Constitutionality of Marital Rape in India: From Law Commission Reports to Substantive Testing

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In the process of the Delhi High Court on 10 January, 2022 continuing the hearing of petititons on Marital Rape, there is unclarity on its current legal stand. The main contentions raised are on the exemption – II of S.375 of the Indian Penal Code (IPC), and the state failure to take the necessary steps to criminalize the offense of Marital Rape in India. Initially, there have been many attempts to remove the exceptions which have not been achieved yet. It is a long-awaited reform since 1991, though there have been mixed reviews about it in the past as well in the present.

According to the first submission by the counsel Ms. Karuna Nundy, for the petitioners, All India Democratic Women’s Association and RIT Foundation. Precisely, there were three limbs of submission:

  1. There is no presumption of the constitutionality of pre-constitutional provisions.
  2. Striking down a Marital Rape Exemption (‘MRE’), will not create a new offense.
  3. While the ‘MRE’ and impugned provisions violated most of the Fundamental Rights including Art. 14, 15(1), 19(1)(a), and 21, they failed to pass the Constitutional muster. Moreover, it is the Art. 13, giving the explicit mandate to the court to set aside the same without awaiting legislative action.  

Contrarily, the respondents, that is the Union government on 13 January 2022 stated that they are already contemplating a consultative approach from several stakeholders including the Chief Minister of all states, Chief Justice of India, and High Court Chief Justices on the issue. Additionally, the Solicitor General of India Tushar Mehta affirmed that the Centre is considering “constructive approach” regarding the amendment to the criminal laws.

However, this is in contrast to the earlier stance in 2017 by the Centre where they opposed criminalizing marital rape, citing the rationale that removing it would destabilize the institution of marriage, and the provision would be used to harass the husbands.

Meanwhile, at the present, the Delhi government has told the court that remedies for marital rape already exist in the IPC such as grievous hurt and cruelty. Striking down this exception would result in creating a new offense, that is something outside the jurisdiction of the courts.

Nonetheless, Two Amicus Curiae – advisors for this case to the court, supported the criminalization of marital rape offense and on the exception to be struck down. However, there is still opposition from some “men groups” such as NGO Men Welfare Trust (MWT), arguing that married women have been given sufficient protection by the law. 

The Law Commission Reports

In the past, there were two Law Commission Reports on criminalizing marital rape but the recommendations were bound to offense because of its insufficiency and contradictions.

The first report to deal with the issue was published in 1971. According to the 42nd Law Commission Recommendation, it noted that the exception clause of S.375 would not apply where the husband and wife were judicially separated. Although this was a praised suggestion, the reasoning given for it was unclear. It stated that “in such a case the marriage technically subsists, and if the husband has sexual intercourse with her against her will or her consent, he cannot be charged with the offense of the rape. This does not appear to be right.” As it implies that consent is presumed in a situation where husband and wife live together and cannot be implied when they do not live together.

The second suggestion in the report was regarding the non-consensual sexual intercourse between wife and husband, where women’s age is between twelve and fifteen. Moreover, it stated that for such an offense, the punishment should be kept in the “different section and preferably” not be termed as rape. One of the major reasons is the retrospective effect of the amendments in the IPC for rape would impact the marital rape, if not separated. Though the defining part of the second suggestion to classify it as rape, nevertheless, the conclusion was at the best to lower the degree of sexual misdemeanour.

In summary, this report highlighted the “presumption of consent that operates when a husband and wife live together and the differentiation between marital rape and other rape, where the former is viewed as less serious.” Further, this report does not have a comment on the exception of the S.375 IPC to retain or delete it.

In 2002, the 172nd Law Commission Report had an interesting contention. During the consultation rounds, arguments were supported regarding the validity of the exception clause per se. In the same, it was interestingly argued by ‘Sakshi’ (a women’s rights organisation), that there are several instances where violence by a husband towards wife was criminalized, hence there is no reason to defend the marital rape from the operation of law. The Law Commission rejected this argument and was unable to find sufficient reason to recommend that “the deletion may amount to excessive interference with the marital relationship.”

Sustaining Argument

Subsequently in 2013 the vital development was held through amendment through recommendations by the JS Verma (Retd.) Committee (2013). Since the committee was formed with an objective to make criminal law more stringent with cases of sexual assault against women. In this recommendation precisely, two-fold suggestions were pointed out. Similar to the previous Law Commission Reports that the exception clause must be deleted. Secondly, the law must specify that a marital relationship or any other relationship is not a valid shield for the accused, or sensible while determining whether consent existed or not and that it was not be considered a reducing factor for the purpose of sentencing. Nonetheless in the modern concept of marriages between equal, such exceptions cannot take a stand. 

Criminal Law (Amendment Act), 2013

In light of the above advanced argument and reports, the Criminal Law Amendment Bill, 2012 (‘Amendment Bill 2012’) was drafted. In this bill, the word ‘rape’ was been replaced with ‘sexual assault.’ To expand its scope but this failed to include any provision to criminalize the marital rape. This had been widely criticized by several human rights activists and women’s rights organisation for not including the Justice Verma’s Committee recommendations on marital rape. The Government of India defended by stating that it has not rejected the suggestions completely, but the changes can be brought subsequently with proper consideration.

Further, the Parliamentary Standing Committee on its 167th report (‘Standing Committee Report’) reviewed this amendment bill and also organized the public consultations. It was similarly suggested as above that S.375 must be appropriately amended to delete exception – II.

Anyway these recommendations were rejected by the Standing Committee for the two reasons. First, “the entire family system will be under great stress and the committee may perhaps be doing more injustice.” Second, as there is already an existing remedy available in IPC under the concept of cruelty in S.498A and since the family issues as well could deal with such issues.

Nevertheless, I believe that the extent of the cruelty cannot be identified merely through legislation. The reality cannot sometimes be expressed by either of them making it quite difficult to judge. But, as in the several instances it has been observed that the falsity of cases filed for marital rape is dismal, the truth is bent in the favour of women. However, each circumstance must be impartially investigated at a time without holding the preconceived notions for either of them.  

In summary, the past and present stand with the Law Commission Reports, Recommendations and Committees on observing both the sides, it is yet being concluded as a mixed form of opinion for criminalizing it or not. However, in recent years, the Supreme Court has recognized the cruciality to uphold the personal privacy and bodily autonomy of a married women in sexual relations. For instance, in 2017 the right to privacy judgment, the court asserted that to participate in sexual activity is a part of the right to personal liberty under Article 21 of the Constitution. In addition to this, in 2018, while decriminalizing adultery the court affirmed that even marital relations are “not exempted from constitutional scrutiny.”

Though it is understandable that criminalizing the marital rape can be detrimental towards the notions of family proximity and sanctity of marriage. Notwithstanding all this the arguments against criminalizing the marital rape do not have any legal standing. As it is rightly argued that exemption – II of S.375 is unconstitutional breaching several Fundamental Rights.

Besides, there is ineffectiveness of existing laws and rather they are the secondary or alternatives. The substantive justice and equality to be done here is to not take alternative measures but to criminalize it. On the culture and ethical values being hampered which is antithesis to the risen various instances of marital rape, hence there has to be adjustment with help of particular frameworks or models in consonance to criminalizing it. For instance, one of them I generated that can be amendments in the procedural laws and the Evidence Act to make sure that it takes into account the fair due procedure as well on complexities of prosecution in marital rape cases in India.


Pragyanshu Gautam

Pragyanshu is a second-year undergraduate law student at Hidayatullah National Law University, Raipur. He is a former Judicial Intern for The Hon’ble Chief Justice of Allahabad High Court, Prayagraj.

4 responses to “Constitutionality of Marital Rape in India: From Law Commission Reports to Substantive Testing”

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