Author: Tanisha Priyadarsini, Madhusudan Law University
Sexual intercourse or sexual activity by a man with his own wife, who is above 18 years of age, is not a sexual assault, ‘even if it is against the consent or will of the wife’. Under the section 375 of Indian Penal Code, 1860 deals with the word ‘rape’ and defines it as an unlawful sexual intercourse carried out forcibly or under the threat of injury against the person’s will or with a person who is incompetent of giving valid consent due to mental illness, intoxication or unconsciousness, or with a person who is below 18 years of age. But there are two exceptions attached to the section 375 of Indian Penal Code,1860 which state about the scenarios, which are not considered as rape situations. The two exceptions are: first, the victim’s consent is necessary for he medical examination or interventions; and second, sexual intercourse by man with his own wife, who is 18 year above, is not a rape.
Going back to the roots, the IPC is based on the 1874 draft of Lord Macaulay who was the chairman of the first law commission, which was established during the colonial era in India. This particular exception in the draft decriminalises marital rape and it implies that the women consent to the marriage and to protect the conjugal rights of husband. During the colonial era, this exception was stated as non- criminalised based on two ideas or concepts that they followed. The first idea was the Doctrine of Hale, which was given by Mathew Hale, the British chief justice in the year 1736. It stated that the husband cannot be held guilty of rape when their marriage and matrimonial relationship started with the consent of both the parities and contract the wife has given up herself in this kind to the husband. Another ideal concept that was implied was termed the Doctrine of Coverture, which meant that a woman has no individual legal identity after marriage. Isn’t this doctrine unlawful towards the constitution? Isn’t this doctrine creating inequality in society? Where every woman is trying to hold equal status, where every law and legislation is trying to equalise and provide equal status to all the categories, then why is this exception not still being criminalised? In the hearing where the honourable supreme court of India struck down adultery as a crime in the year 2018, Justice Indu Malhotra, held that section 497, is based on the doctrine of coverture, and although it is not recognised by the constitution, it is violative towards the fundamental right of a woman. On the same, hearing, Justice D Y Chandrachud stated that both the man and woman does not lose their degree of sexual autonomy after marriage. He also stated that even after marriage either of the parties has the right to say ’NO’ to sex.
The concept of marital rape is known to several post-colonial countries. Countries like Australia, Canada, South Africa, UK have enacted laws that criminalises the marital rape. But still, India is one of the 36 countries that still have not criminalised the marital rape.
In the year 2015, RIT Foundation filed a petition in the Delhi High Court to criminalise the marital rape. Later, in the year 2017, All India Democratic Women’s Association, Khushbo Safi, a victim of marital rape and a man accused his wife of rape even filed for the criminalisation of marital rape exception. They sought to strike down this exception as it is violative to the fundamental right such as right to equality before law, right to dignity, right to privacy, choice and bodily autonomy. Even it creates a differentiation between the woman married and unmarried which gives right to say no to sexual intercourse. In this, there were at least three petitions filed by men’s right organisation against the criminalisation of marital rape on different and distinct grounds such as false cases, damage to marital relationship and family and also raised an issue stating about gender neutral meant to ensure that men are not unfairly targeted. But on January 7th, 2022 when the Delhi High begins hearing in the case after taking seven years to hear the petition to criminalise the marital rape. It was a two-judge bench consisting of Justice Rajib Shakdher and Justice C Hari Shankar. Both of them delivered a split verdict on the case of decriminalising marital rape in the country. Justice Rajiv Shakder held to strike down the section 375 of IPC, 1860 and states that it is violative of Article 14, 15, 19(1)(a) and 21 of Indian Constitution. But Justice C Hari Shankar upheld it validity and stated that there is an intelligible differentia between the treatment of sex with a surviving marriage and between the unmarried women. This raised a worthwhile question of law and required further consideration by the Supreme Court. The verdict delivered by Justice C Hari Shankar raised the issue of bodily autonomy of a woman whether married or unmarried is topical and important. Not only it raises questions about bodily autonomy but also about marriage as a social institution does not give a license for unleashing beasts. On march 2022, Karnataka High Court while hearing a petition filed by a woman accusing her husband under the charges of marital rape, the court stated that a brutal act of sexual assault on a wife against her will, be termed as rape as such action can cause a grave consequence not only on the physical health but also on the mental health of the wife.
Another question raised by the bench was: does criminalising marital rape will constitute to a new offense? The answer to it would be a ‘no’ because offense of rape already exists in the section 375 of IPC and by exempting the exception, it would just remove a privilege that protected married men, who do it. And even the legal academics have noted that striking down the exception, will only remove an immunity that is based on unconstitutionality.
Lastly, it is high time that the Indian Jurisprudence should understand the sanguinary nature of this provision of law and strike it down and make the society a better and safer place for women to reside at.
 Indian Penal Code, Sec 375, No.45 of 1860, Indian Code.
 Marital Rape in India: 36 countries where marital rape is not a crime, India Today, March 12, 2016
 Marital Rape: Why is it not a crime in India and can the court make it one? Scroll.in, January 12, 2022.
 Marital Rape in India: The history of legal exception, The Hindu, May 11, 2022
 Why Marital Rape is not a crime in India? (Yet), The Quint, May 11, 2022.