Sacrilege in Marriage: Women’s Right to Say “No” to Husband with Respect to Sexual Intercourse

Laksh Verma

BA LLB, Batch: 2019-2024

The theme of this blog revolves around three things. Firstly, women’s right to say no to sexual intercourse with her husband; secondly, examining the same under the maxim “Ubi jus, ibi remedium” and thirdly, understanding how this is against the fundamental principles of law.

Marriage is the foundation of family; it is probably the most sacramental institution that man has made. India especially is a country where much importance is given to traditions, customs and most importantly, religion. The object of marriage might not have changed since the inception of this practice, but society has, and with an evolving society, even such institutes need to be dynamic and adapt to the modern expectations of the society. In ancient times women were considered the property of their husbands; this notion has shaped the laws that we have today, because of which there are a few laws that leave the wives remediless in cases of marital offenses.[i] The essential question is, does entering into a marriage take away the women’s right to consent for sexual intercourse? The answer is not tricky but straightforward because we have to examine two things to understand this in totality; firstly, can a woman say no to sexual intercourse? And secondly, if her husband still violates her right, what are the remedies she can take. 

Firstly, the author puts wives have the right to say no, this is by relying on the authority of observations of Delhi High Court where Chief Justice Gita Mittal observed that “Marriage does not mean that the woman is all time ready, willing and consenting the man will have to prove that she was a consenting party” hence, it should be clear that women have the right to say no to sexual intercourse. Sexual intercourse against consent is called rape under section 375 of the Indian Penal Code. It is one of the most brutal offences against humanity. What is problematic is that the offenders in a marital relationship are given special protection under Section 375, exception 2. Gujarat High Court has observed such offenders’ “destructive attitude”; Justice J.B. Pardiwala further recognised the need to criminalise rape within marriage. Before coming to the remedies available to her, it is essential to understand the jurisprudential aspect that comes into play here. “Ubi jus, ibi remedium” meaning “where there is a right, there is a remedy”, and the Supreme court has also observed the same as Justice Doraiswamy Raju in the case of Sardar Amarjit Singh Kalra V. Pramod Gupta[ii] observed, “the court must always aim to preserve and protect the rights of parties and extend help to enforce them rather than deny relief and thereby render the rights themselves otiose recognising the maxim”. Exception 2 under section 375 reads, “Sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape”. This exception leaves no recourse to a married woman raped by her husband. The author opines that this is frivolous because there is a right to say no to sexual intercourse. Still, there is no remedy, and this is a violation of fundamental principles of law as laid down by Justice Doraiswamy. Apart from that, the author strongly believes that this is discriminatory and a violation of equal protection under the law because we are creating two classes of women and discriminating one of them based on her marital status by leaving her helpless against a “dehumanising act,” as observed in Karnataka V. Krishnappa[iii]. The Rule of law should prevail, and no person with guilty intention should be exempted. 

While our ancestors never considered criminalising or even acknowledging rape within marriage, the author believes the time has come to do so.[iv] Women have only been granted relief from this act by categorising it as against the natural order or injury, but this is insufficient. Rape is not necessarily unnatural, and neither is it always accompanied by force or violence. Other provisions such as outraging modesty carry a much lesser punishment, which is not fair; according to a survey performed in India by UNPFA Population Control, 10% of women aged 15 to 49 had experienced sexual violence at their hand’s husband throughout their marriage. This is a gross violation of human rights, marriage is the most sacred institute to man, and it should never become a licence to commit rape[v]; women can say no, but what good does that do when there is no remedy? It might be challenging to criminalise it because people will be reluctant to accept it, but justice should always prevail over the interests of the majority. Are we progressing when an institution created by humans denies humans the remedy? Concluding, it is crucial to look beyond the sacramental values of marriage, penalising the non-consensual sexual intercourse rather should be seen as a further positive change in marriage, instead of seeing this as a way to violate the holy values of marriage by punishing the husbands for non-consensual sexual intercourse. We should see this as a step towards safety in protecting women in an abusive marital relationship. We should start viewing marital rapes as sacrilege to our institution of marriage and punish the perpetrators in the manner we would punish any other rapist; sacramental values of marriage need to be protected and progressed because human ties are the basis of society.

Reference

  [i] To Have and Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99(6) Harv. L. Rev. 1255, 1256 (1986).

[ii] Sardar Amarjit Singh Kalra v. Pramod Gupta, 2002 SCC OnLine SC 1225.

[iii] Karnataka V. Krishnappa, 2000 SCC OnLine SC 629.

[iv] RAO, NITYA. “Rights, Recognition and Rape.” Economic and Political Weekly 48, no. 7 (2013): 18–20. 

[v] Jill Elain Hasday, Consent and Contest: A Legal History of Marital Rape, 88 Calif. L. Rev. 1373 (2000).