Husband owns wife’s body after marriage: What is holding back India to criminalise this misogyny?

Decades have passed, several amendments have been introduced, yet no specific provision to punish a man indulging in sexual acts with his wife considering as his right and disrespecting the significance of the word “Consent”. Why?

Delhi High Court will be soon pronouncing its ruling in respect to a batch of petitions filed asking for striking down marital rape to be an exception under the Penal Code, 1860.

How can killing your own wife be criminal but indulging in sexual activity without her consent (forcibly) be not a criminal activity?

---

Husband not guilty to rape his own wife

---

In 2018, Gujarat High Court’s Single Judge Bench in Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2018 SCC OnLine Guj 732 while noting the acts of a husband to constitute as rape under Section 375 stated that lawful marriage between the accused and the first informant that saves the situation for the husband. 

“…the complainant is a legally wedded wife of the accused, the sexual intercourse with her or any sexual acts by accused would not constitute an offence of rape even if it was by force, violence or against her wishes.”

Though the Court made it clear that in case of separation if a husband makes sexual intercourse with the wife, the said act would be an offence under Section 376-B.

“By marriage a woman gives irrevocable consent for her husband to have sex with her any time he demands it.”

“If the husband lays an assault on her wife, then that would constitute an offence under the IPC. If the very same husband lays an assault and forces his wife to have sexual intercourse, he would be liable for assault but not for an offence of rape only because there is a valid marriage between the two.”

Gujarat High Court observed that,

Husbands need to be reminded that marriage is not a license to forcibly rape their wives. A husband does not own his wife’s body by reason of marriage.

In 2021, in a recent decision of Chhattisgarh High Court, it was held that sexual intercourse or sexual act by a man with his own wife, the wife not being under eighteen years of age, is not rape.” [Dilip Pandey v. State of Chhattisgarh, CR.R. No. 177 of 2021]

Whether a wife can claim divorce based on marital rape?

---

Kerala High Court’s Division Bench comprising of A. Muhamed Mustaque and Kauser Edappagath, JJ., remarked that merely for the reason that the law does not recognise marital rape under penal law, it does not inhibit the court from recognizing the same as a form of cruelty to grant divorce.

Noting that the wife was subjected to the worst form of sexual perversion and unnatural sex against her will held that, treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape.

High Court remarked that “A spouse has a choice not to suffer and law cannot compel a spouse to suffer against his or her wish by denial of divorce by the court. [X v. X, Mat. Appeal No. 151 of 2015]

Women’s right to refuse to indulge in sexual activity

---

 Supreme Court stressed upon woman’s right to refuse in the case of Suchita Srivastava v. Chandigarh Admn., (2009) 9 SCC 1, wherein the Court expressed that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods.

Hear the voices of Silence | A man is a man; an act is an act; rape is a rape, be it performed by a man the “husband” on the woman “wife”.

---

In a recent decision delivered on 23-3-2022, the Karnataka High Court in Hrishikesh Sahoo v. State of Karnataka, WP 48367 of 2018 while throwing light on equality amongst genders, laid down that,

Woman and man being equal under the Constitution cannot be made unequal by Exception-2 to Section 375 of the IPC. It is for the law makers to ponder over existence of such inequalities in law. For ages man donning the robes of a husband has used the wife as his chattel; […] his crude behavior notwithstanding his existence because of a woman.

A brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape.

Court remarked that, A man sexually assaulting or raping a woman is amenable to punishment under Section 376 of IPC. The contention of the senior counsel that if the man is the husband, performing the very same acts as that of another man, he is exempted. In my considered view, such an argument cannot be countenanced.

The trajectory of unheard voices is unending, yet the hope for a ray of light for the unheard is still alive.