-By Taniya Adhikary
Section 375 of the Indian Penal Code (IPC), 1860, enumerates rape and outlines its exceptions. Exception 2 to Section 375 read:
“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
The section legalizes spousal husbands from legal consequences for non-consensual sex with their wives, provided the wife is over fifteen years of age. But post the Supreme Court’s ruling in Independent Thought v. Union of India (2017), the minimum age for the exception was raised from fifteen to eighteen years, aligning it with the Protection of Children from Sexual Offences Act, 2012 (POCSO).
Even with this shift, India is one of the very few nations that do not consider marital rape to be a criminal offence.
Understanding Rape and Marital Rape
Under Section 375 IPC, rape is defined as sexual intercourse or penetration (by the penis, any other body part, or object) without the woman’s consent. The offense is punishable under Section 376 IPC, with imprisonment ranging from ten years to life. However, marital rape is excluded from this definition under Exception 2.
Marital rape is a state in which a spouse, usually the husband, forces to have non-consensual sex. Even though the act fulfills all the ingredients of rape, Indian law does not as yet regard it to be an offense.
Why was Section 377 excluded in BNS?
Section 377 IPC criminalized “unnatural offenses” and was used to prosecute certain sexual acts, including those within marriage. The decriminalization of voluntarily same-sex relations by the Supreme Court in Navtej Singh Johar v. Union of India (2018) and the consequent exclusion of Section 377 from BNS reflect a change in Indian jurisprudence. Nevertheless, the omission of Section 377 also did away with possible window for the prosecution of some incidents of forced sexual intercourse within marriage, which further makes the legal status of marital rape more confusing.
Judicial Interpretations on Marital Rape
High Court Rulings:
- Dilip Pandey v. State of Chhattisgarh (2023): The court reaffiremed again that sexual intercourse among lawfully wedded spouses, irrespective of consent, is not unlawful under IPC.
Supreme Court’s Stand:
The Supreme Court has heard a successions of petitions questioning Exception 2 of Section 375 IPC, most notably in the case filed by the All India Democratic Women’s Association (AIDWA), where Senior Advocate Karuna Nundy defended that criminalizing marital rape was imperative to the enforcement of fundamental rights.
Justice J.B. Pardiwala, during a 2024 Supreme Court hearing, questioned:
“The husband demands sexual intercourse. Wife resists. She is wrongfully confined. She is threatened and criminally intimidated. The wife finally succumbs to pressure. So, all the preliminary acts constitute offenses under law, but the act of forced sexual intercourse alone is not a crime?”
Constitutional Violation of Exception 2 to Section 375 IPC
- Article 14 (Right to Equality): The exception is discriminatory in that it differentiates married and unmarried women by granting legal immunity to husbands.
- Article 21 (Right to Life and Personal Liberty): Forced sexual intercourse violates a woman’s dignity, autonomy, and bodily integrity.
- Article 15 (Prohibition of Discrimination): The provision discriminated against women and contravenes gender equality principles.
The Argument Against Criminalization
The critics of criminalizing marital rape argue that:
- Misuse of Law: Similar to Section 498A IPC (dowry harassment cases), they worry that false cases will swamp courts, unduly burdening men.
- Difficulty in Proving Rape in Marriage: Unlike other rape cases, marital rape occurs in private settings, making it harder to establish evidence.
- Impact on the Institution of Marriage: Some argue that criminalizing marital rape could lead to an increase in divorce rates and destabilize familial relationships.
International Perspective: Countries That Have Criminalized Marital Rape
More than 77 Nations, among Canada, the United Kingdom, South Africa, Australia, and Brazil, have criminalized marital rape. The United Nations (UN) Committee on the Elimination of Discrimination Against Women (CEDAW) has urged India to criminalize it in compliance with international human rights obligations.
Conclusion: The Need for Reform
The continued existence of Exception 2 to Section 375 IPC (now Section 63 of BNS) is inconsistent with India’s commitment to gender equality and human rights. Though misuse apprehensions are genuine, safeguards could be initiated, including:
- Requiring corroborative evidence (medical reports, witness testimonies, expert opinions).
- Fast-track courts to dispose of such cases expeditiously.
- Compulsory consent-based marital contracts to establish clearness on spousal rights.
If the Indian Constitution guarantees equality and personal liberty, why should married women be denied protection against sexual violence within marriage? With legal reforms sweeping across various aspects of Indian jurisprudence, the criminalization of marital rape remains a necessary and overdue step in ensuring justice for all women.
What is your view? Should India join the 77 countries that have criminalized marital rape?
Taniya Adhikary is a passionate 3rd year Law student at Bikash Bharati Law College, affiliated to Calcutta University
