Introduction
Marital Rape is one of the most contentious issues in the current Indian legal framework. On February 10, 2025, a recent blow came from the Chhattisgarh High Court in its recent judgement of Gorakhnth Sharma v. State of Chhattisgarh where Justice Narendra Kumar Vyas overturned the conviction of a 40-year-old man for having unnatural sex and intercourse with his wife without her consent. The single-judge bench of Justice Narendra Kumar observed:
“Thus, it is quite vivid, that if the age of wife is not below age of 15 years then any sexual intercourse or sexual act by the husband with her wife cannot be termed as rape under the circumstances, as such absence of consent of wife for unnatural act loses its importance, therefore, this Court is of the considered opinion that the offence under Section 376 and 377 of the IPC against the appellant is not made out.”
The judgement suffers backlash on another ground as well. It fails to recognise the landmark judgement of the Hon’ble Supreme Court in the case of Independent Thought v. Union of India & Anr. (2017) where Exception 2 to Section 375 of IPC was struck down in so far as it immunised a husband from prosecution for sexual intercourse or sexual acts with his own wife whose age was below 18 years.
The Supreme Court observed that:
“The provision is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Articles 14, 15 and 21 of the Constitution, apart from being inconsistent with the provisions of POCSO, which must prevail.”
The ruling increased the age threshold from 15 years to 18 years by observing that:
“Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape.”
At present, the pleas challenging the exception to Section 375 of IPC and criminalising marital rape are pending before the Supreme Court of India for hearing. The stance of the Indian government regarding the criminalisation of marital rape has remained the same. The government has opposed petitions that seek criminalisation of marital rape, by labelling them as “excessively harsh”.
Marital rape affects countless Indian women. Thus, it becomes imperative to look at the question: Whether Marital Rape be considered an intersectional issue or not? While one section of society is of the opinion that it should be considered an intersectional issue, the other part fails to agree. After researching this issue, I believe that marital rape is important, though overlooked, intersectional factor contributing to the marginalisation and subjugation of the married women in the country.
The Intersectionality of Marital Rape
Marital rape is an intersectional factor as its consequences and impact on women vary across caste, gender, nationality, religion, and various other factors. Marital Rape denies women their inherent right to bodily autonomy, where lower-caste, economically marginalised, less educated women are at more risk to suffer from the grave issue of marital rape.
Almost every religion has normalised the patriarchal structure and the control of men over women. If we further look at the cases of disabled women, they are more vulnerable to facing sexual exploitation at the hands of their husbands due to physical constraints. In the Indian framework, the fight for the human rights of women will remain incomplete, without criminalisation of marital rape and adopting an intersectional approach.
A Knot, Not a Noose: Why Marriage Doesn’t Erase Consent
Marital rape is forced sexual intercourse in marriage without the consent of the woman and has serious physical as well as emotional consequences. It takes on a complex nature through the social and legal fabric that makes up so many societies. There are very few countries, mostly Western, that have recognised marital rape as an offence and a violation of the legal rights of women. Australia. Denmark, Malaysia, Sweden, Canada, the United States and New Zealand have criminalised marital rape. In India, marital rape has not yet been criminalised. In 2005, India classified marital rape as domestic violence under the Protection of Women from Domestic Violence Act, 2005. Thus, it is quasi-civil law, which means a woman can go to court to seek a Protection Order and compensation from her husband against any sexual abuse, and if the husband violates court orders, a criminal case will be registered against him.
Let’s try seeking the answer to the question: “Does Marriage mean irrevocable implied consent?.” Before delving into the same, I would like to mention the legal principle validating marital rape for centuries in many countries. Justice Sir Mathew Hale, former Chief Justice in the English Court, observed and ruled that:
“The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife had given up herself in this kind unto her husband, which she cannot retract.”
Thus, according to this reasoning, her willingness or consent is considered irrelevant. It assumes that a woman has given implied consent to her husband in marriage.
For centuries, this doctrine had prevailed over almost the entire world. It was only in 1922, the Soviet Union became the first country and recognised the need to punish marital rape. However, even 103 years later, this archaic doctrine continues to dangle over the necks of Indian women.
Marriage implies that you have an emotional and physical or sexual companionship, but does that mean consent is inherent? In India, it is assumed that the minute the woman gets married, she consents to sex for all time immemorial. However, this goes against the very basic principle of enthusiastic consent. Consent has to be freely given, reversible, informed, enthusiastic and specific. According to data, in India, one in every 25 women was reportedly subjected to sexual violence by her husband, and these are just the reported cases.
In 2012, the Justice Verma Committee recommended that the Exception to Section 375 of the IPC be removed. Furthermore, Justice M. Nagaprasanna in the case of Hrishikesh Sahoo pointed out that: “no exception under law can be so absolute that it becomes a license for the commission of a crime against society.”
The then Congress government opposed the same, citing concerns about the sanctity of marriage. Over the last ten years, the NDA government has also maintained the same stance. Thus, the two parties are clearly divided by party lines; however, united in turning a blind eye to the sensitivity of women’s bodily autonomy.
The government points out that, in India, we are suffering from illiteracy, and poverty and are divided by religious beliefs, thus, it is very difficult to recognise marital rape as an offence. However, the question is: Don’t these factors themselves perpetuate the violation and exploitation of women's rights? By not criminalising marital rape, we are not just making them suffer from the socio-legal factors but also from the sexual violence at the hands of their own husbands.
Moreover, I would like to point out that: Has poverty prevented the government from demonetising currency? Or did religious beliefs come in the way of announcing overnight lockdowns during COVID-19? The answer is “NO” then why married women but not Indian men have to worry about the sanctity of marriage when it comes to sexual consent, despite this entrenched resistance?
A family health survey has revealed that about 30% of Indian women have experienced some form of spousal violence, and 6% of women have experienced sexual violence from their husbands. That is a million women whose rights are curtailed by our country’s institutions. Moreover, these are just the reported cases. The gravity of the issue is much more serious than our imagination.
Where India is clinging to its colonial-era laws, much of the world has already moved further. The United Kingdom has already criminalised marital rape in the year 1991; Nepal and Bhutan have already beaten us in 2004; and even Pakistan, our neighbouring country, has made certain progressive steps by criminalising certain forms of sexual violence in marital institutions through an amendment to Section 375 of the Pakistan Penal Code (PPC) in 2021 though it needs to be noted that not every act of non-consensual sexual intercourse is criminalised in Pakistan.
The Counterargument: The #MarriageStrike Debate
In 2022, a curious hashtag “MarriageStrike” and a tweet by Ashraf Ansari (an active men's rights activist) were trending on Twitter (present-day ‘X’).
“Having sex with your wife is a crime but your wife having sex with someone else is not a crime.”
The quote itself was flawed:
Firstly, having non-consensual sex with your wife is not yet a crime in India. Let's suppose, India sees the light and takes the positive step to recognise marital rape as a crime. Here also, consensual sex with a wife will not be an offence; rather, indulging in non-consensual sex without her willingness will be considered against the law.
The second contention is also misleading as adultery has been decriminalised in India, and both husband/wife having sex with someone else is not an offence; rather, it is a ground for divorce under the current Indian legal framework.
While researching this topic, I came across a statement by The Print’s journalist, where she highlighted that “In India, women are safer outside a marriage than within one.” The journalist pointed out that “NDA is neither the first nor will it be the last government to fail Indian women.” This statement can further be proven if we look at our societal structure.
The Central government’s stance that marital rape should not be criminalised is disappointing. In an affidavit to the Supreme Court, which is reviewing petitions challenging the constitutionality of marital rape, the Union Ministry of Home Affairs asserted that labelling marital rape a criminal offence was “excessively harsh” and “could destabilise the institution of marriage”.
Furthermore, recognition of marital rape as an intersectional factor might be considered a concern by those who are against the criminalisation of marital rape and, further believes that this will result in the introduction of changes disrupting conjugal relationships and the institution of marriage.
However, these assertions can be negated on three basic grounds:
The continuation of conjugal relations can never be more important than body integrity.
Marital Rape violates an individual’s basic human rights.
A married woman, along with everyone else, has a right to bodily autonomy.
Way Forward: A Fight for Rights
Marital rape has remained the least addressed form of sexual violence against women. It is also called Sexual Intimate Partner Violence (IPV). Underreporting of sexual IPV is one of the major issues that India is suffering from. According to the available data, only about 10% of victims report sexual IPV.
Sexual intercourse by a husband without her wife’s consent amounts to a violation of the human rights to liberty and dignity. The Supreme Court itself in the case of Independent Thought v. Union of India, (2017) observed that “Married Woman cannot be treated as a chattel– needs care, protection and rehabilitation.”
The author is of the opinion that India needs to take a bold step by criminalising marital rape. Women are one of the vulnerable groups, and not recognising their consent in activities involving their bodies is a non-recognition of their basic human right. This further makes them more vulnerable to exploitation in Indian patriarchal society.
As we stride into 2025, I hope India will soon criminalise marital rape, as lack of comprehension of consent creates a hollow where half of our population is expected to leave the fundamental rights at the threshold of their marital homes, by telling the female population that the bodies are no longer their own choice because they are married. In any case, the constitutional rights of women should not be trampled for the sanctity of marriage.
References:
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