Marital Rape in India

Introduction

Sexual offences against women have reached serious levels in India. During 2021, data from the National Crime Records Bureau indicated that more than 90 minor girls were raped every day in the country, with Madhya Pradesh being the state in which the highest number of offences were recorded, followed by Maharashtra, Tamil Nadu, Uttar Pradesh, and Karnataka. ¹ The real numbers are likely to be far higher, given that not every offence is brought to the attention of the legal system, given that these numbers excluded adult women, and on a subject that has recently been in the news, given that marital rape is not a criminal offence.

Marital Rape in India

Rape has a long and complex definition in Section 375 of the Indian Penal Code; the essential concept is that it is a forceful, penetrative sexual assault that is committed without the consent of the victim. Marital rape fulfils all these criteria, except that it is committed within a marital relationship. Considering that a marital relationship does not make any criminal act legal, and considering that domestic violence is a punishable crime in India, it is surprising that rape that occurs within a marital relationship has not been criminalized. What might be the reason?

The rights and duties of spouses in a marital relationship are not enshrined in law. Nevertheless, spouses are expected to enjoy conjugal rights, and the withholding or denial of conjugal rights is reasonable grounds for annulment of marriage in cases of nonconsummation and is reasonable ground for divorce if it occurs in later years. In this context, marital rape commonly occurs in two circumstances: one is when conjugal rights are denied for whatever reason, and the other is when the partner intends the action to be an assault.

The true magnitude of marital rape in India is presently unknown, and part of the reason lies in the lack of a clearly applied definition of what constitutes marital rape. As an example of what the magnitude of the problem may be, nearly 3 decades ago, coercive sexual intercourse was reported by about 30% of husbands in the Male Reproductive Health Survey, Uttar Pradesh, India, 1995. ² Very recently, in a study conducted in Mumbai, Deosthali et al ³ found that 828 (46.4%) of 1,783 women confided to counsellors that they had suffered marital rape while requesting support for domestic violence; these data were drawn from counselling records. In contrast, only 18 (1.1%) of 1,664 women actually reported marital rape to the hospital in medicolegal forms.

Towards a Definition of Marital Rape

Sexual intercourse within marriage involves two individuals, husband and wife, and can be mechanically conducted even if one partner, commonly the wife, is not in an ideal frame of mind for the act. Readiness and willingness for the act, within marriage, is not a categorical variable; that is, one defined as being absolutely ready or yes vs. being absolutely unwilling or no. Rather, it lies along a continuum with readiness and willingness at one end, moving to varying grades of ‘not really in the right mood, but okay if you insist’, to varying grades of ‘please, not now, I really DON’T want it’, but with yielding to verbal or physical coercion, to categorical refusal with participation obtained by the application of physical force.

In such a continuum, the last-mentioned situation is compatible with a definition of marital rape, but it must be recognized that, to a woman, verbal and gentler forms of physical coercion, ending in sexual intercourse with the woman silently enduring the act, may also be experienced and reported as rape to marriage counsellors, divorce lawyers, and clinical researchers.

Why is definition an important issue? Because, in most countries, “No Means No” is sufficient to define any subsequent sexual advance as a criminal act and penetrative sex as rape. However, in countries in which marital rape is not criminalized, coercion without force or violence would also not be considered criminal if occurring within marriage. Should marital rape be criminalized, a threshold needs to be identified beyond which coercion becomes rape. Definition is also important because, when collecting statistics on marital rape and when criminalizing the act is under consideration, the definition must be clear. In India, given that rape is deemed to have occurred if it is a forceful, penetrative sexual assault that is committed without the consent of the partner, marital rape would be such an act committed within the boundaries of a marital relationship.

Marital Rape and Indian Law

In most countries, marital rape is considered a crime and not just domestic violence or cruelty. India is among about three dozen countries in which marital rape is not an offence; sexual intercourse by a man with his own wife is a clearly stated exception to the definition of rape in the Indian Penal Code.^3,4 This exception was legally challenged in the Delhi High Court in the form of public interest litigations filed in 2015 and 2017, but the verdict was split: one Justice favored striking down the exception because consensual sex is fundamental to a healthy marriage, and the other did not because forced sex with a husband does not provoke the same sense of violation as forced sex with a stranger. ⁴ An appeal was filed with the Supreme Court, which has now sought a response from the Central Government. ⁵

Why a Decision may not be Straightforward?

As already stated, the rights and duties of spouses in a marital relationship are not enshrined in law. Nevertheless, spouses are expected to share responsibilities and fulfil roles within marriage, and when responsibilities are neglected, they are recognized as grounds for application for divorce. Sexual intercourse is perhaps the only unwritten but conventional obligation associated with marriage that requires simultaneous participation of the spouses, and refusal by one partner suffices for the act to become impossible for the other.

There are some fundamental biological drives in nature, and the drive for food and water are examples. The drive for sex is also a fundamental drive, imprinted because a species that does not reproduce will not survive in nature. As with hunger and thirst, the need for sex amplifies as the period of deprivation extends, and so denial of sex by one partner in a marriage becomes a denial of a fundamental need that, in most countries, cannot be legally satisfied outside the marital relationship. So, withholding of sexual privileges can become a tool for pique, punishment, coercion, or blackmail by one spouse against the other.

Finally, there is the fear that just as false cases of dowry harassment are sometimes filed, criminalizing marital rape will allow additional opportunities for a law to be misused to settle scores related to marital or in-law disagreements.

Endnotes

What is our stance? We believe that rape, defined as forceful, penetrative sexual assault that is committed without the consent of the victim and especially when accompanied by violence, should be punishable regardless of the context in which it occurs. How exactly marital rape must be defined, what extenuating circumstances might be, what must be the nature of the evidence that precludes misuse of the law, and what must be the nature of the punishment are matters for the judiciary and executive to decide. Perhaps, at the least, if proven, it should be recognized as cruelty and as grounds for divorce.

On a final note, we have confined ourselves to addressing forceful, nonconsensual intercourse that occurs within the context of a marital relationship. However, live-in relationships are now increasingly being recognized in Indian courts of law as relationships in which partners have rights. However, because live-in relationships do not have legal status, no privileges, not even tacit privileges, are recognized. This means that if forceful, nonconsensual intercourse occurs within a live-in relationship, it cannot be allowed the same exemption as marital rape. The same argument applies for relationships that are not live-in.