A Colonial Vestige, Why Marital Rape Exception Has Become Untenable

NEW DELHI: With the Delhi High Court currently considering petitions on criminialising marital rape in India, it is critical to look at the history, politics and ideology of the various arguments on the subject. The debate is currently playing out not just in the courtroom but also on social media.

India is among the 32 countries that have not criminialised marital rape. Section 375 of the Indian Penal Code, which defines rape as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud” has one significant exception based on the offender’s identity – when “[s]exual intercourse or sexual acts by a man with his own wife”. If, however, the husband and wife are living separately on account of judicial separation or otherwise, this exception does not apply.

The Centre has defended marital rape immunity by arguing that it protects men from its possible misuse by their wives and that it shields the institution of marriage. The Court was told that it would be difficult to determine the withdrawal of consent by a married woman, making it hard for the prosecution to establish any kind of corroborating evidence. The Centre also contended that laws on marital rape that apply in other countries do not fit India because of its unique socio-economic factors.

The petitioners arguing for the criminalisation of marital rape have argued that the exception is violative of fundamental rights to equality, life with dignity, personhood, sexual, and personal autonomy as protected under Articles 14, 19 and 21 of the Indian Constitution. They point out that marital rape exception creates an unreasonable classification between married and unmarried women. The assumption of “consent in perpetuity” cannot be legally valid as courts have recognised that consent can be withdrawn even during/in-between sex, they added. 

Activists and scholars have pointed to the regressive, sexist, illogical and colonial nature of the law that gives men a position of unquestioned control in marital sex.

Some of the High Courts in India have taken a progressive approach on this matter. In August 2021, the Kerala High Court held that marital rape is a valid ground for seeking divorce because it is tantamount to “mental and physical cruelty”. “Merely for the reason that the law does not recognize marital rape under penal law, it does not inhibit the court from recognizing the same as a form of cruelty to grant divorce,” noted the Bench of Justices A. Muhamed Mustaque and Kauser Edappagath. 

The offence of marital rape is “a non-consensual act of violence perversion by a husband against the wife where she is abused physically and sexually”, said a single-judge bench of the Gujarat High Court in Nimeshbhai Bharatbhai Desai v. State of Gujarat while calling for total abolition of the marital rape exception. 

But the Union Government has argued that the Courts can only issue an advisory, and not dictate the final outcome, which is otherwise the role of the Legislature. In its written submissions, it says, the “removal of exception 2 of Section 375 IPC which consciously would be akin to legislating a separate offence which can be done only by the legislature as per the doctrine separation of power prescribed in the Constitution of India”.

Congress MP Shashi Tharoor introduced a private member’s bill, The Women’s Sexual, Reproductive and Menstrual Rights Bill, 2018 in the Lok Sabha to amend certain provisions to “emphasise on the agency of a woman in her sexual and reproductive rights and to guarantee menstrual equity for all women by the State”. One of the suggestions was to criminalise marital rape to ensure a woman’s right to sexual autonomy even after marriage. However, the bill lapsed after it failed to garner support from the government.