Researched by: Sara Varghese 

Tell me about the court case…

The public interest litigations were filed by two NGOs—RIT Foundation, All India Democratic Women’s Association and two individuals. They are challenging a specific part of the Indian Penal Code—Section 375 that covers the crime of rape. The most recent hearing was on January 20, and the next one will be held today. 

Section 375: defines rape as when a man has sexual intercourse with a woman under six circumstances—“against her will”, “without her consent”, “with or without her consent, when she is under sixteen years of age” etc.  But it also contains a one line stating a single circumstance where none of these definitions apply: “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” It essentially gives a husband the right to rape his wife. Though the age has since been raised to eighteen.

Why does this ‘exception’ even exist?

Like many other debated provisions in the IPC, this exception is based on bad colonial laws—which in turn based itself on bad English laws. It rests on two core premises:

One: Implicit consent. This concept was laid out by Chief Justice Sir Matthew Hale in 1736: 

“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 hath given up herself in this kind unto her husband, which she cannot retract.”

In other words, once a woman marries a man, she has given her consent to sexual intercourse in perpetuity. The draft version of the IPC written by Lord Macaulay echoes this assumption “in favour of the conjugal rights of the husband.”

Two: Expectation of sex. The 19th century laws also assumed that the contract of marriage carried sexual obligations that must be fulfilled by the spouse—“independent of women’s will or consent.” In other words, it is her duty to cater to her husband’s sexual needs.

Point to note: Most Western nations have gotten rid of this exception. Former British colony Australia made marital rape a criminal offence back in 1976. But the UK did not do so until 1991. Even non-Western nations like Nepal, Malaysia and South Africa have criminalised marital rape. 

So why haven’t we done the same?

There are four core arguments made in favour of retaining the marital exception—including by the government.

A new crime: Striking down the exception will create a new crime—which is the remit of the Parliament not the courts. As one lawyer puts it: “The courts are not allowed to legislate in a surrogate manner. Their (judiciary) job is to interpret the laws and the law does not recognise marital rape.”

The pushback: Legal expert Gautam Bhatia says the claim is illogical. Section 375 clearly lays out what constitutes rape—and then arbtirarily creates an exception to the crime. In effect, it shields one specific category of criminals—i.e. husbands—from prosecution:

“To take a parallel example: Suppose that Parliament passes a law defining the offence of murder, and then adds an exception stating: ‘Provided that homicide is not murder if committed by any member of the ruling political party.’ It would be absurd to say that a court cannot strike down such a blatantly arbitrary law, because to do so would be to ‘create a new criminal offence for murder.’ It would not—it would only remove an unconstitutional shield that a class of offenders was illegitimately enjoying thus far. The same is true for the marital rape exception.”

Also this: When the House of Lord in the UK removed the exception, it noted: 

“This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.”

Preserving marriage:  Former Chief Justice of India Dipak Misra declared criminalising marital rape “will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values.” In a 2017 case, the Indian government too warned that the very concept of marital rape “may destabilize the institution of marriage.”

The pushback: The preservation of marriage is nowhere defined in the Constitution as an aim of the government or the judiciary. The Constitution, OTOH, gives great primacy to the right to equality—clearly violated by the marital rape exception: 

“[I]f sexual assault takes place five minutes before a marriage is formalised, it is rape; but five minutes after, it is not. Sexual assault will be rape if it is committed within the context of a live-in relationship—or any other intimate relationship—and yet, this magical legal immunity kicks in where that relationship has been formalised. The marital rape exception thus denies to one class of women—married women—the guarantees that law offers to all others.”

Also this: In the current case, senior advocate Rebecca John pointed out that IPC 375 defines rape on the basis of the concept of consent. And the marital exception “in effect gives a go-by” to a woman's consent just because she is married—turning them, in effect, into second-class citizens.

Hard to prove: In 2017, the government also argued that unlike other forms of sexual assault, marital rape is hard to establish: 

“What may appear to be marital rape to an individual wife, it may not appear so to others. As to what constitutes marital rape and what would constitute marital non rape needs to be defined precisely before a view on its criminalization is taken.”

False cases: The government also added this:

“[I]f all sexual acts by a man with his own wife will qualify to be a marital rape, judgment as to whether it is a marital rape or not will singularly rest with the wife. The question is what evidences the Courts will rely upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man and his own wife.”

Flowing from the above argument is the claim that there is a real danger of “false, fabricated and motivated complaints of ‘rape’ by a wife against her husband.” The government too has warned that the charge of marital rape will become an “easy tool to harass the husbands.”

The pushback: Gautam Bhatia again dismisses these arguments as “bogus,” and here’s why:

“Statistics show that on average, three-quarters of all sexual assaults are perpetrated by someone already known to the survivor. A vast majority of sexual assaults, thus, occur in intimate settings where in any event, the courts will have to sift through difficult issues around evidence and proof. Once again, there is nothing uniquely special about marriage—as opposed to any other intimate relationship—that makes these problems insurmountable.”

Also this: An analysis of government data indicates that an estimated 99.1% of sexual violence cases go unreported. More pertinently: the average Indian woman is 17 times more likely to face sexual violence from her husband than from others.

The bottomline: is best summed up by Rebecca John who argued that the original English law assumed a married woman was “either incapable of giving her consent, or her consent did not matter. The woman was treated as property, as chattel.” This was back in 1736. We are now in 2022.

Reading list

We highly recommend reading Gautam Bhatia’s excellent op-ed in Hindustan Times. Quint and LiveLaw do a good job of summarising the arguments made in court. Boom Live looks at recent court cases on the subject. This Times of India column lays out the government’s arguments defending the marital rape exception back in 2017—and which have stayed the same. Vice has more on the “marriage strike” threatened by men angry at the idea of changing the law. Indian Express looks at marital rape laws around the world.