The Supreme Court of India. Photo: Wikimedia Commons
The Supreme Court of India. Photo: Wikimedia Commons

Law and justice are not always the same. When they aren’t, destroying the law may be the first step toward changing it.” – Gloria Steinem

The word “rape” draws its origin from the Proto-Italic term rapio, which meant “to snatch, to grab.” Hence rape can be defined as the ravishment of a woman without her consent by using force or sometimes fear.

It involves sexual intercourse with a woman without her consent. It is not only a sexual assault but a heinous crime against humanity. The Supreme Court of India judiciously termed it as “deathless shame and the gravest crime against human dignity.”

Now it is assumed that rape is usually done by a stranger with evil intention. One does not think of rape in the context of marriage; it is often difficult to see how a husband can rape his spouse.

Marital rape is the act of sexual intercourse with the spouse without consent. Now, “consent” is the key element here. It is commonly understood that no consent is required to have sexual intercourse with spouses as they are bound by conjugal rights

Women are often considered a man’s property, so it is assumed that he has no interest in harming his property.

Marital-rape cases are complex to understand, as the victim may not see herself as a victim, let alone report the crime. It is because of this that most marital-rape cases are unreported. Men think they have every right to exploit their wives without their consent. Women remain silent as they are financially and socially dependent on their husbands. 

Throughout history, it has been accepted that husbands have a “license to rape.”

Marital rape and laws in India

In India in 2020, 77 rape cases were reported every day according to a report by the National Crime Records Bureau. There are no statistical data for marital rapes, as they are often unreported.

The Indian Penal Code (IPC) defines rape and sets out punishments for it, but it nowhere mentions the consequences of marital rape. In fact, Section 375 of the IPC says, “Sexual intercourse or sexual acts by a man with his wife, the wife not being under 15 years of age, is not rape.”

Women in India currently have just one recourse to deal with marital rape, Section 498-A of the IPC, which deals with cruelty and the right to protect themselves against perverse sexual conduct by the husband. Despite this vague stand on marital rape, the judiciary and Parliament have been silent. There is thus an urgent need to extend the definition of marital rape in the law.

Why is marital rape still not a crime?

From banning “triple talaq” to raising the legal age of marriage from 18 to 21, India has seen many progressive initiatives for women in the past few years. So what is the main obstacle to criminalizing marital rape?

First, some feel that if marital rape were to become a crime it would destroy the social structure of the family and lead to gender bias in the courts.

The Delhi High Court said recently, “If [a] sex worker has the right to say no to sex, why should a wife be less empowered?” This created outrage among activists and netizens. Many argued that it would lead to false cases being registered, which is not good for society, and men would be treated as scapegoats. It is often argued that a man would be unable to prove his innocence as what happens behind four walls is a private matter. 

According to the NCRB report cited above, many rape and dowry complaints turned out to be false and more than 70% of the cases ended in acquittal. So it can be argued that criminalizing marital rape would make men vulnerable to harassment by their wives.

There is no denying the fact that marital rape does exist, but the courts must seek a middle path to achieve justice.

The exemption of marital rape in the pursuit of criminal law upholds the assumption that a wife is the husband’s property and he can do whatever he likes. That needs reform. All laws can be misused, but that doesn’t mean we should not have them; rather, we should focus on how to establish them with proper research and well-defined models.

Akshit Soni is a student at the Geeta Institute of Law in Panipat, Haryana.