Equating non-consensual marital sex with rape in penal code may lead to unravelling of institution of marriage

Before instituting ‘marital rape’ as a punishable offence by amending Indian Penal Code, it is necessary to consider its potential adverse impacts on the institution of marriage

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Nishant Kr. Srivastava

The life of the law has not been logic: it has been experience

-- Oliver Wendell Holmes, Jr.


This famous line from the detailed works of the eminent American academia and Supreme Court Judge has been a guiding force for many jurists as well as academics over a century and till date their essence has remained indisputable.

These words assume significance in the context of the ongoing debate over a plea being heard in Delhi High Court which has sought the striking down of Exception 2 (Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.) to Section 375 (Rape) of the Indian Penal Code, 1860.

We have to appreciate that no civilization gives unlimited and plenary powers to its courts to legislate. Simply because laws originate and follow customs and morality of the society, something which may otherwise be considered legal in a country like UAE won't be considered illegal in India. Or for that matter, marriages solemnized within the degree of relationship permitted by Islam in India are not permissible under Hindu Marriage Act, being ‘sapindas’.

Let us try to understand the present debate with equally convincing lines of argument being taken and advanced by both sides, one which wants to retain the said exception in the statute book and the other which wants it to be struck down being violative of the rights of women, especially keeping in mind the intrinsic and inalienable right to privacy.

It is relevant to point out that the writer is neither for nor against the demands of the advocacy groups for women’s’ right to say no and to get justice for any act that is in violation of their bodily integrity and right over self but only wishes to take up the issue from practical and empirical considerations, which sometimes hyper legal and technical arguments tend to overlook.

The law as it exists

Rape has been defined by the Indian Penal Code, 1860 (IPC) under section 375 and it lists out circumstances falling under any of the following seven descriptions as an instance of offence of rape.

First, against a woman’s will. Secondly, without her consent. Thirdly, with her consent when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly, with her consent when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly, with her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly, with or without her consent when she is under eighteen years of age. Seventhly when she is unable to communicate consent.

It also provides for two exceptions:

Exception-1: A medical procedure or intervention shall not constitute rape.

Exception-2: Sexual intercourse or sexual act by a man with his own wife the wife not being under fifteen years of age is not rape.


The current debate

In layman's term, we can understand the concept of rape as a lack of consent of a woman in the sexual act -- unequivocal voluntary agreement when the women by words, gesture or any form of verbal or non-verbal communication communicates willingness to participate in the specific sexual act -- or an act which falls under any one or more of the seven circumstances.

Consent or lack of it makes an act, whether immoral or shocking to the conscience of the society, an offence. If consent is there, then even a sexual relationship between two consenting adults within the prohibited degrees of relationships may not qualify technically as rape.

The institution of marriage, all over the civilizations of the world, has tried to regulate and/or recognise the permissible relationship/ fixed partner, with whom making physical relationship is neither immoral nor illegal. Almost all civilizations since time immemorial have recognised the institution of marriage between a man and a woman, to permit and allow and recognise the rights of both the partners to freely indulge in sexual activities. Till now there is no dispute on this at all anywhere in the world.

All the debate comes into existence when because of the patriarchal nature of societies across the world, the husband assumes and commands his right to have sex with his wife at will, disregarding the ‘consent’ or sheer ‘absence of consent and communication of the same also’, by the wife.

Again, the societies being patriarchal, the women is considered a weaker being, and the holding or giving consent is considered to be about the wife’s and never that of the husband.

The institution of marriage, religiously, morally and even legally, is accepted as a relationship of equality and to some extent it also gives a kind of sexual freedom to both the parties to a marriage to enter into a physical relationship at will, definitely looking at the desire and the willingness of the other partner.

One also must not forget that most of the arguments being propagated by the advocacy groups praying for the court to strike down the said Exception, do advance the existing position in some nations of the western world, which recognise ‘marital rape’ as an offence akin to that of a plain and simple offence of rape.

Unfortunately, they tend to miss the point that these societies are largely those which do not fall under the strict definition of ‘patriarchal society’ as India is today and that the level of gender sensitization and recognition of equal rights for women in the society is a practical norm and not just a professed ideal as is the case in India.

Some eventualities of ‘marital rape’ provision

At the very onset, we have to acknowledge that without consent, a sexual act with one’s wife is not only traumatic but also violative of some of the most cherished privacy concepts of an individual/wife. Having said so, let us try to visualise the practical and some probable unwarranted outcomes in case the court declares Exception-2 to the section 375 of the IPC as ultra vires and violative of Article 14 & 21 of the Constitution of India (i.e. Equality before law & Protection of life and personal liberty) and strikes down the same.

Immediately, the legal standing of husbands who otherwise have been exercising certain privileges and social sanction, shall be relegated to the status of a complete stranger and here lies the plenary debatable questions which need to be addressed before such striking down of Exception-2 to section 375 IPC by any court of law.

Some of the issues, which are not at all moral, behavioral and societal and which on the contrary are purely legal, which need to be addressed before such a position is held, inter alia, are:

1. Would the single act of ‘rape’ of his legally wedded wife by a husband be sufficient to attract the offence of ‘rape’ or more than one instance of such willful violation of the bodily integrity of the wife by a husband will constitute rape? And if it is more than one instance, then a question arises: what is the necessity to strike down Exception 2 to the section 375 of the IPC? Why can't it be dealt with in another manner, without invoking the provisions of the very heinous offence of ‘rape’?

2. Would it not be a heavy handed and draconian approach to deal with an issue which at the core and fundamentally a societal and perceptual issue? Is it not the issue more of lack of gender sensitization in a society like India, which is deeply patriarchal and where boys are never made to understand the sensitivities of girls particularly when it comes to respect and recognition of bodily autonomy and significance of clear “no” of a girl and the seriousness of “no” even by his wife post marriage to anything, including withholding her consent/ “no” for any sexual activity by her husband?

If it is so, then what is the pressing requirement to immediately and suddenly strike down Exception 2 to the section 375 of the IPC that too without any debate by the society which ultimately has to face the consequences i.e. to say, weakening of the institution of marriage and enhanced real or unreal instances of litigation?

3. Would a complaint by a wife against her husband alleging “rape” would attract the same rigor of law as it is in case of “rape” by a stranger? And if the answer is no, it will be a little less harsh, then the question arises as to why first declare the action by a husband and bracket it in the category of “rape” and then not treating and punishing the accused as a rapist strictly in terms of section 376 of the IPC, which maintains the punishment for rape.

4. In pure and simple cases of rape, other co-accused can be tried and punished for abetment of rape. What if a wife alleges that the mother-in-law, father-in-law, sister-in-law, brother-in-law and other relatives of the husband instigated rape upon her? Will they be jointly tried and punished for abetment?


5. It is a settled position of law that “compromise” is not at all permissible between a prosecutrix and the accused. It is also a settled position that parties to a marriage may condone the aberrations and transgression of the other partner and that removes all the legal culpability. Will the situation be the same in a case where the wife has alleged rape by her husband? And if compromise is allowed during the trial of the case, then why at the first place the rigor of the law of rape is attracted between a husband and a wife?

6. Wouldn’t immediate annulment of marriage the moment an FIR is got registered by the wife against her husband under section 375 be a consequence, as no law or society will desire an outcome where the person who has raped a lady should be made to stay as a husband?

In all the matrimonial offences there is a provision of condonation and patching up, but in offence of rape, condonation and patch up will be absurd; therefore, the very act of getting an FIR registered under the provisions of ‘rape’ will be proof that there is irretrievable breakdown of the marriage as such and this new situation will require that the same (registration of an FIR by the wife against the husband alleging rape) should be made a new and an absolute ground for both the husband and the wife alike to seek divorce from a court of law or to take “Talaq” by any of the parties.

And if there is no amendment to the marriage laws making such an FIR by the wife as a fresh ground to seek divorce, is it not that a lady will have to live as wife of her rapist?

7. Who would be legally and financially liable to take care of the children born out of the wedlock as well as the prosecutrix? The ‘rapist’ father/ husband or the in-laws of the lady (if they are not co-accused of abetment to rape) or the parents of the lady? Since the earning husband will be behind bars and will lose his job -- private or government -- as he is being tried for a heinous offence and offence which falls in the category of moral turpitude.

If the husband is held to be legally liable to take care of the prosecutrix as well as the children born out of the wedlock between the accused and the prosecutrix, then how will it be possible?

8. Would the striking down be prospective or retrospective in nature? Generally speaking, all acts of striking down and or declaring a penal provision are prospective in nature (i.e. to say applicable and enforceable from a future date). So if it is going to be prospective, then why can’t a new provision, after extensive consultation with the stakeholders and the legislatures alike, be awaited? What is this urgency, particularly when the legislature is the right forum and has the plenary powers to legislate on such issues which cannot be separated from the religious and moral considerations and ramifications?

9. Every marriage on the planet goes through times and patches which are generally referred to as “rough” and smooth. What if the wife/ prosecutrix makes an allegation during one of such rough patches in present about a real or unreal transgression by the husband in the past, say 4 or 5 years ago, which now, post the striking down of Exception 2 of the section 375 of the IPC, is tantamount to ‘rape’?

Will there be a limitation (time period within which the case has to be reported) period for such reporting? If yes, would it not amount to an exception to the general rule that in cases of heinous offences, the bar on taking cognizance after the lapse of the period of limitation under section 468 of the Cr.P.C., does not apply?

And again, the question arises, what is the requirement of striking down Exception 2 to section 375 IPC in the first place when the allegation of rape leveled by the wife against her own husband is a matter of trial. Even if it is held to prospective, would it not be required to put a time period/ limitation period for the wife/ prosecutrix to file a case against her husband/accused for having violated her physical integrity against her will?

10. Concept of implied consent is not foreign to criminal laws. For example, the wife taking out money from the wallet of her husband/ or taking out his car is not legally speaking considered theft, since we presume the implied consent of the husband.

In a situation where the husband/ accused initiates a sexual advance and the same is not resisted by the wife/ prosecutirx, in this peculiar situation when the two people are not strangers, can she/prosecutirx be allowed to say that there was no implied consent/ consent at all? Can such activities between a married couple be equated with those of say two complete strangers? If not, then what is the hurry to clamor for the striking down of Exception 2 to section 375 of the IPC and equating such activities between a husband and wife as ‘rape’?

11. Would it not be an open and shut case? The moment a wife alleges ‘rape’ by her husband, definitely it would be inside the house and the legal presumption shall be that of belief and faith on the truth and veracity of the statement of the wife/ prosecutrix? We must not forget that the settled legal position on the evidentiary value of the statement of the prosecutrix and the peculiar nature of the scene of the offence -- here it would be the bedroom of the couple and no other independent witness, no call records, DNA test, medical or no medical examination of the sexual activeness or active or passive participation of the prosecutrix in the sexual activity.

What defence the accused husband would have except one that there was consent of the prosecutrix? Would it that the consent has to be in writing? And what if later on the prosecutrix makes a statement that that written consent was given by her under fear or duress? Would the previous disputes and differences be a defence for the accused? If yes, then is it not irrelevant and extraneous consideration when the sole question is whether there was consent or not on that particular day/ instance?


12. Now, if other things are alright and the accused husband is dutifully executing all his other marital responsibilities towards the wife/ prosecutrix and the family alike, what purpose will be solved by filing an FIR against him, which may have disastrous consequences, for one abrasion, without exploring the possibility of reforming him and saving the marriage as well the future of the innocent children, if any, borne out of the wedlock between the wife/ prosecutrix and the husband/ accused?

13. If the argument is that we are we going to reduce the rigor of section 376 in cases of ‘marital rape’, then is not a logical question to ask as to why such an offence cannot be dealt under any other provision of IPC or under a new law, having sensitivity to such context of the situation and the persons involved in a case of marital rape, both the prosecutrix and the accused?

Why do we need to stigmatize and punish without giving any opportunity for the husband/ accused to mend his ways in future while dealing with his own wife and live a healthy married life and to take care of the family, which is the fundamental constituent unit of a society and a nation as such?

Quite clearly, it is imperative that all these eventualities must be taken into consideration before there is any move to amend the IPC to institute ‘marital rape’ in the statute.

(The writer is a practicing advocate. Views are personal)

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