Introduction
This piece examines the marital rape exception in the Indian law and how it perpetuates gender-based violence. It analyses the legality and justifications for this exception, highlighting contradictions with international human rights standards, particularly those in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the International Covenant on Civil and Political Rights (ICCPR), and the Universal Declaration of Human Rights (UDHR). The piece also considers potential violations of treaty obligations by the Indian State and gives special attention to CEDAW’s General Recommendation No. 35, which addresses gender-based violence and discrimination against women.
Laws Against Rape in India and Their Exception
The Indian legislature has made significant strides in recognizing crimes against women. Major Supreme Court rulings (like the Vishaka Judgment on the prevention of sexual harassment of women at the workplace) have sought to uphold women’s rights under the Indian Constitution and international treaties such as CEDAW. Moreover, the amendments to rape laws under the Indian Penal Code, and various legislations such as the Domestic Violence Act, 2005 and the Sexual Harassment of Women at Workplace Act, 2013 showcase the commitment of the Indian legislature in ensuring women’s rights. However, the marital rape exception casts doubt on the Indian government’s commitment to these rights.
The IPC defines rape under Section 375, which falls under the category of sexual offences, and outlines several conditions under which a man is said to commit rape. However, exception 2 to the section exculpates a man who has sexual intercourse with his wife, stating that such an act shall not constitute rape (the same has been provided as exception 2 of s. 63 under the Bharatiya Nyaya Sanhita, 2023). Marital rape is a form of sexual violence against women and denies women their right to life and health under the Indian Constitution. Married women in India have no recourse in criminal law for sexual violence committed against them by their husband. The situation is only worsened by the fact that such intimate partner violence can not only physically affect women but also psychologically, hence severely infringing their right to a dignified and healthy living. Such an exception in the Indian law violates the rights of women under Article 14, which guarantees equal protection of the law and Article 21 that is the right to life of women, which includes a dignified and healthy life under the Constitution.
Arguments against Criminalisation of Marital Rape
The marital rape exception developed as a consequence of law treating women without agency, that is, the law does not recognise women’s capacity to make decisions regarding their own body and desires. This idea emerges from the doctrine of coverture and implied consent under common law. The doctrine subsumes the identity of the woman under the identity of the man after marriage and assumes that there is an implied consent to engage in sexual acts in a marital relationship. Another justification is in the historical understanding of women as chattel in law. This implies that a woman is in need of protection and hence, incapable of owning their own autonomy. Such a belief leads to the conclusion that a crime cannot be done by a man against his own property. If the woman is the property of the man after marriage, then no crime can be committed in such a relation as the woman is not the possessor of her sexual agency, but the man.
Another justification is in the notion of upholding cultural and social norms in India. This notion focuses on the aspect of matrimonial union in India and the consequences in which such a union also connects throughout the community. Hence, many parliamentarians believe that intrusion in the matrimonial lives by criminal law will reduce the possibility of amicable dispute resolution in India and would also affect the religious sanctity of marriages. Moreover, the idea of a united marriage life and the non-interference by the government, is also rooted in anti-colonial notions that tried to separate the public from the private and hence demarcating the permissible extent of British control and the subsequent importance given to cultural essentialism.
Finally, another justification for the exception is in the notion that without such an exception vindictive wives will misuse the provisions to charge their husbands with false criminal charges. The privacy argument has also been used to justify this narrative, that is, the State is not bound to interfere in matters that are private, which includes marital relationships. From the above paragraphs, we can understand the way in which arguments against criminalisation of marital rape have survived. These arguments not only deny women their basic rights enshrined in the Constitution but are also untenable in the light of the various women-centric legislations that have managed to pierce this veil of marital life. Moreover, an analysis of international law on human rights will demonstrate that such arguments are not just baseless but also highlight the failure of the Indian State to fulfil its international obligation for the protection of rights of women.
Analysis on Treaty Provisions and Human Rights Law
As per Article 51 (c) of the Constitution of India, the Indian State must fulfil its treaty obligations under international law. India has ratified various international human rights treaties like the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and has also signed the Universal Declaration of Human Rights (UDHR). As per Article 1 of CEDAW, discrimination against women means the restriction and the curtailment of the enjoyment of their human rights on the basis of their sex, irrespective of their marital status. As per Article 2 (b), States must condemn all forms of discrimination against women and must take legislative measures to eradicate such forms of discrimination. Further, as per Article 6 of the ICCPR, everyone has the right to life, which includes dignified living and health, that cannot be arbitrarily deprived by the State.
An analysis of the above provisions read with Article 15 of the CEDAW, that women are provided equality with men before the law by State parties, undermines the narrative of the first justification given for the marital rape exception. These articles clearly indicate that women are to be considered as autonomous citizens by the State capable of being in control of their agency. This means that States cannot provide exceptions on the rights enjoyed by women on the narrative of them being subordinate to men. Hence, the implicit common law justifications of doctrine of coverture and implicit consent of women in marital relations that allow the marital rape exceptions cannot be sustained in the light of such provisions under the CEDAW. Article 15 directly contravenes the understanding of women as property. Furthermore, sub-clause 2 and 3 of the Article provides for the capacity of women to be recognised as equal to the capacity of a man under civil laws.
Moreover, the justifications given on cultural essentialism and religious grounds contravene the provisions under Article 16 which provides that men and women in a marital relationship must have equal rights. Justification allowing marital rape exception on cultural lines further fails as it hinders the enjoyment of women’s right to a equal marital life granted by Article 1 and 2. Finally, as per Article 3 of CEDAW, state parties are required to eliminate social and cultural prejudices against women that lead to their subordination in the society. Moreover, as per Article 1 of the UDHR, everyone is to be considered equal in rights and dignity. Hence, the justification of the exception on misuse, violates the rights of women to recognise their equality in dignity by the law and also contradicts the very notions and stereotypes that the State parties are required to eliminate as per Article 3 of the CEDAW. In fact, the perpetuation of such justifications and the importance given to the private nature of marriage by the State, only adds to the stereotype and cultural acceptance of women being subordinate to men.
As per the General Recommendation No. 35 of the CEDAW, the Committee held that gender-based violence was one of the fundamental reasons for the subordinate position of women in the society and that such violence affects women throughout their life. It also noted gender-based violence occurs in various forms that is physical, sexual, psychological and harassment and considered rape as a gender-based violence. The Committee noted that “Women’s right to a life free from gender-based violence is indivisible from and interdependent on other human rights, including the rights to life, health, liberty and security of the person, equality and equal protection within the family, freedom from torture, cruel, inhumane or degrading treatment, and freedom of expression, movement, participation, assembly and association.” (CEDAW General Recommendation 35 on gender-based violence against women, updating general recommendation No. 19 (26th July 2017).
Hence, from the above we can conclude that marital rape being a form of gender-based violence against women should be criminalised by the Indian State due to its obligations under CEDAW and other international treaties like the ICCPR and UDHR. As the Committee notes, that rape constitutes a violation of women’s liberty and being interdependent on human right to life, the exception provided to marital rape goes against the basic jus cogens norms in International law.
The Committee has noted that as per the articles of the Convention, State parties have an obligation to enact legislation that prohibit all forms of gender-based violence. Hence, marital rape being a form of gender-based violence that directly affects the right to life and dignified living of women, is required to be prohibited by the Indian State under its international law obligations. Moreover, as per the general legislative measures recommended by the Committee, the legislation that provide exception to marital rape are to be characterised as a crime based on the lack of free consent.
Conclusion
This article has analysed India’s rape laws and its marital rape exception, determining that the justifications for this exception violate both the Indian Constitution and international obligations under treaties like CEDAW, ICCPR, and ICESCR. Marital rape is a form of gender-based violence rooted in patriarchal views, and the Indian government’s reluctance to remove this exception demonstrates a failure to uphold its duty to prohibit all forms of discrimination and violence against women. The Indian Supreme Court should consider these international obligations when assessing the legality of the marital rape exception, which violates basic human rights.
Shrishti Sharma is a fifth-year law student at Jindal Global Law School.
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