Marital rape refers to the abhorrent act of non-consensual sexual intercourse or penetration carried out by one spouse against the other. The legal construct of rape hinges crucially on the absence of consent, thereby placing the primary burden of demonstrating the absence of consent upon the victim. Legal statutes recognize minors as inherently incapable of providing consent in certain circumstances, while in specific scenarios, consent may be implied. Notably, only fifty-two jurisdictions globally have enacted legislation formally acknowledging marital rape as a punishable offense. Nonetheless, in many legal systems, including that of India, marital rape remains conspicuously unaddressed both within the legal framework and societal discourse. Additionally, even in jurisdictions where rape offenses are codified with punitive measures, exceptions persist, particularly in cases involving spousal relations, commonly encapsulated within the 'marital rape exception clause'.

A shift from the established discourse emerged in 2012, marked by the formation of a committee chaired by J.S. Verma, a retired justice of the Supreme Court, advocating for the criminalization of marital rape. The Verma committee posited that existing immunity stemmed from an antiquated perspective portraying married women as chattel of their husbands, presumptively consenting to their sexual desires. Consequently, the committee proposed the removal of the exception clause and asserted that marital status should not serve as a permissible defense in determining the presence of consent.

The Criminal Law (Amendment) Bill of 2012, developed in response to the Verma Commission report, did not include provisions to criminalize marital rape. The Parliamentary Standing Committee on Home Affairs, responsible for scrutinizing the bill, rejected proposals to criminalize marital rape. It justified its decision by expressing concerns about potential strain on the family structure and the risk of exacerbating injustices. Additionally, the Committee highlighted the availability of sufficient legal remedies, such as Section 498A of the Indian Penal Code, the Protection of Women from Domestic Violence Act of 2005 (PWDVA, 2005), and various other personal laws governing marriage and divorce.

In 2015, the Ministry of Home Affairs reiterated the argument against criminalizing marital rape, stating that the concept, as understood internationally, was not suitable for application in the Indian context. The Ministry cited societal perceptions regarding marriage as a sacred institution as one reason for this stance. Despite a private bill introduced in December 2015, discussions on the topic revealed that the Law Commission was reviewing the matter, and any decisions would await its report. Notably, the Home Minister referenced the existing provision of 'cruelty' under the Indian Penal Code as a remedy for such instances. In 2016, when questioned again about the potential criminalization of marital rape, the Home Minister indicated that the matter remained under the Law Commission's consideration, emphasizing that no decision had been made given the previous stance of the Parliamentary Standing Committee.

While the judiciary has shown reluctance to extend constitutional rights into the realm of marital rape, there exists a selective intervention of the state. For example, consider court-ordered restitution of conjugal rights, as outlined in Section 9 of the Hindu Marriage Act, 1956. This provision stipulates that if a husband and wife are living separately "without reasonable excuse," the court may decree restitution. However, this section tends to disadvantage women, who are frequently compelled to resume conjugal relations with their husbands.

An important legal precedent was established in the case of Indian Young Lawyers Association v. State of Kerala (2018), where the Supreme Court, in a majority decision of 4:1, ruled that the prohibition of women aged 10 to 50 from entering the Sabarimala temple was unconstitutional. Justice Chandrachud's concurring opinion, in particular, offers valuable insights aimed at reconciling constitutional principles with societal norms.

THE NEED TO MOVE AWAY FROM ‘PRIVACY’ TO ‘INDIVIDUAL AUTONOMY’

Therefore, it is proposed that reliance on the privacy argument, even in support of a woman’s right to sexual and personal autonomy, must be shifted away from. The conceptualization of the private sphere can be undertaken in a progressive manner, emphasizing women’s rights, as demonstrated in the case of K.S. Puttaswamy v. Union of India. In Sareetha, the Court deemed the Restitution of Conjugal Rights (RCR) unconstitutional, emphasizing its inconsistency with ‘marital privacy’. However, the essence of the judgment primarily addresses the violation of a woman's individual autonomy when compelled to remain with her husband. Ideally, the Court in Sareetha should have invalidated §9 of the Hindu Marriage Act solely by invoking the principles of individual autonomy and liberty, rather than delving into the ‘marital sphere’ aspect. However, by employing the term ‘marital privacy’, it inadvertently provided an opening for interpretations divergent from the intended progressive stance, as seen in the case of Harvender Kaur, where it was argued that individual autonomy is not applicable within the marital sphere. This underscores the inconsistencies in the understanding of the term ‘privacy’ and underscores the risks associated with relying solely on the privacy sphere.

The argument delineates the absence of a valid legal basis for disparate treatment between married and unmarried women concerning the crime of rape. Article 14 of the Indian Constitution mandates that legislative enactments adhere to principles of rationality and non-arbitrariness. In the matter of Independent Thought v. Union of India, a segment of the exception clause within Section 375 of the Indian Penal Code was nullified. This clause, as per the provisions of the Protection of Children from Sexual Offences Act, 2012, permitted sexual intercourse with a minor girl aged 15 to 18 if she was married. The judiciary found this differential treatment, predicated on marital status, to be in violation of constitutional principles.

Under this standard, we have established that there is no presumption of consent to sexual activities within marriage. Moreover, to refrain from criminalizing marital rape solely to protect the institution of marriage, especially when constitutional rights are at stake and other forms of violence have been criminalized, would be arbitrary. Thus, this fails the test of Article 14, and the exception clause is therefore unconstitutional.

In considering the demand for the criminalization of marital rape, it is argued that such an imperative is rooted in constitutional principles rather than cultural norms. An analogy is drawn to the legal discourse surrounding freedom of speech and obscenity laws in India. Article 19(2) of the Constitution includes "morality" as a permissible ground for restricting freedom of speech, a concept interpreted by the Supreme Court to encompass "public morality." However, the interpretation of "morality" as perceived by the public may diverge from constitutional morality, which prioritizes principles such as gender equality and bodily autonomy. Relying on public morality to adjudicate constitutional morality is viewed as precarious, as it could potentially sanction laws that uphold societal practices conflicting with constitutional values. For example, if public morality aligns with the caste system, there is a risk that laws perpetuating caste-based discrimination could be considered constitutional. Public morality is inherently influenced by cultural beliefs and practices.

CONCLUSION.

The discourse on marital rape holds significant importance in the pursuit of substantive equality for married women, who often find themselves confined within the private sphere in both public discourse and legal frameworks. It is imperative to acknowledge that the absence of criminalization represents a significant gap in current criminal law, undermining the constitutional provisions aimed at ensuring women's equality and autonomy. As consistently demonstrated, there have been substantial political, legal, and cultural contentions against criminalization.

We have meticulously scrutinized the validity of these arguments, which revolve around concepts of family, marriage, and the societal role of women. It has been demonstrated that all arguments against criminalization lack legal foundation. We contend that the current exemption clause in Section 375 of the Indian Penal Code is unconstitutional, as it fails to meet the equality standard outlined in Article 14. Moreover, we have illustrated the absence of effective legal alternatives and emphasized that our focus should be on criminalization rather than exploring alternatives. Additionally, we have highlighted that cultural resistance to marital rape should not serve as a justification for its non-criminalization.

Considering the aforementioned, we propose a legal framework for the criminalization of marital rape. Firstly, the elimination of the exception clause is suggested. Secondly, we advocate for explicitly stating that the marital relationship between the accused and the woman shall not serve as a defense. Thirdly, uniformity in sentencing policies is recommended. Lastly, amendments to the Evidence Act to address the complexities involved in prosecuting cases of marital rape are proposed.