Criminalisation Of Marital Rape: How India Perceives 'Sex In Marriage'

The Delhi High Court’s recent verdict on the criminalisation of marital rape has opened the floodgates of arguments around consent to sexual intercourse with a partner in a marriage.

Delivering a split verdict on Wednesday, the Delhi Hight Court granted leave to the parties to file an appeal before the Supreme Court. While Justice Rajiv Shakdher, who headed the division bench, favoured striking down the marital rape exception, Justice C Hari Shankar said the exception under the IPC is not unconstitutional and was based on an intelligible differentia.

Since early this year, the Delhi High Court has been hearing a bunch of petitions challenging the exception to Section 375 of the Indian Penal Code (IPC), which exempts spouses from being prosecuted for rape within marriage. Under the exception given in Section 375 of the IPC, sexual intercourse or sexual acts by a man with his wife, the wife not being minor, is not rape.

What is marital rape?

Marital rape or spousal rape is primarily characterised by the lack of consent during sexual intercourse with one’s spouse, although the act need not be violent.

Since time immemorial, marriages of different cultures have often been seen as a way to procreate, where the need for consent may not be necessary. Hence, consent during sex is not seen as sexual violence in many traditions and cultures.

Although, over years, many countries have perceived marital rape as a form of sexual violence, historically, sexual intercourse within marriage was regarded as a spouse’s right. At the same time, the prevalence of marital rape across the countries also.

Judicial recommendations on marital rape

As of 2019, 150 countries across the world had criminalised marital rape, with the Soviet Union being one of the first in 1922. Whereas India is still under the clouds of debate to prove its unconstitutionality.

In India, the concept of marital rape has always been very complex, with many laws and verdicts being passed over the ages but not amended. A husband cannot be guilty of rape with his lawful wife.

While there have been many petitions before the courts of India to criminalise marital rape, most have been silenced or dragged on for years without any meaningful verdict.

In 2015, a petition filed by a woman in the apex court was dismissed on the ground that law shan’t change for one woman. In Arnesh Kumar v. State of Bihar, the court had observed that criminalising marital rape will be the collapse of the social and family systems amidst the already existing biased laws.

The Indian judiciary has often perceived criminalising of marital rape as a way to destabilise the foundation of marriage. However, the exception to Section 375 often runs against Section 498A, which makes cruelty against a wife by a husband or relative of a husband a punishable offence.

In 2016, Union minister for women and child development Maneka Gandhi had last year stoked a controversy when she said in Parliament that there cannot be a law against marital rape because marriage is a “sacrament”.

An amendment, was, however, made In 2013, that recognised the rape of women between 12 and 15 years of age as punishable under the act, although it fails to consider the substantial damages done to victims above the given age in marriage.

Recommendations were also made by the Verma Committee to amend the laws around marital rape, stating that marriage doesn’t mean ‘irrevocable consent to sexual intercourse’.

The UN Committee on Elimination of Discrimination against Women also recommended that the Indian government criminalise it.