Sex with Wife without her Consent is Rape

Woman’s consent in martial sex is on focus

The question of wife’s consent in sex within the ongoing marital relationship is again on sharp focus.

The split verdict of the two judge Bench – Justice Rajiv Shakdher and Justice C Hari Shankar – of the Delhi High Court on 11th May 2022 has reignited the issue. Justice Rajiv Shakdher headed the two-judge Bench.  The verdict came out in the case RIT Foundation v. UOI and other connected matters, in a batch of petitions filed in 2015, challenging the protection provided to marital rape.

What we call as marital rape is the act of sexual intercourse with one’s spouse without her consent.  The lack of consent is the essential element in marital rape which need not be confined to physical violence alone. Marital rape is considered a form of domestic violence and sexual abuse. It falls within the frame of physical and mental cruelty, even though it is not a criminal offence. Marital rape occurs when the husband is under notion that body of his wife owes to him

One judge declared marital rape an offence

In this case, the petitioners challenged the Exception 2 to Section 375 of the Indian Penal Code (IPC). The Exception clause in the section of law states that sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape, even if it is without her consent. The law wholly disregards the woman’s consent for sex within marriage.

In the verdict, one judge – Justice Rajiv Shakdher – struck down the British-era legal provision by declaring it unconstitutional.  But the other judge – Justice C Hari Shankar – refuses to modify Section 375 of the IPC leaving it to the wisdom of the legislature to do so.

Despite the verdict, the law will remain on the statute book till it is resolved by a larger bench of the High Court or the Supreme Court (SC) later.

The protection given to the married man to have unconsented sex from his woman partner in the law as of now is rooted in the belief that consent for sex is implied in marriage and that a wife has no right to retract it later. But whether she is married or not, she has every right to say no to sex to anyone including her husband is the opinion what others hold on in this issue.

What Justice Rajiv Shakdher says is 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, calling for a change in the IPC.

While marital rape leaves physical scars, it inflicts much deeper scars on the psyche of the victim which remain with her years after the offence has occurred.

Justice Shakdher treats the absence of consent as an essential ingredient of rape. He says what is defined as rape in law should be labelled as such, irrespective of whether it occurs within or outside marriage.

He finds that the marital exception provided under Section 375 IPC violates equality before law. It deprives women of the right to trigger a prosecution for non-consensual sex as well. Besides, it also discriminates women based on their marital status and robs them of their sexual autonomy.

Other judge prefers the law maker to make laws

However, Justice C Hari Shankar, the other judge on the bench, rejected the plea to criminalise marital rape. He opines that any change in the law has to be carried out by the legislature since the issue requires consideration of various aspects, including social, cultural and legal.

Justice Hari Shankar de-emphasises the element of consent and lays much importance in preserving the institution of marriage. He holds that any legislation that keeps rape out of a marital relationship is immune to interference.

If marriage is regarded as a partnership between equals, an exception in the law should have had no place. While there are other laws governing civil relationships that legitimise conjugal expectations, the exception cannot be seen as giving a free pass for violence within marriage. Sex without consent is violence.

Justice Shankar emphatically points out that if the legislature, after interaction with stakeholders and after conscious deliberation and debate, formed the opinion that introduction of the concept of rape into the marital sphere might imperil the institution of marriage. The court, at the instance of arguments of counsel, howsoever gifted, would be thoroughly ill-equipped to hold otherwise.

Both judges differ on every aspect

Both the judges differed on key issues such as availability of evidence, the importance of consent, whether the court could adjudicate over the issue of marital rape or only the legislature could decide, whether the State’s concerns about safeguarding the institution of marriage were valid or not, and whether remedies were available to women survivors of spousal violence in other laws such as the law on domestic violence.

Government initially opposed criminalising marital rape

The Government of India has been opposing the removal of the exception in the legal provision of rape. In 2016, it had rejected the concept of marital rape, saying it cannot be applied to the Indian context due to various reasons because of the mindset of society to treat marriage as a sacrament.

However, in the final hearing, the Government did not take a stand on the issue.

Kerala HC declares marital rape as a ground for divorce

Marital rape, though not a crime in India as of now, is a good ground to claim divorce, the High Court of Kerala (HC) says in its judgement in xxx v xxx (names masked) on 30th July 2021 while disposing a set of two appeals against a family court verdict. One of the above appeals was by the husband seeking restitution of conjugal rights and the other was by the wife for divorce. The HC upheld the divorce.

Verma Report wanted to criminalise marital rape

The Verma Committee, set up after the Nirbhaya case in 2013, recommended that in sexual assault including rape, the relationship between the victim and the offender is immaterial but the presence of the consent should get the focus.

The committee recommended that a marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation. The relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity. The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.

The recommendation was not accepted and acted upon. Still marital rape has not been included in our penal statute. The panel which was set up to review the Recommendations of Justice Verma Committee suggested that criminalising marital rape would put the entire family under stress. It may potentially destroy the institution of marriage.  On the other hand, marital rape itself has the potential to destroy the institution of marriage.

Sexual violence should find no place in society

Sexual violence, of whatsoever nature, should have no place in society. The institution of marriage is no exception.

In India, marital rape is not defined in any statute or law.  It is urgent that the legislature should look into this issue of criminalising marital rape.

Judicial verdict is no substitute for duly deliberated and properly enacted law on any core issue. Marital rape is a core issue in the sphere of gender justice.

Related articles

  1. Question of Consent in Sexual Intercourse
  2. Sexual Intercourse without Consent is Rape
  3. Marital Rape is a Ground to claim Divorce