Written by Prachi Tripathi [i] and Nayan Saini [ii]
[i] [ii] Final year student 3 year LLB Bharati Vidya Peeth University, Pune
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
“Her friends used to tell her it wasn't rape if the man was your husband. She didn't say anything, but inside she seethed; she wanted to take a knife to their faces.”
― F. H. Batacan
The conflicts between gender roles, necessitate the betterment of the society and the laws that ensure equal protection of the rights of each gender, providing them a sense of security. A non-concluding debate has always been witnessed when a discussion about the existence of marital rape as a crime comes up. The argument that always floats over such deliberations is that a marital relationship needs not to be intervened, as it is a personal affair between a man and a woman. But is it so? Or the non-recognition of such forced encounters has actually left the sanctity of this sacrament to stand in jeopardy?
Due to enduring roots of patriarchy in India, the female section of the society has always been at a disadvantage, due to less power and trust that is subdued in them as their contribution to run a family. Such reflection can be seen in the laws that were adopted but still have not been amended according to ever-changing needs and dynamics of the society. Indian Penal Code was adopted in the 1800s according to the social needs then prevailing in society. India is still among the 36 countries that have still not penalized marital rape. The Justice Verma Committee which was formed after Nirbhaya’s Gang rape case, suggested that just being in a spousal relationship with the oppressor could not justify the act of brutality. The recommendations were overlooked with the arguments that the illiteracy rate among the women will not let them understand the very nature of such laws, whereas it was also contended that in most of the situations such laws punishing men are misused by the other gender as seen in the domestic violence cases. Both the arguments cause a contradiction among them, firstly, any law recommendation cannot be rejected on the presumption that all the population affecting it is illiterate, secondly, if such a population is illiterate how can it be presumed that such a sect will misuse this kind of law? And lastly, how can it be assumed that sexual intercourse among a couple is always happening with utmost consent just because it is happening in Sub Rosa of marriage?
In our society, the male gender is supposed to be the protector of his wife and thus it is assumed that he would do the best in his capacity to do justice with his relation. The worst part of this social evil is that it is considered as “an expression of love”, “an act of authority” or “a duty that a wife has to undergo”. To show the real manhood, he needs to show power, which becomes the root cause of this social predicament.
When it comes to a legal remedies of a woman who is suffering from non-consensual sex, law does not provide any penal punishment to the oppressor. Exception 2 of Section 375 of the Indian Penal Code, 1860 protects a married man from the offence of rape even if the sexual intercourse was without consent. This exception is the prime example of how society has failed to safeguard the female sector. The said law when adopted was based on the “Doctrine of Coverture”, which stated that upon marriage, a woman's legal rights and obligations were subsumed by those of her husband, in accordance with the wife's legal status of feme covert. Coverture arises from the legal fiction, which considers husband and wife as one person.
Violation of Article 14
The evident legal right infringement is the violation of Article 14 of the Indian constitution, the said Article provides for an intelligible differentia to be presented while treating a sect of society differently. It is necessary that there is valid demarcation for the line of discrimination. While the different court’s judgments have failed to provide the valid reason to treat rape inside and outside of a marriage differently, yet no laws have been made to rescue the victims from such malevolence. In case of Harvinder kaur v Harmandar singh,the Delhi High Court not only upheld the constitutional validity of Section 9 of Hindu Marriage Act, but also stated that marriage is a family subject and one should not break a family by stating the principles that are provided in the Constitution of India to run a nation.
By forcing a woman to live in a home that she feels is precarious for her and providing no remedies for the atrocious acts done to her body is completely sadistic.
Violation of Article 21
Exception 2 also leads to infringement of Article 21 of Indian Constitution, which is the right to have a life with dignity. Moreover, the Supreme Court in several instances has extended the meaning of Article 21, such as in Suchita Srivastava v Chandigarh Administration, the Supreme Court equated the
rights to make sexual choices with right to personal liberty,privacy, integrity, under Article 21.
Despite that, legal remedies miserably fail at providing a platform for justice.
The SC has explicitly recognized in Article 21, the right to make choices regarding intimate relations.
In K.S. Puttaswamy v. Union of India the Supreme Court recognized the Right to Privacy as a Fundamental Right of all citizens and held that the Right to Privacy includes “decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.”
Forced sexual cohabitation is a violation of fundamental right, as per the long recognized principle of Indian Constitutional jurisprudence of the “Right to Abstain” from sexual intercourse (Govind v. State of M.P; Kharak Singh v. State of U.P). Such important decisions as the right to sexual privacy cannot be converted under the reasoning of a marriage and cannot provide a license to ruin someone’s esteem daily. The Supreme Court in State of Maharashtra v Madhukar Narayan Mandikar, has alluded to one side of the security of one body, recognizing the Right to self-body determination. The very fact that there exists a right to protect oneself from a single act of an offender who is a stranger to the victim but that there exists no such security against an offence that is recurring is absurd.
Existing Insufficient Legal Remedies
Explanation I of Section 3 of the Domestic Violence Act, 2005, provides for the option of legal separation as a remedy to marital rape.
But what makes it difficult to avail such a remedy is that it is almost impossible to prove exactly what happens inside the four walls of a bedroom. Moreover, a threat is not always violent, it can be emotional too. The fear of a spouse being left in a marriage gains more weightage than the violence done to them and in most of the cases; it is this scenario, which makes the victim nod along with the offender.
A victim of marital rape can also file divorce on the grounds of cruelty under Section 13 (1) (a) of Hindu Marriage Act, 1955; but the real question lies whether the separation between the offender and the victim dissolves the offence too? No. The remarriage of such offenders will lead to a series of crimes to other victims. The real need is to provide legal punishment to such offenders and criminalize the act, providing security to not only the present victim but others too, who can fall prey to such offenders.
Consequences Of Non-Criminalisation
We are constantly feeding our children the thought that one day they have to grow up and do whatever it takes them to run a marriage even if it means slowly giving up one’s happy soul in the procedure of binding a family together. Our social stigma attached to how a woman should behave regarding her body and led to the hollow we face today. Recently, Justice Krishna S. Dixit observed in a rape case, under Karnataka High Court, “The explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman, that is not the way our woman react when they are ravished.” Whereas, the ground reality is totally different, not only a victim is tired and sleeps inside a marriage, they get up every day, perform homely duties and raise their children. It is the need of the hour that our society understands the mental conditions of a victim. “The supposed behaviour”, by a human should be immediately carved out of mind and rather “the acceptance” that all handle a situation differently shall be adopted.
The need of the hour is to bring changes in social and legal frames. India needs a law against marital rape as soon as possible. Our women are homemakers, where men need to be free from the “way they are supposed to show their manhood”, which can only be achieved by changing the social beliefs and letting go of the pressure of roles in a marriage. Each marriage is a union of two different individuals; by really letting go of the gender roles and engaging legal security in our system and by making gender neutral marital rape laws only can we achieve a society of equal traction.
Coverture Law AIR 1984 Delhi 66  AIR 2010 SC 235  Writ petition 494/2012 AIR (1975) SC 1378 (India) (1963) AIR SC 1295
 AIR 1991 SC 207
 Sri Rakesh B v. State of Karnataka, 2020 (Criminal Petition 2427 of 2020)
J.N. Pandey- The Constitution of India
Law Times Journal
PRS Legislative Research
International Journal of Advanced Legal Research