The Decriminalisation of Marital Rape: How India Continues to Refuse Justice to its Married Women

by | Dec 6, 2023

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About Aisha Akram

Aisha Akram is a first-year Law student at Oxford Brookes University. She is interested in International Human Rights and Criminal Law.

India is disappointingly one of the fewest countries in the world today that explicitly decriminalises marital rape, despite being a signatory of the Universal Declaration of Human Rights (UDHR). Exception 2 of section 375 of the Indian Penal Code states that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”. This regressive law is based on the archaic patriarchal notion that a woman irrevocably consents to sexual intercourse once she enters matrimony.

In the 2017 landmark case Independent Thought v Union of India, the Indian Supreme Court increased marital consent from the age of 15 to 18, arguing that excusing the marital rape of minors was contrary to articles 14, 15, and 21 of the Constitution. This progress is still limited because although protection is now granted to all married minor women, rape continues being decriminalised for married women over 18. The National Family Health Survey found that between 2019-2021, 32% of married women experienced physical, sexual or emotional violence by their current husbands (15.6.1), and 82% of married women aged 18-49 who have experienced sexual violence reported their current husbands as the perpetrators (15.3.2). However, it is important to note that, according to the same survey, 9.9 out of 10 cases of sexual assault go unreported in India, which shows how sexual violence may be much more prevalent than survey data appears to show. The Supreme Court, in its decision, did not determine whether it is constitutional to leave married adult women with zero legal protection from their husbands. Why is it that the age or marital status of a woman determines whether she has been raped or not?

Explanation 2 of Article 2 of the Medical Termination of Pregnancy Act (1971) further reiterates just how arbitrary Exception 2 is. The Act permits abortion if the pregnancy has been “caused by rape”, which can cause a “grave injury” to the pregnant woman’s mental health. This law was recently applied in X v The State of Madhya Pradesh. It is irrational that the Indian Parliament openly recognises that marital rape causes incalculable harm in the Medical Termination of Pregnancy Act, but refuses to criminalise it in the Penal Code.

Permitting marital rape is also inconsistent with India’s constitutional values: India passed the Protection of Human Rights Act in 1993 and ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1993. Moreover, India not only signed the Universal Declaration of Human Rights but significantly contributed towards its establishment, as explained by Miloon Kothari in the Journal of the Indian National Commission for Human Rights. Yet, India continues to explicitly violate the basic fundamental rights of its own women.

Rajiv Shakdher’s 2022 judgment in RIT Foundation v The Union of India powerfully highlights how Exception 2 directly contradicts the constitutional human rights of married women. He argues that it is violative of Article 14 of the Constitution (right to equality), because the Exception “deprives nearly one-half the population of equal protection of the laws” (137.1). This links to Article 15 (non-discrimination) which he reads as extending to discrimination within the same sex too, because the Exception “triggers discrimination against women based on their marital status” (166). Furthermore, Shakdher held Exception 2 to be inconsistent with Article 19(1)(a) (freedom of expression) because it prevents a married woman’s right to “assert her sexual agency and autonomy” (166.1). Lastly, he discussed how Article 21 (life and liberty) is violated as married women should have the freedom to choose when to have sexual intercourse, yet this is not possible because the lack of autonomy and sexual agency is embedded in Exception 2 (162).

This case, based on petitions to criminalise marital rape, gave hope that Exception 2 would finally be scrapped. Unfortunately, the Delhi High Court delivered a split verdict and a new hearing was listed to take place in the Supreme Court a year later on the 21st of March 2023. It has been eight months. No hearing has taken place.

It is disappointing that India is so reluctant to abolish Exception 2 when other jurisdictions with similar socio-economic and cultural characteristics have outlawed marital rape (such as Bhutan and Nepal, which issues up to a 5 year prison sentence). India must learn from its neighbours to avoid falling too far behind. As parliament delays the repeal of this discriminatory legislation, thousands of married women will continue to have their human rights stripped away, whilst thousands of men will continue to commit assault with impunity.

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