Marital Rape

For the last few months, we are seeing many news items/articles on marital rape in the country. There are many petitions filed by married women in different courts describing their mental torture because of forcible sex by the spouse, which ends in rape. All these petitioners want that marital rape should be made as a criminal offence. As per the existing laws, marital rape is not a criminal offence.

India remains one of the few countries in the world that does not treat non-consensual sex within marriage as rape. One of the primary issues being considered by courts is whether marriage gives the husband an expectation of sexual relations and if there is implied consent for sex by the wife. Besides, if the court strikes down this exception, would it create a new offence? Section 375 of the Indian Penal Code (IPC) says that sexual acts by a man on a woman against her free will or consent would constitute rape. However, there is two exceptions to this. The first exception says that “ a medical procedure or intervention shall not constitute a rape. As per the second exception “ sexual intercourse or sexual acts by a man with his own wife” when the wife is above  18 years of age would not constitute rape. It is this provision that is being constitutionally tested.

While marital rape is not a criminal act in India, a woman could file a case under other provisions of the IPC, such as cruelty, and could also file for a divorce. A case is being heard in Delhi High Court (HC), where the petitioners want the exception to struck down in totality, on the grounds that this exception violates the fundamental rights of a married woman. The problem is that the IPC was enacted in 1860 under British colonial rule. Many other countries who had enacted similar acts during those days have amended their laws and made marital rape as a criminal act.

Now in the ongoing case in HC, what are the petitioners’ and respondents’ positions? The petitioners’ argument is that the exception to marital rape should be struck down because it is unconstitutional. It violates a married woman’s right to equality, the right to life with dignity, and right to self expression, all of which are guaranteed under the constitution. They point out  that this provision also creates an anomaly, where slapping or killing one’s wife is criminal but not raping her. They also argue that concerns of misuse in case of exception is struck down are misplaced since only a minuscule percentage of the reported rapes turn out to be false.

The Central Govt is the main respondent in this case. On 13^th January 2022, it  said that it is already contemplating an overhaul of the entire criminal law framework and has invited suggestions from all stakeholders, which includes all the state govts and Union territories.. Earlier the central govt had told the same court few years back, that removing the marital rape exception would destabilize the institution of marriage and would be used to harass husbands.

The two advisors to the court-appointed in the case  have also told the court that the exception should be struck down. However, some men’s right groups have opposed striking down the marital rape exception.

Yesterday (21^st January 2022), the central govt reiterated its commitment to protect the liberty, dignity, and rights of every woman. We will say yes or no only after having consultations (with all states, UTs and other stakeholders). It is, therefore, desirable that the final adjudication by this court in the present batch of petitions be deferred. The Delhi HC’s response was, “ You (the centre) can have consultations going on. But if you say the court should adjourn the matter endlessly. It won’t happen. The case will be closed either through the court’s channel or legislature channel. You have to take a stand this way or that way. A decisive executive has to say yes or no.

Presently the Delhi HC has reserved its judgment, and it is expected that during the next hearing sometime on March 22, HC will give its judgment.

In my opinion, the exception in the law should be struck down, but due care should be taken that the man should not suffer because of a false case, as who is going to prove in the marital rape cases, whether the rape had taken place or not. As previously, within the anti dowry law, there have been enough false cases against men that they have tortured wives for dowry. There should not be any loopholes left in the law, which enables any man or woman to use the law to settle the personal score.

So let us wait and watch for  further development in this case.

Waiting for your views on this blog.

Anil Malik

Mumbai, India

22^nd February 2022.