Marital Rape In India: The History Of Challenging the Exception

The Supreme Court of India has agreed to list pleas concerning whether marital rape should be treated as a criminal offence or remain an exception to the criminal offence of rape. The court heard the matter last in January when the Central government informed the court that it has asked the State governments to give their inputs on whether martial rape should be criminalised. 

Section 375 of the Indian Penal Code deals with the criminal offence of rape. It lists seven circumstances, such as when a man does not gain a woman’s consent, or when he gains consent through threat of violence, under which sexual intercourse is considered as rape. Those found guilty under the law are given a prison term of 10 years which can be extended to a life sentence, along with a possible fine. But one notable and criticised exception to the law is “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape,” which essentially protects an Indian man from being convicted of rape if his wife is above 18 years of age.

Challenging the marital rape exception

In 1860, the IPC came intro force which limited the marital rape exception to women only above 10 years of age. The law was later amended and the exception was made available to women above 15 years of age in 1940. 

In 2015, the first petitions to criminalise marital rape were filed in the Delhi High Court. The court issued a notice to Centre and sought its stand on the same.

In 2017, the Central Government filed an affidavit in the case, saying that criminalising marital rape "may destabilise the institution of marriage" and become a potential tool for harassing husbands. Supreme Court then read down the marital rape exception and ruled that sexual intercourse by a man with his wife, when the wife not being under eighteen years of age, is not rape. Earlier, the exception was limited to if the wife was under fifteen years of age. 

In 2022, the hearings began on the petitions seeking criminalisation of marital rape. The Centre filed an additional affidavit in the case, saying that it was considering a “constructive approach” to the issue of criminalising marital rape and has sought suggestions from stakeholders including state governments and union territories and hence, sought more time to present its stand.

A month later, the Delhi High Court reserved it verdict on petitions, after refusing to grant more time to Centre saying it was not possible to adjourn an ongoing matter as there was no definite date by when the government's consultations would be over on the issue.  While Justice Shakdher, who headed the division bench, favoured striking down the marital rape exception for being "unconstitutional" and said it would be "tragic if a married woman's call for justice is not heard even after 162 years" since the enactment of the IPC, Justice Shankar said the exception under the rape law is not "unconstitutional and was based on an intelligible differentia".

In March 2022, Justice M Nagaprasanna of the Karnataka High Court, refused to quash a rape charge against a man accused of raping his wife and keeping his wife as a sex slave. The single-judge said that the institution of marriage cannot be used to confer any special male privilege or a license for unleashing of a "brutal beast" on the wife. In July 2022, the Supreme Court stayed this Karnataka High Court order, although the Karnataka government supported the High Court's ruling in December that year.

On a related note, in September 2022, the Court observed that for the purposes of the Medical Termination of Pregnancy (MTP) Act, marital rape has to be considered as falling within the meaning of 'rape' in order to save women from forceful pregnancy. 

Activists and lawyers have time and again reiterated the concern of absence of legal protection against marital rape in India. Estimates from the third (2005-06) and fourth (2015-16) rounds of the National Family Health Survey (NFHS) revealed that the prevalence percentage of Intimate Partner Violence (IPV) against women ranges between 3% to 43% in different states of the country. The fifth round of the survey, held in 2019-20 and conducted in about 637,000 sample households in 707 districts of 28 states and eight union territories, suggests that 1 in 3 women in India aged 18-49 experience spousal violence, with at least 5%-6% of the women reporting sexual violence.

However, the survey also cautions against “under-reporting” as anecdotal evidence gathered by the study indicates that approximately 9 out of 10 victims of intimate partner violence refused to disclose the violence or abuse they suffer due to a number of factors, including fear of stigma, reprisals, and dependence on the spouse. 

The court had previously scheduled the hearing of the marital rape petitions for May 9 but later decided to defer them until the constitution benches complete their ongoing hearings.