Section 375 of the Indian Penal Code exempts Sexual intercourse by a man with his own wife, the wife not being under eighteen years of age, is not rape. In India, it is perfectly legal for a man to rape a woman as long as they are married.
The marital rape exemption originated in common law with Lord Matthew Hale’s declaration that ‘the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.’
Emphasis on women’s chastity increased during the 18th and the 19th centuries. Rape began to be perceived as a threat that woman faced outside the household, which their fathers and husbands had to protect them.
It was under the influence of these laws and attitudes that the IPC was drafted in 1860, section 375 categorically excluded marital rape from the definition of rape. In 2012, in response to a judicial committee’s recommendation to criminalize marital rape, a parliamentary standing committee responded that doing this would put the entire family system under great stress.
In Nimeshbhai Bharatbhai Desai vs. State of Gujarat, the High Court of Gujarat termed Marital Rape as a ‘disgraceful offence’, and elaborately dealt with the issue of Marital Rape stating that: making marital rape illegal or an offence will vanish the destructive attitudes that promote this attitude.
However, since the Indian legal system does not criminalize marital rape, the Court made the husband liable only for outraging the modesty of his wife and for unnatural sex.
In Thought Independent vs. Union of India, the SC criminalized sexual intercourse with a minor wife aged between 15 to 18 years, but has refrained from making any declaration regarding the Marital Rape of a woman above the age of 18 years. It was held that exception 2 to Section 375 of the Indian Penal Code as being violative of articles 14 and 21 and thereby being unconstitutional.
The fight to criminalize marital rape in India is not about changing the law on paper. It is about attacking the age-old mindset that still views a woman as her husband’s property and not as an individual with her own agency.
It’s about fighting against the very notion of marital sanctity that is based on the subjugation of women. Also, it is about challenging this larger rape culture that denies women their basic rights, respect, and bodily autonomy. Medical evidences have shown that rape has serious and long-term consequences for women.
Such heinous sexual actions must be prohibited. The necessity to criminalize marital rape is urgent in order to restore trust and faith in the institution of marriage. Therefore, the exemption of husband from the law of rape could be given up now.
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