supreme Court making some landmark historical changes, like that of Sabarimala Temple, Aadhar Card, decriminalizing Adultery and Gay Sex, it is direly required from Supreme Court to now take a stand on this disgraceful and unscrupulous crime called Marital Rape.

  • WHAT IS MARITAL RAPE

As we have already discussed above, a number of duties and rights are vested upon  husband and wife, which they are supposed to carry out as householders and upholders of tradition. How will we address a marital relation, which is being consummated but only without any factor of mutuality or consent? Where rape is a genus, marital rape can be looked upon as one of its species. Marital rape can be defined as a sexual intercourse by a man on his own wife, more so, without her consent. He may use the method of coercion or threat to life or any other physical harm. The most striking feature of marital rape, that is,  the relationship between the man and woman, who are regarded as husband and wife, makes this crime all the way more unethical and morally wrong. The marriage commitment of tolerance and adjustment is seen to be heavy only on one side, which is of the wife’s. It is pertinent to understand that ‘consent’ does matters in every aspect of a relation. The element of commitment is not manifested in saying ‘no’ to anything that is being inflicted upon anyone. In the name of commitment and love, there are so many women who are tortured, exploited and degraded. In a survey conducted in 2018 by ScoopWhoop, an internet media and news company from India, the majority of civilians in Delhi stated that marital rape is a myth and no wife must ever complaint about it. It seems like the people do not want to understand the concept of marital rape and this is one topic which is mainly discussed in the form of a joke.

“I do not think that Marital Rape should be regarded as an offence in India, because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values”

– Justice Dipak Mishra[1]
  • LEGAL PERSPECTIVE

Analyzing Section 375 of Indian Penal Code

375. Rape – A man is said to commit rape if he –

  1. 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
  2. Inserts, to any extent, any object or part a of the body, not being the penis, into the vagina, urethra or anus of a woman or makes her to do so with him or any other person; or
  3. Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any of body of such woman or makes her to do  so with him or any other person; or
  4. 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:

Firstly – against her will

Secondly – without her consent

Thirdly – 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

Fourthly – with her consent, when the man knows that he is not her husband and that her consent is given because she believes he is another man to whom she is or believes herself to be lawfully married

Fifthly – 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 or consequences of that to which she gives consent

Sixthly – with or without her consent, when she is under eighteen years of age

Seventhly – 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 fifteen years of age, is not rape.

The definition of rape as has been codified in section 375 of IPC includes all forms of sexual assaults, thereby taking in account the non-consensual intercourse with a woman. However, Exception 2 of Section 375 excludes having a forced intercourse between a husband and wife, if wife is above the age of fifteen years, and thus makes such acts unsusceptible from prosecution. According to the present law, it is presumed that the wife has given a perpetual consent to get into sexual act with her husband upon entering into the marital relations. Section 375 states the essentials and definition of rape, yet it immunizes the same only when it is committed on the wife 18 years of age. The Supreme Court and the High Courts in India are already flooded with a huge number of writ petitions challenging the constitutionality of Exception 2 of the Act. In a recent landmark judgment, the Supreme Court criminalized unwilling sexual relation with a wife who is aged  between fifteen and eighteen years. [2]

Article 14 of the Constitution

Article 14 of the Indian Constitution states that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”[3] Although the Constitution of India guarantees equality to all the citizens, the criminal law is the one which discriminates against the women who are victims of rape committed on them by their own husbands. Exception 2 of the Section clearly violates Article 14, which is basically looked upon as main center of all the fundamental rights. It violates the right to equality enshrined in this Article by discriminating against married women by denying them protection from rape. On careful analysis of Section 375, it is observed that it creates two classes of women based on their marital status and those who are perpetrated by their husband. It can be observed that the classification created in Exception 2 is not found to have any rational relation to the underlying purpose of the statute. The Exception in this way is violative of Article 14, and also slightly changes the very essence of Section 375, which is to state the actions that lead to rape and provide the layers of protection to those who become victims to it. However, by immunizing the offence of rape on the wife over 18 years of age only promotes this crime to be inflicted on married women and also putting such women to the mercy of their husband.

Article 21 of the Constitution

Article 21 of the Constitution provides, “no person shall be denied of his life and personal liberty except according to the procedure established by law”. The Supreme Court has interpreted this clause in various judgment in order to guarantee life and liberty. Therefore, the rights enshrined in Article 21 is inclusive of the right to health, right to privacy, right to dignity and right to safe environment, among others. The Supreme Court held that “sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female”.[4] The Supreme Court has recognized the right to privacy as a fundamental right of all citizens and held that the right to privacy includes ‘decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations’.[5] Additionally it violates the right to live healthy and dignified life, as clearly, in respect of Exception 2 the dignity of those married women is shredded to pieces in the hands of their husbands. 

  • INTERNATIONAL PERSPECTIVE

While in India, it is still an ongoing topic if marital rape should be criminalized or not, many countries around the world have already taken a stand on it and has criminalized it. Moreover, India is one of the 36 countries which has still not criminalized marital rape. In Austria, the marital rape can be punished upto 15 years of imprisonment. In Canada, the law criminalizes spousal rape. The law in France criminalizes spousal rape and awards 15 years of imprisonment as punishment for the same. Germany has also criminalized rape, including spousal rape. New Zealand has also criminalized spousal rape with 20 years of imprisonment as punishment for the same.[6]

  • CONCLUSION

Therefore, it has now become very important to criminalize the marital rape in India. There are people who talk about it in form of joke and this is one topic which is mostly laughed at by the people. The elder generation is especially the one which completely disregards this problem as being foolish, but the major concern here is, they tend to raise their children with this very same thought process. Women have been going through this torture without even realizing that all this time they have been a direct victim of such heinous crime as rape. Men have been committing this crime, but with the thinking that they are entitled to it, without paying any regard to the consent of their wife. The xoming generation  must be taught, from the very beginning, about the concept of consent and more so, how it is important in every aspect. The adults must make up their mind that they do not own their wives, and that the wives have a voice, and it is allowed to say no, and this must be respected by both sides.


[1] TNN, Marital Rape needn’t be an offence, (Oct. 5, 2019, 4:00 PM), https://timesofindia.indiatimes.com/city/bengaluru/no-need-to-make-marital-rape-an-offence-ex-cji-dipak-misra/articleshow/68785604.cms

[2] Independent Thought v. Union of India, (2013)  382 SCC (2017) (India)

[3] INDIA CONST. art. 14

[4] State of Karnataka v. Krishnappa, (2000)  4 SCC 75 (India).

[5] Justice KS Puttuswamy (Retd.) v. Union of India, (2017) AIR 2017 SC 4161 (India).

[6]Tough new sentences for rape from today, STUFF, (Oct.2,2019, 10:30 AM), http://www.stuff.co.nz/national/crime/3540918/Tough-new-sentences-for-rape-from-today

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