By Saine Paul*
Despite the attention that it has received in its recognition as a human rights issue, sexual violence and assault in conjugal relationships continues to be among the most privatised and least remedied forms of gendered violations in countries around the globe. At present, sexual assaults committed against a spouse remains entirely legal in thirty-five countries including Sri Lanka, India, Kenya, and Malawi. In the United States, only a minority of the states have abolished the marital law exemption in its entirety while the rest retain it in some form or the other. The World Bank Group Data on protecting women from violence indicates that more than half the world’s countries do not explicitly criminalise marital rape including OECD countries like Japan and the Czech Republic. Clearly, from what is appears, marital rape is not confined to one part of the world but is an issue affecting women around the universe.
Reluctance to criminalise
The disinclination to criminalise marital rape and prosecute the husband can be attributed to different factors like patriarchy, interpretations of religious doctrines, ideas about male and female sexualities, and traditional views of marriage including cultural and societal expectations of subordination of a wife to her husband. It is particularly complicated because of the complex personal nature of marital relationships which makes it difficult for the women to recognise themselves as victims. Moreover, social conditioning has tricked women into believing that post-marriage, there is no such thing as sexual consent and a legally wedded wife has no right to object to her husband’s sexual demands as part of conjugal rights.
The marital law exemption could be traced back to common law theory of implied consent by Sir Mathew Hale (Chief Justice in England). His theory presumed a wife’s absolute, irrevocable consent to any sexual acts during the course of marriage. The theory was premised on how marriage merged the identities of the husband and his wife into one-the husband. This made the whole issue of marital rape absurd since the husband is incapable of raping himself. Furthermore, society viewed a wife as her husband’s property or chattel, thus justifying the rape. Although the courts later limited the theory, their reasoning still relied on this doctrine. Therefore, even though matrimonial consent was no longer absolute, only special marital circumstances revoked a married women’s consent. Like, for example, the court allowed prosecution of a husband where the wife had obtained a legally enforceable separation which would effectively revoke the consent inherent in marriage.
The private/public divide is another argument that has been successfully deployed to defeat and inhibit reform in the sphere of domestic relations. It is based on the premise that laws traditionally did not infringe upon one’s private home, thus, legal interference into an individual’s private sphere became an unlawful intrusion. For many years, the same argument was used to justify the non-interference of the state in domestic violence cases, consequently denying redress to the victim/ survivor.
Lack of social, legal and financial support
Women rights activist and lawyer Flavia Agnes rightly argues that sexual violence within marriage is not just confined to penetrative sex or insertion of objects into body orifices. It includes a range of other activities of sexual nature like threatening to have sex with other women if she denies him sex or forcing to have sex with his boss among others. These sexual acts are committed taking advantage of the extreme vulnerability of these women who are economically dependent on their husband. In our society, where divorces are frowned upon, lack of financial independence makes it harder for a woman to come out of an abusive marriage. In India where a staggering 70% of women feel denying their husbands’ sexual demands is an offence that justifies wife beating, it doesn’t come as a surprise that more than two-thirds of the country’s married women between the ages of 15 and 49 have been raped. If one has to look at the available options that an Indian woman has at her disposal to protect herself in a marriage, one would know that the legislations are either non-existent or obscure and everything depended on the judiciary’s interpretation of provisions.
In India, where the family is the primary form of social organisation, rape in a marriage falls under those instances of rape that goes largely unnoticed. All these above facts also explain the under-reporting of this crime. A deeply conservative view of marriage in our society reinforces a man’s ownership rights over the women, thus denying her any agency over her own body, its sexuality, and its reproductive function.  The view that wives are duty bound to have sex with their husband, is in fact, codified in law. The Hindu Marriage Act, 1955 which allows a person to take his or her spouse to the court for restitution of his conjugal rights is most commonly used to grant divorces on the ground that a wife has denied sex to her husband. 
To add to the already existing vulnerability of women, the Indian Penal Code differentiates between rape within marriage and outside marriage. The assumption that women consent to sexual intercourse with her husband, at his will, at the time of marriage and the consent is irrevocable seems to dominate our criminal jurisprudence . It is beyond a reasonable man’s comprehension as to why under the IPC, an unmarried girl under 18 years of age is not legally empowered to engage in consensual sex whereas a married girl aged 15 and above has no protection from marital rape. 
The Justice Verma Committee report  that was constituted to recommend amendments to the criminal law so as to provide quicker trial and enhanced punishment for criminals accused of committing sexual assault against women, had recommended that the exception for marital rape should be removed. It took a stand on how with regard to an inquiry about whether the complainant consented to a sexual activity, the relationship between the victim/survivor and the accused should not be relevant. Unsurprisingly, the recommendation, of course, was not accepted by the government. Despite law commissions, committee reports, recent amendments to the IPC, the absence of a law decriminalising such an act shows that the government and the society are comfortable to endorse sexual coercion against women as long as it is in a marriage. The only available recourse, for now, is the Domestic Violence Act, 2005 which provides civil remedies for sexual abuse in a domestic relationship of marriage, provided it is life threatening or grievously hurtful.
Article 14 of the Indian constitution guarantees equality before the law and equal protection of laws to its citizen. In essence, it does not mean that individuals will be treated equally under all circumstances. It means equals will not be treated unequally and unequal will not be treated equally. In this context, State of West Bengal v Anwar Ali  laid down that when a law makes classification between two individual groups and treats them unequally, the classification should be based on an intelligible differentia and the differentia must have a rational relation to the object sought to be achieved by the legislation. Now section 375 of the Criminal Law (Amendment) Act, 2013 that makes a classification between marital and non-marital rape on the assumption that a married woman, unlike an unmarried woman has no interest in receiving protection from the state against violent and sexual assault is clearly based on patriarchal notions of inequality.
It is rooted in the presumption that during a marriage the wife enters into a contract where she voluntarily gives away her basic human right of choice and consent. Needless to say, such an assumption is irrational, unjust and apathetic. It is wrong on so many levels and is clearly not a reasonable criteria for classification. Moreover, in the context of Article 21 of the constitution and its expanding jurisprudence, the exemption clause under Section 375 violates a gamut of constitutionally protected rights like the right to good health  and the right to privacy. The marital rape exemption clause arrogates a woman’s power to make decisions with regard to matters closely associated with her body and well-being, thus reducing them to mere animal existence. Consent to sexual intercourse is one of the most intimate and personal choice that an individual reserves for himself/herself and it is absolutely absurd how a relationship between the victim/survivor and the perpetrator could change such a right of bodily self-determination. The provision of marital exemption under Section 375 of IPC is, therefore, bad in law and ultra vires the constitution.
Urgent need to criminalise rape within marriage
The marital rape exemption under the Criminal Law (Amendment) Act, 2013 is not only unconstitutional but also represents the a dereliction of the state’s duty to comply with international obligations to enforce women’s legally protected human rights to equality, liberty and security of the person. Despite the fact that it has been more than 20 years since India’s ratification of the Convention on the Elimination of All Forms of Discrimination against Women, (CEDAW) 1979, the committee’s urge to the Indian government to establish a legal framework by amending the Criminal law (Amendment) Act  and ensure marital rape as an offence has fallen on deaf ears.
Only because rape by a husband does not fit the cultural image of a stranger in a dark alley assaulting and sexually violating a woman, it does not make the act any less severe or gruesome. Just like non-marital rape, spousal rape is a crime of power and domination committed by a man on women and a failure to recognise the same fosters the culture of impunity and serves to maintain women’s inequality, both within marriage and in the broader society. In fact, at times, marital rape could be more stressful as the victims experience additional traumas of betrayal, entrapment, and isolation.
As a country mired in ignorance, old age customs, and beliefs, where women are still viewed as the husband’s property or chattel, it is important to provide legal protection to married women from all kinds of sexual violence within marriage. To dismantle this deeply entrenched system of patriarchy and gender inequality in our society, it is imperative that the government accepts the gravity of the situation and extend its support to the criminalisation of marital rape. It would be hypocritical for the state to resort to the public-private divide contention anymore simply because under section 377 of the IPC the state happily encroaches into the private realm of two individuals consenting to sexual acts. However only declaring an act or conduct as an offence will not fetch us any substantial results unless and until women have a strong support base in the society and the myth of marital rape being inconsequential is broken.
*Law graduate with a specialisation in Constitutional law. Previously with the Commonwealth Human Rights Initiative