What is Marital Rape in India?

Recently, a two-judge bench of the Delhi High Court delivered a split verdict on the issue of criminalizing marital rape . The primary issues that were raised were whether marriage grants the husband an expectation for sexual relations with his wife and results in implied consent from her and whether striking down the exception will create a new offense of marital rape. Since marital rape is not a crime according to Section 375(2) of the Indian Penal Code (IPC), 1860 , striking down the exception will result in making marital rape an offense. India is one of the few countries around the world that does not treat non-consexual sex within marriage as rape.

What is Section 375(2) of IPC?

Section 375 of IPC lays down certain sexual acts by a man with a woman done in the absence of her consent or against her will that constitutes rape. The provision, however, provides for the following two exceptions:

1. A medical procedure or intervention, and

2. Sexual intercourse or act by a man with his wife.

Earlier the age limit for the wife was 15 years. It was later increased to 18 years by the Supreme Court in October 2017.

What is the History of Marital Rape in India?

In 2000, the Law Commission of India did not consider the need to remove the exception of marital rape while it was considering several reforms to India's laws on sexual offenses that were proposed. As a result of the Nirbhaya gang rape, a committee headed by Justice JS Verma was constituted to propose amendments to the Indian rape laws. While some recommendations were accepted, which led to the Criminal Law (Amendment) Act, 2013, others, including modifications to the marital rape provision were rejected. The Delhi High Court has been hearing arguments in the matter since 2017. However, this is not the first time that the matter of criminalizing marital rape has been raised in India. When brought up in Parliament in 2015, the idea of criminalizing marital rape was rejected by the Home Minister at that time who stated that since marriage is a sacrament or is sacred in the Indian society, marital rape cannot constitute an offense of rape in India.

Why is Marital Rape not an Offence in India?

IPC 1860 came into existence in India during the colonial rule of the British. It is based upon an 1847 draft prepared by Lord Macaulay who was the Chairman of the First Law Commission of India. The exception was applicable to a woman above 10 years of age in the first version of the Code. This limit was increased to 15 years in 1940 and further to 18 years in 2017. The exception of marital rape is also primarily influenced by the following two colonial-era doctrines:

1. The Doctrine of Hale: According to the doctrine of Hale, a man cannot be held guilty of raping his wife since she has given herself up in this regard to her husband by their matrimonial consent and contract. The doctrine was laid down by Matthew Hale in 1736.

2. The Doctrine of Coverture: According to the doctrine of Coverture, a woman loses her legal identity after her marriage. The husband and wife are one person after their marriage as the identity of the wife consolidate with that of her husband. As a result, the woman cannot act against her husband's will.

Does criminalizing Marital Rape make it an Offence?

One of the primary issues that have been raised in the recent proceedings is whether the criminalization of marital rape will create a new offense. Many have argued that striking down marital rape will eliminate the protection that men have from being prosecuted for non-consensual sexual intercourse with the wife but will not create a new offense. When the Supreme Court raised the age for the exception for marital rape from 15 to 18 years, it explicitly stated that no new offense is being created by striking down Section 375(2) partially.

What is the Status of Marital Rape around the World?

According to Amnesty International, 77 out of 185 countries criminalize marital rape. Some of them either do not mention marital rape or exclude it explicitly from their laws. India is one of the ten countries that expressly allow for marital rape including Jordan, Nigeria, Lesotho, Oman, Indonesia, Ghana, Singapore, Tanzania, and Sri Lanka. 74 countries around the world allow women to file a complaint against their husbands.

What Legal Action can be taken against Marital Rape?

Marital rape is not an offense in India. However, a lot of women face forceful or non-consensual sexual intercourse with their husbands. In such a case, an aggrieved woman can take the following legal action:

1. File an FIR under Section 498A (Husband or relative of husband of a woman subjecting her to cruelty) of IPC, 1860 - A person convicted under this provision is liable to be imprisoned for a term that may extend to 3 years and with a fine,

2. File an application under the Protection of Women from Domestic Violence (DV) Act, 2005 - The definition of domestic violence includes sexual abuse under Section 3 of the Act. The Act, however, provides only for civil remedies and provides for no way through which an aggrieved wife can initiate criminal proceedings against her husband.

3. File a plea seeking divorce on the ground of cruelty under Section 13(1) of the Hindu Marriage Act (HMA), 1955.

Important Judgment

In 2021, the Kerala High Court held that marital rape is a valid ground for divorce regardless of its penal status in India. The Court held that, although not penalized in India, marital rape is a good and valid ground to claim divorce and that it falls under the ambit of physical and mental cruelty.

Why do you need a Lawyer?

Marital rape is a grave and atrocious situation to be in especially since it is not recognized as an offense in India. An aggrieved wife, however, can still take legal action against her husband if he has non-consensual sexual intercourse with her. You can either file an FIR under Section 498A of IPC, file an application under the DV Act, or file a plea seeking divorce under Section 13(1) of HMA. However, it is essential that the services of an expert divorce lawyer or criminal lawyer are engaged as they can figure out the best course of action. Further, they are better equipped with the knowledge of the relevant laws and complex court procedures that can strengthen your case.

Advocate Chikirsha Mohanty

4.0 | 2+ user ratings Greater Kailash - 1, Delhi
5 years

GET LEGAL HELP

GET LEGAL HELP

Googling your legal issue online?

The internet is not a lawyer and neither are you.
Talk to a real lawyer about your legal issue.

TALK TO A LAWYER