Legal Article

Marital Rape

By- B.Jayprakash

Abstract: -

In India section 375 of IPC defines Rape as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case, if she is under 18 years of age”. However, there is an exception to this law which says that sexual intercourse with his own wife, the wife not being under 15 years of age is not punishable in India. This article discusses about provisions of marital rape, current situation, judiciary perspective, Pros and Cons and authors opinion on marital rape. The readers will get clear idea about what marital rape is all about.

Introduction: -

The word rape has been derived from the term ‘rapio’ which means to seize. Rape is therefore, forcible seizure, or ravishment of a woman without her consent by method of force, fear or fraud. It is the ultimate violation of the self of a woman. Marital rape is state where there is sexual intercourse between husband and wife without the wife’s consent. However, in many other countries marital rape is being criminalized by their respective penal laws. But in India marital rape is not considered as crime.

Provisions relating to Marital Rape: -

Section 375 of IPC defines rape where it mentions 7 notions of consent, if vitiated, then it would constitute the offence of rape by man. However, exception 2 of section 375 speaks about marital rape which says non-consensual sex between husband and wife (Not being below 15 years). But in the case of Independent Thought v UOI, the supreme court increase the age from 15 years to 18 years.According to Independent Thought v. UOI, where the supreme court ruled that non-consensual sex between husband and wife, the wife not being under 18 years of age is not a rape. Therefore, the court in these days set this case as precedent.

Current scenario of marital rape: -

The government has taken a reactionary stand on the topic of marital rape by saying that laws against marital rape would ‘destabilize the institution of marriage’ and would become a tool to “harass spouse” in RIT foundation v. UOI which is pending before the Delhi high court. The Government has also justified saying that criminalizing this crime (Marital rape) would affect the very institution of marriage and family.

Marital rape in India: -

Marital rape is not a crime in India. Section 375 [ii], the provision of rape in the IPC, states as its separate clause – “Sexual intercourse between a man and his wife, if the wife is not under 15 years of age, is not rape”. According to section 376 of the IPC, which provides for the punishment of rape, a rapist should be sentenced to imprisonment in any form for a period not less than 7 years but which may extend to life imprisonment or up to 10 years further and shall also pay a fine unless the raped woman is his wife, and not under 18 years of age, in which case, he shall be punished with imprisonment for any term which may exceed 2 years with a fine or both.

Thus, marital rape is considered to be rape only if the wife is under 18 years of age. No legal protection is granted to a wife after 18 years. According to the IPC, cases in which a husband can be prosecuted for a crime. marital rape is as follows:

If the wife is between the ages of 12 - 18, the offense can be punishable by up to 2 years in prison or a fine, or both;

If the wife is under 18 years of age, a sentence of imprisonment of any definition for a period not less than 7 years but which may extend the life span of up to 10 years and shall pay a fine.

Rape of a legally divorced wife, a sentence punishable by up to 2 years in prison and a fine;

Rape of a woman over 18 years old is not punishable by death.

Judiciary perspective on marital rape: -

Legislatures have been claiming that marital rape is now under the IPC which means that a married woman in the event of a rape without consent can apply Article 498A of the IPC (cruelty) or an act of domestic violence but not section 375, but the Judiciary took a different decision. Let's take a look at some of the latest events:

The Delhi High Court in RIT Foundation v. UOI and other connected matters (2022) had challenged the legal validity of the ‘protection of marital rape’ provided under the exception of section 2 of section 375 of the IPC. The case was dominated by important issues related to consent, the level of state control over women’s sexual autonomy, and the redress of historical discrimination in law.The court here basically reckoned on how the dignity of married and unmarried women can be differentiated and asserted that irrespective of marital status, every woman has the right to say ‘no’ to a non-consensual sexual act.The rationale and the thrust are that a relationship cannot be put on a different footing as a woman remains a woman whether married or unmarried.

The Court stated that ‘just because she is married so she can take recourse of other civil and criminal laws and not under section 375 (rape) of the IPC if she is a victim of forcible sexual intercourse by her husband, is not alright’.

A bench of Justices Rajiv Shakdher and C. Hari Shankar said the exception from prosecution given to husbands under section 375 of the IPC has created a firewall and the court has to see if the firewall is violative of Articles 14 & 21 of the Constitution.The High Court of Chhattisgarh ruled that "sex or sexual acts committed by a man and his wife .. would not be a crime rape,whether compulsory or contrary to his will", and acquitted the man of the charge against him for his wife.The husband and his family members moved a revision plea challenging the charges filed against him by his wife, Justice N.K. Chandravanshi referred to Exception 2 of Section 375 of the IPC.The case ruled “in this case, the complainant is legally wedded wife…therefore, sexual intercourse or any sexual act with her by… the husband would constitute an offence of rape, even if it was by force or against her wish.”However, the judge upheld other charges filed against the accused, namely Sections 498A (cruelty) against the husband and his family members, and Section 377 (unnatural offences).

Pros and cons of marital rape: -

Some arguments favoring criminalization of marital rape: -

It is argued that issues related to marital rape are included in the "Protection of Women from Domestic Violence Act 2005". But the term ‘Rape’ is not explicitly in the act.

The courts have taken domestic violence act as a civil law and therefore the defendant can escape without being imprisonment.

The Civil law by definition is ineffective and cannot properly deal with serious crimes such as rape, murder etc.

Every woman must have sexual intercourse after marriage and her body and the exception of section 2 of section 375 violates Sections 14 and 21 of the Constitution.

Cases of marital rape are also disputed under the cover of Section 498A of the IPC (cruelty), yet it does not explicitly speak of rape.

Some arguments against criminalization of marital rape: -

It is argued that marital issues are included in the “Protection of Women from Domestic Violence Act 2005” Therefore, there is no need for a separate withdrawal under Sec. 375.

If marital rape is criminalized, it is more likely that it will be abused which is a major cause cited by individuals, lawmakers and men's rights activists.

Statistics show a gross misuse of 498A, a law relating to dowry cases. Some activists have even claimed that 85% of dowry cases are fraudulent.

Conclusion and opinion: -

As rightly said by former Chief Justice of India Justice Dipak Misra…. “I do not think that marital rape should be regarded as an offence in India, because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values.” Deepika Narayan, a men’s activist has stated that the year 2020 there were total 111,549 cases registered under 498A. out of which 5,520 were false cases as stated by police 16,151 cases were closed by stating the reason of mistake fact or mistake of law. Several innocents’ husbands have committed suicide for falsely being accused of the crime which they have not committed. There is saying that “1000 culprits can be escape, but one innocent should not be punished”, keeping that in mind the author opines that Marital Rape should not be criminalized.

References: -

Marital Rape - Academike (lawctopus.com)

Marital Rape Laws in India (finology.in)

written-submission-407338.pdf (livelaw.in)

Chhattisgarh HC Says Forceful Sex By a Man Against His Wife Is Not Rape (thewire.in)

Debate rages on over criminalising marital rape in India | Latest News India - Hindustan Times

Dipak Misra: Marital rape needn’t be an offence: Ex-Chief Justice of India Dipak Misra | Bengaluru News - Times of India (indiatimes.com)

Deepika Narayan Bhardwaj: Men’s Day special: Meet Deepika Narayan Bhardwaj, a woman who has been tirelessly fighting for men’s rights - The Economic Times (indiatimes.com)