How a legal loophole shields marital rape in India

The Chhattisgarh High Court acquitted a man convicted under Sections 304 (culpable homicide), 375 (rape) and 377 (unnatural sexual offence) of the IPC of the death of his wife. The court ruled that non-consensual sex and unnatural acts within marriage do not constitute offences due to the marital rape exception under Section 375. The court extended this exception to Section 377, relying on the SC's decriminalisation of homosexuality.

While the judgment is legally sound, it is disheartening that a woman lost her life after enduring extremely gruesome violations — details of which cannot be reproduced. This resulted in the loss of her honour, dignity and self-esteem, an outcome that sends chills down the spine, leaving a sense that something deeply wrong remains unaddressed.

Marriage has evolved from a contractual bond to a partnership of equals, built on mutual respect and consent. Yet, the marital rape exception contradicts this shift, perpetuating abuse and denying women legal recourse. By presuming perpetual consent, the law disregards modern understandings of dignity, autonomy and human rights. Legalising non-consensual sex within marriage undermines individual freedom and the principle that a wife's bodily autonomy is as vital as that of a husband.

Globally, about one in three women have experienced sexual intimate partner violence or non-partner sexual violence in their lifetime (WHO, 2021). A study has found that sexual violence from intimate partners in women aged 15-49 ranged 6-59 per cent across 10 countries (WHO, 2005).

The National Family Health Surveys (NFHS) and National Crime Records Bureau (NCRB) are primary sources of national-level data on violence against women in India. However, the data includes only reported cases and marital rape is not legally recognised, leading to less than 1 per cent of such cases being reported.

Resolving marital rape in India is complex due to cultural norms surrounding marriage and sexuality. Unlike western societies that emphasise individual autonomy, the Indian society tends to be more conservative, with limited open discussion on sexual matters. Women face societal pressure to conform to traditional roles and any deviation is often seen as a threat to the institution of marriage. The concept of consent within marriage is complicated by cultural and moral implications, where, in more conservative areas, men may feel a strong expectation to fulfill their sexual needs within marriage as sex outside of it is either unavailable or morally rejected. This can blur the line between entitlement and mutual consent.

According to a study by Deosthali et al, which analyses data, a 2010 survey found that one in five men reported forcing their wives into sex. In rural Karnataka, 36 per cent women agreed that husbands might force sex even if their wives refused. A Chennai study found 31 per cent women reported sexual violence by husbands while a survey in UP found 32 per cent husbands admitted to forcing sex.

The NFHS (2019-2020) shows that 29 per cent married women have experienced physical or sexual violence from their husbands. Studies also highlight high rates of sexual violence during pregnancy, with 40 per cent women reporting violence during pregnancy, experiencing sexual violence.

These figures likely under-report the prevalence of marital rape due to stigma. Marital rape leads to severe physical, sexual, reproductive and psychological health issues for women. Research shows that abusive husbands are more likely to engage in extramarital sex, have sexually transmitted infections and expose their spouses to increased health risks. Sexual violence is linked to stillbirths, pelvic inflammatory diseases, limited access to prenatal care and even suicide attempts by women.

These findings raise serious questions about the cost women have to pay to "save" the institution of marriage, often cited as a reason to exempt marital rape.

Sweden criminalised marital rape in 1965, leading to a rise in reported cases and public awareness. A 2013 study by the Swedish National Council for Crime Prevention showed that this legal change, coupled with public education on consent, helped women identify non-consensual sex as rape. It also empowered women to seek help from authorities and support organisations, redefining marriage as a partnership based on equality and mutual respect, which fostered broader social changes.

The criminalisation of marital rape has brought about significant shifts in societal attitudes and increased reporting. In the UK (1991), it empowered women to recognise marital rape as an abuse of power, leading to higher reporting rates (Kelly & Gavey, 2001). In the US (1993), legal reforms raised awareness, reduced tolerance and underscored a woman's right to refuse sex in marriage (Journal of Interpersonal Violence, 2005). In Australia (1981), it resulted in higher reporting and prosecution, with a shift in societal views from seeing forced sex as a private matter to acknowledging it as a violation of personal rights (Australian Institute of Criminology, 2008).

Though initially met with opposition, these legal changes gradually fostered greater recognition of women's rights and helped instill more progressive values in society.

The Justice Verma Committee (2013), the 2014 Special Rapporteur on Violence Against Women, and the Pam Rajput Committee (2015) recommended criminalising marital rape, saying that marriage does not imply consent. While international law recognises marital rape, 36 countries, including India, do not. Its criminalisation would ensure proper law enforcement response, survivor support and alignment with global human rights norms.

Recognising and criminalising marital rape in India faces challenges like cultural resistance, potential misuse, inadequate support systems, judicial burden and marital tensions.

While legal recognition is vital, a holistic approach is equally crucial — encompassing comprehensive sex education, stronger marriage counselling, legal literacy, victim support, gender sensitisation, open discussions on consent, community interventions and reinforced legal protections. A multifaceted strategy combining education, legal reform and societal support is essential for lasting change.

Even the Mahabharata, despite its narratives of wronged women, upholds an undeniable truth in the Anushasana Parva (The Book of Precepts): "The righteousness of men depends upon women." A society that denies women dignity and autonomy imperils its own moral foundation.