This article provides a picture of the current laws which may or may not protect married women from rape under the IPC or any other statute and the grounds for punishments, if applicable.
Under Articles 14 and 21 of the Indian Constitution are enshrined the basic right to equality and the right to life respectively, for every citizen of India. This clearly means that every individual who is a citizen of our country has the right to live a life of equality and dignity without discrimination, abuse or any form of violation of these rights. However, due to the largely patriarchal confines of the Indian marriage laws, the basic idea behind these fundamental rights is exploited blatantly and on a large scale, especially when it comes to gender based crimes or minority crimes. The Indian Penal Code (IPC) still provides that a husband is exempted from being charged for the act of rape on his wife, subject to the age of the wife. This is a clear example of the current norm being archaic and heavily biased against women in India wherein the ultimate supremacy and legal recognition is provided to the husband over the rights of the wife. Under the second exemption of section 375 of the IPC, it has been given that, “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”. Furthermore, the caveat for age was also added into the IPC only due to the several instances of child brides dying due to premature intercourse with their husbands.
Amongst the most horrific cases of marital rape was the case of Phulmoni Dasi (also known as Queen-Empress vs. Hari Mohan Maiti) in 1881. This particular case is required to be specially mentioned as it attracted a great deal of attention amongst legislators and the society as well. The facts were that Phulmoni Devi, an eleven-year-old child bride, died due to excessive bleeding when her husband, Hari Mohan, who was in his mid-thirties, tried to consummate their marriage despite the age.
Even though the autopsy report clearly indicated a ruptured vagina as the cause of death, the husband was subsequently acquitted of the charge of rape because the laws on rape exempted marital rape from the ambit of the penal law completely. The prevalent rape laws permitted a man to have sexual intercourse with his wife, irrespective of her consent, as long as she had attained the age of ten, at the time. Nevertheless, Hari Mohan was charged under Sections 304, 304A, 325 and 338 of the IPC subsequently. In this specific case, it was held by the Court that a man did not have the right to enjoy the person as his wife without any regard for the question of her safety and health.
The case of Phulmoni Dasi triggered concerns about the age of consent for child brides in particular. The colonial government, vide amendment to the Age of Consent Act, 1861 raised the age of consent from ten to twelve years in both marital and extra-marital cases, with the intention of protecting female children from such immature cohabitation and prostitution in the future. However, when the Amendment Act, 1925 was enacted, a distinction was made between the age of consent for extra-marital and for marital rape i.e. fourteen and thirteen years, respectively even though the effect of this change was diluted since the punishment for the husband was kept at a maximum of two years only.
Furthermore, the said exception for married women aged between fifteen and eighteen continued until 2018 when the Supreme Court (SC) of India in a landmark judgment held that a man is committing rape if he engages in any form of sexual intercourse with his wife if she is aged between fifteen and eighteen. This was the first time any legal recognition was given to the fact that sexual assault on a girl below the age of eighteen by a man, even if he is her husband, amounts to rape.
This however, does not provide for any protection of any woman above the age of 18 who may also be subjected to marital rape by her husband and such cases are largely prevalent all over the country and go unnoticed or dismissed since no law provides for any form of penalisation or punishment for marital rape over a woman if she is above the age of 18. Thus, if the woman is older than eighteen and married to a man who commits sexual assault, the penal provision does not apply meaning to that, there is no legal recourse for women victims of rape if the man who commits the act is their husband. This issue has been debated and discussed by women’s groups repeatedly and the National Commission for Women has even suggested that “marital sexual intercourse by a man with his own wife without consent should also be considered as sexual assault”.
Moreover, this aspect of marital rape also found recognition with the Verma Committee, which had been constituted on 23 December 2012 in the wake of the infamous Nirbhaya case. This was a three-member committee headed by Justice J.S. Verma, the former Chief Justice of the Supreme Court. The main function of this committee was to recommend amendments to the criminal law in India in order to provide for faster trials and enhanced punishments for criminals accused of committing sexual assaults against women. The Verma Committee also included within its suggestions, the absolute and complete criminalisation of marital rape, holding that, the right to life includes the right to a dignified life for every individual and that marital rape violates this basic right completely and indignifies the woman to a gross extent. While recommending such criminalisation of marital rape, this Committee made the following observations:
Women in India do face frequent incidents of discrimination and violence in the household and the workplace and several special and protective pieces of legislation have been enacted to protect a woman from such unwelcome incidents. Further, the penal consequences have been provided for the safety of women, but no laws explicitly prohibit a man from raping his legally wedded wife except under the following situations:
Thus this reflects upon the clear absence of any law for criminalising marital rape in totality and reflects the state’s inability to recognize the rights of a wife who is a woman and most importantly, also a human being who deserves to live a dignified and secure life. The Indian Constitution provides several kinds of fundamental rights, including the right to life and the right to privacy but it has failed to observe that the right to life also implies the right to live a life of dignity and marital rape attacks the basic principle behind this fundamental right completely.
Thus, at present, the only recourse against non-consensual sex for married women in India are civil provisions given under the Protection of Women from Domestic Violence Act or Section 498-A of the IPC on cruelty against a wife by the husband or a husband’s relatives. Several countries everywhere in the world are adopting stringent laws against marital rape and recognizing it as a criminal offence as well. Countries like Denmark, Sweden, Poland, Norway and the Czech Republic, have already criminalised marital rape, while others are still struggling to make marital rape a criminal offence due to the intricacies involved with such a move and the potential side effects for marital relationships and the flipside of wrongful accusations.
Most advocates of the existing laws on marital rape state that the criminalisation of marital rape will provide women an unfair advantage which could lead to a high number of false charges being brought against men. However, it cannot be denied that India’s existing rape law, which provides an exemption for the husband, runs contrary to Articles 14 and 21 of the Constitution of India entirely. Marital rape is not only discriminatory in nature, but it also violates a wife’s right to life with dignity. No woman ever surrenders her basic fundamental rights once she gets married. Thus, any law which contravenes the provisions highlighted under the Constitution needs to be abolished completely.
