Over 100 Nations Have Criminalised Marital Rape, Where Is India At?

While exonerating a husband under section 377 of the Indian Penal Code for allegedly committing an 'unnatural offence' with his wife, the Allahabad High Court has observed that marital rape cannot be considered an offence under the Indian Penal Code (IPC) if the wife is 18 or above. The bench also referred to the judgment in the case of Independent Thought Vs Union of India (2017) where the Supreme Court had held that any sexual intercourse between a man and his wife aged between 15 to 18 years would amount to rape.

High Court observed that marital rape has not been criminalized in this country as yet. However, some petitions are pending for consideration before the Supreme Court for criminalizing marital rape, as currently there is no criminal penalty for marital rape when the wife is of or above 18 years of age

Why Has India Not Criminalised Marital Rape Yet?

According to the National Family Health Survey (NFHS-5), one in five women feel that they cannot refuse sex to their husbands and 34 per cent of men find it unacceptable if their partners turn down sexual advances because they are tired. The survey also found that one-third of all Indian women have experienced physical or sexual violence. Worse, 77 per cent of them have never sought help or told anyone about it.

Over the years, more than 100 countries have criminalized marital rape. Yet, it continues to enjoy legal sanction in India. The exception is rooted in the patriarchal notion that consent for sex is “implied” in marriage and that a wife cannot retract it later. Sexual violence destroys the principles of equality and consent as well as that of individual and bodily autonomy. Also, marital rape cannot be treated as legal once a woman turns 18. In this case, the accused is reported to have sexually, mentally and physically abused his wife. The abuse and torture by the husband cannot be overlooked.  

Marital rape puts women in a vulnerable position within a marriage, giving a free hand to an abusive spouse to force sex on his wife through intimidation, threat, violence, 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. As the high court bench noted, the proposed Bhartiya Nyay Sanhita, which is likely to replace the Indian Penal Code, does not have a section 377-like provision. The government must consider the provision in the new law to make the marital rape illegal irrespective of age.

The legislation alone is insufficient, as evidenced by the limitations of laws addressing domestic violence. What requires transformation through Social Behavior Change Communication is the toxic mindset that views the female body as an object of ownership and is quick to mete out severe punishment for women's perceived defiance, exemplified by acts like marital rape. According to the NFHS-5, a woman’s experience of violence declines sharply with increased schooling and income.  The role of education and economic autonomy in eradicating patriarchy cannot be overstated.

Authored by Poonam Muttreja, Executive Director, the Population Foundation of India.

Views expressed are the author's own.