'Criminalisation of marital rape in India'

What are Legal provisions linked to Marital Rape?

It occurs when a man imposes intercourse on his wife either by force, threat of
force, or when the wife is unable to consent. And just as domestic violence has
been made punishable by law, so should domestic sexual abuse, because rape is
rape, regardless of whether it is committed by husband, father-in-law, uncle or
stranger. Since the late 20th century, most of the developed world has
criminalised marital rape but >India has still not.

Repeating almost verbatim the words of Minister of State for Home Affairs
Haribhai Chaudhary in April 2015, Ms. Gandhi has said that ‘marital rape’
cannot apply in India because of factors like illiteracy, poverty, social customs,
religious beliefs, and the “sanctity” of marriage. How are we to understand this?
That it is okay for a man to sexually abuse his wife because they are poor?
Because they are illiterate? Because their marriage is solemnised by a religious
ritual? Invoking arguments of destitution, religious belief and social custom can
result to justifying several regressive practices that have rightfully been thrown
out by law.

In India, marital rape is not defined in any statute or law.

 Section 375 of the Indian Penal Code (IPC) defines rape as a criminal

offence and states that a man commits rape if he has sexual intercourse
with a woman without her consent or if she is a minor.
o However, according to Exception 2 to Section 375 “sexual
intercourse by a man with his wife, the wife not being under
fifteen years of age, is not rape

 However, in a landmark judgment in 2018, the Supreme Court of India

held that it will be considered rape if a man has sexual intercourse
with his wife if she is aged between 15 and 18
o This exemption essentially allows a marital right to a “husband”,
who can with legal sanction exercise his right to consensual or non-
consensual sex with his “wife”. 
 This exemption is being challenged as unconstitutional as it
undermines the consent of a woman based on her marital
status

 The only recourse against non-consensual sex for married women are

civil provisions under the Protection of Women from Domestic
 Violence Act or Section 498-A of the IPC on cruelty against a wife by
the husband or a husband’s relatives.

Arguments Against criminalizing Marital Rape

  Destabilize marriage as an institution: It may create absolutely

anarchy in families destabilizing the institution of marriage and
thereby destroying the family platform which upholds family values and
helps in sustaining the country.
o Indian society believes that marriage is a sacrament

 Misuse of law: It may become an easy tool for harassing the

husbands by misusing the law similar to the growing misuse of section
498A (harassment caused to a married woman by her husband and in-
laws) of the IPC.

 Awareness is more important: Merely criminalizing marital rape may

not stop it as “moral and social awareness” plays a vital role in
stopping such an act.

 Diversity in Cultures of the states: India has its unique problems due to

various factors like literacy, lack of financial empowerment of the
majority of females, the mindset of the society, vast diversity, poverty,
etc. and these should be considered carefully before criminalizing marital
rape.
o Also, criminal law is in the Concurrent List and implemented by
the states and there is a vast diversity in the cultures of these states

 Law Commission has not recommended: Indian Law Commission and

the Parliamentary Standing Committee on Home Affairs after thoroughly
examining the matter did not recommend the criminalization of marital
rape.
 No violation of Article 21: Non-criminalisation of marital rape is “not a
violation” of Article 21 of the Constitution as a wife is not compelled
to live with a sexually abusive husband under personal law.

 Implementation issues: Criminalizing marital rape will create serious

implementational issues like
o If all sexual acts by a man with his wife will qualify to be marital
rape, then the judgment as to whether it is a marital rape or not
will singularly rest with the wife who cannot always be trusted.
o What evidences the courts will rely upon in such circumstances, as
there can be no lasting evidence in case of sexual acts between a
man and his wife