Marital Rape In India: Analysis Of Section 375, Indian Penal Code

Law is meant to fulfil and subserve the rational aspirations of the members of society. No law can work in vacuum. As society is in a state of flux, therefore law too must respond to the changing needs and aspirations of its members. Women in India are subject to different forms of violence. Of the various forms of violence against women, rape is regarded as the most detestable and heinous, which not only violates her physical integrity but shatters her emotionally beyond repair. In order to protect women against bodily violence, number of legislations have been enacted .The Constitution of India being the supreme law of the country guarantees to every person equality before law. Furthermore article 21 of the constitution guarantees to every person right to life. Section 375 of the Indian Penal Code defines rape and guarantees protection to women against rape. Section 376 prescribes the punishment for it. Apart from it sections 376A-376E of IPC prescribe different punishments for various forms of rape. Though the law relating to rape is quite stringent in India prescribing deterrent punishment but the discriminatory nature of this provision vis a vis married women compels one to analyse its efficacy on the touch stone of the equality principle enshrined in the Constitution of India. The current topic analyses the efficacy and legality of Exception 2 to Section 375 of IPC. The author endeavours to test the effectiveness and rationality of Exception 2 to section 375 of IPC in light of article 14 of the Constitution of India.

Section 375 IPC

The word ‘rape’ has been derived from the term ‘rapio’, which means ‘to seize’. Rape is therefore, a forcible seizure, or the ravishment of a woman without her consent, by force, fear or fraud. It involves coercive, non consensual sexual intercourse with a woman. The Supreme Court of India has described it as ‘deathless shame and the gravest crime against human dignity’[1]. Section 375 of IPC defines rape as a sexual intercourse with a woman against her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or is of unsound mental health and in any case she is under 18 years of age.

The definition of rape as contained in section 375 includes non consensual sexual intercourse by a man with a woman against her will, which means that with respect to women above 18 years of age it must be proved that the act was non consensual and was committed against her will. However with respect to a girl below 18 years of age every sexual intercourse whether with or without her consent amounts to rape. The Criminal Law ( Amendment ) Act,2013 altered the definition of rape and expanded the scope of section 375 to include penetration of other object or any other body part into a woman’s body part .Exception 2 to section 375 deals with marital rape and punishes it to the extent when the wife is below fifteen years of age. It states that sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age is not rape.

Marital rape: Exception to section 375 IPC

Marital rape is one of the most repugnant practices which is hidden behind the veil of marriage. While there is no legal definition of it in India, it may be understood as any unwanted intercourse or penetration (vaginal, anal, or oral) obtained by force, threat of force, or when the wife is unable to consent. Despite the prevalence of marital rape in India, this problem has received relatively little attention from social scientists, practitioners, the criminal justice system, and larger society as a whole. Today there are many countries that have either enacted marital rape laws, repealed marital rape exceptions or have laws that do not distinguish between marital rape and ordinary rape. These countries include: Albania, Algeria, Australia, Belgium, Canada, China, Denmark, France, Germany, Hong Kong, Ireland, Italy, Japan, Mauritania, New Zealand, Norway, the Philippines, Scotland, South Africa, Sweden, Taiwan, Tunisia, the United Kingdom, the United States, and Indonesia. Turkey criminalized marital rape in 2005, Mauritius and Thailand did so in 2007. The criminalization of marital rape in these countries both in Asia and around the world indicates that it is now recognized as a violation of human rights. In India there have been plenty of legislations and enactments passed in regard to violence against woman in her own house like laws against dowry, cruelty, domestic violence and female infanticide but Marital rape one of the biggest and the most shameful wrong is recognized as a sacrosanct practice.

One of the reasons for not criminalizing marital rape is the sanctity attached to the institution of marriage and sexual intercourse being regarded as an essential requirement for the continuity of marriage. It is believed that criminalizing marital rape would negatively affect marriage and might result in breakdown of marriage. It is also strongly believed that a wife by offering herself completely to her husband i.e bodily and emotionally would fulfil her matrimonial duties towards her husband .Another reason for not criminalizing marital rape is that proving a rape in a marriage would be very difficult. There is also an apprehension in the minds of many, that criminalizing marital rape might embolden the wife and enable her to misuse it against her husband by blackmailing him to fulfil her ingenuine demands.

Exemption to Marital rape vis a vis Article 14 of the Constitution

Exception 2 to section 375 exempts non consensual sexual intercourse by a husband with his wife, the wife being over fifteen years of age from the definition of rape and thus immunizes such acts from prosecution. On the other hand it criminalizes non consensual sexual intercourse by a man with his own wife, the wife being under fifteen years of age. The aforestated exception to section 375 is condemned as discriminatory and violative of articles 14 and 21 of the Constitution of India. Article 14 of the Constitution of India guarantees to every person equality below law. To supplement it, Article 21 of the Constitution of India guarantees right to life to every person. Article 14 guarantees a fundamental right of equality before the law and equal protection of laws to every citizen of India[2]. The said article does not stipulate that every individual to be treated equally in every circumstance but requires that the equals within a society are not treated unequally. In view of the fundamental ideology behind Article 14, the Supreme Court of India recognized that valid classification can be made in the following manner:

  1. The classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others; and
  2. The differentia must have a rational relation to the object sought to be achieved by the legislation[3]. Thus any law which makes a classification which is not based on intelligible differentia is deemed to be outside the framework of the Constitution

The doctrine of marital exemption to rape does not pass the test of valid classification under Article 14 of the constitution and must be declared as unconstitutional as it indiscriminately discriminates between women below 15 years of age and women above fifteen years of age. Thus all acts of non consensual intercourse by a husband with his wife must be criminalized as marital rape, irrespective of the age of the wife.

Exemption to Marital rape vis a vis Article 21 of the Constitution of India

Article 21 of the Indian Constitution guarantees to every person right to life and personal liberty[4]. Post Maneka Gandhi v. Union of India[5] the ambit and scope of article has greatly expanded and it has become the source of all forms of right aimed at protecting human life and liberty. In Munn v. Illinois[6] the meaning of the term ‘life’ has been expanded to include ‘something more than mere animal existence’, which was further affirmed by the Supreme Court of India in the case of Bandhua Mukti Morcha v. Union of India[7]. In view of this expanding jurisprudence of Article 21, it can be said that the doctrine of marital exemption violates a host of fundamental rights that have emerged from the wider interpretation of article 21. The marital exemption to rape violates a woman’s right to privacy, right to bodily self-determination and right to good health, all of which have been recognized as an integral part of the right to life and personal liberty at various points of time.

In view of the aforestated analysis Marital rape must be criminalized in India.

Disclaimer: the views are Personal

Ms Ritu Panta

PhD Scholar

H.P. NLU, Shimla

[1] Bodhisattwa Gautam v. Subhra Chakraborty AIR 1996 SC 922.

[2] The Constitution of India, Article 14

[3] State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75, 80.

[4] The Constitution of India, Article 21.

[5] AIR 1978 SC 597.

[6] 94 US 113 (1877).

[7] AIR 1984 SC 802, 811.

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