In what could lead to a landmark ruling on the long-standing issue, the Supreme Court of India will hear a group of petitions on the punishability of marital rape.
The Supreme Court of India is set to hear petitions about the constitutionality of the ‘marital rape exemption’ on May 9, 2023.
As of 2019, marital rape has been criminalized in 150 countries, but marital rape under the Indian Penal Code (IPC) only applies in the situation of “non-consensual intercourse with a wife who is aged between 12 and 15 years”. Where the exception does not apply, the IPC (Section 375) states that “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
However, in 2017, the Supreme Court in Independent Thought v. Union of India and in 2022 the High Court in RIT Foundation v. Union of India held that the part of Exception 2 to section 375 which excused marital rape of minors between the ages of 15-18, was unconstitutional, which means that the term 15 years in the exception now needs to be read as 18 years. Currently, there are no criminal penalties for marital rape when a wife is over 18 years old.
Challenging the exception
The law is based on the archaic patriarchal notion that a woman is the property of her husband, and through marriage, a woman gives irrevocable consent for life to have sex with her husband on demand. This puts women in a vulnerable position within a marriage, leaving scope for an abusive spouse to force sex on his wife through intimidation, threat, force, and other forms of abuse. In the absence of a law that protects women against marital rape, women who are forced into having non-consensual sex with their husbands are left with no means of legal remedy or relief.
The apex court has also sought a response from the Government of India regarding its position on whether or not non-consensual sexual intercourse by a man with his wife should come under the ambit of a punishable offence.
These developments came following a split decision from the Delhi High Court in 2022 on whether or not to prosecute husbands for non-consensual sex with their wives. As part of that judgment, Judge Rajiv Shakdher argued in favor of a reform of the colonial Indian Penal Code, stating that “it would be unfortunate if a married woman’s plea for justice went unanswered.” He further stated that the “right to withdraw consent at any given point in time forms the core of the woman’s right to life and liberty, which encompasses her right to protect her physical and mental being.”
Defining marital rape
The term marital rape (also referred to as spousal rape) refers to non-consensual intercourse by a man with his wife, obtained by force, threat of force or abuse, physical and psychological violence, or when she is unable to give consent. It covers all forms of penetration (whether anal, vaginal, or oral) perpetrated against a woman’s will or without her consent.
The data is distressing
The absence of legal protection against marital rape is an urgent women’s rights concern for India, given that estimates from the third (2005-06) and fourth (2015-16) rounds of the National Family Health Survey (NFHS) revealed that the prevalence percentage of Intimate Partner Violence (IPV) against women ranges between 3% to 43% in different states of the country. The 5th round of the survey, held in 2019-20 and conducted in about 637,000 sample households in 707 districts of 28 states and eight union territories, suggests that 1 in 3 women in India aged 18-49 experience spousal violence, with at least 5%-6% of the women reporting sexual violence. The NFHS survey findings found a strong link between sexual and physical violence, so it recorded marital sexual violence under the umbrella of spousal violence. A breakdown of the findings shows that 5.6% of married women were physically forced to have sexual intercourse with their husbands, 2.7% of women were physically forced to perform sexual activities that they did not wish to perform, and 3.7% of the women were forced to perform sexual activities against their will through threats of physical violence.
Under-reporting hides true scale of the issue
The NFHS survey cautions against “under-reporting” as anecdotal evidence gathered by the study indicates that approximately 9 out of 10 victims of intimate partner violence refused to disclose the violence or abuse they suffer due to a number of factors, including fear of stigma, reprisals, and dependence on the spouse. The NFHS revealed that according to the data collected until 2021, 82% of married men were sexually violent with their wives, as were 13.7% of former husbands, making spousal sexual violence a pressing concern. It further revealed that 90% of the survivors who faced spousal sexual violence refrained from taking any action or seeking help.
Despite the situation, marital rape in India is still viewed as a domestic violence issue. Therefore, the remedies available to a survivor are civil in nature and are limited to “protection orders, judicial separation, and monetary compensation” under The Protection of Women from Domestic Violence Act, 2005.
In this environment, the violation of a survivor’s right to consent, bodily autonomy, and integrity goes unaddressed, relegating women to a position where they cannot exercise their agency and equal rights within a marriage. The report, Sexual Violence In South Asia: Legal And Other Barriers To Justice For Survivors by Equality Now and Dignity Alliance International discusses in detail the protection gaps in rape laws and barriers to accessing justice that continues to lead to effective denial of justice for all survivors of sexual violence in South Asia, including surivors of marital rape.
International push for reforms
The international human rights framework and jurisprudence recognize “rape as a human rights violation and a manifestation of gender-based violence against women and girls that could amount to torture,” including marital rape. Article 2 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) states that “violence against women shall be understood to encompass […] physical, sexual and psychological violence occurring in the family, including marital rape”. Furthermore, CEDAW Committee’s General Recommendation 35 urges States to take steps to ensure that “sexual assault, including rape, is characterized as a crime against the right to personal security and physical, sexual and psychological integrity and that the definition of sexual crimes, including marital and acquaintance or date rape, is based on the lack of freely-given consent and takes into account coercive circumstances. Any time limitations, where they exist, should prioritize the interests of the victims/survivors and give consideration to circumstances hindering their capacity to report the violence suffered to the competent services or authorities.”
The Report of the Special Rapporteur on Violence against Women, its causes and consequences urged India to “amend the Criminal Law (Amendment) Act, ensuring that marital rape is defined as a criminal offence, as requested by the Committee in its previous concluding observations, expanding the scope of “protection of the law to cover all prohibited grounds of discrimination” to better protect the rights of women and girls.
Poised for a landmark ruling
The hearing by the Supreme Court of India on May 9 on the matter of marital rape is poised to be a landmark development in the long-standing issue. It will help redefine Indian women’s rights and agency within the institution of marriage.
Our 2022 brief, Words And Deeds: Sex Discrimination In Marital Status Laws makes clear that “If women and girls are required under the law to “obey” their husbands and/or male guardians they may face violence, including marital rape, and be prevented from leaving home, working, choosing where to live, and be treated less equally by other family members.”
You can follow live updates on the ruling on the official website of the Supreme Court of India.