Marital Rape in India and the laws encircling it

The Indian Penal Code defines rape under Section 375. The Section under its ambit primarily encompasses all forms of non-consensual sexual intercourse and other non-consensual sexual penetration perpetrated against a woman, the punishment of which is mentioned under section 376 of IPC, 1860. However, a shocking exception is made in Section 375 that marital rape i.e non-consensual sexual intercourse by a man with his wife would not be considered as rape.

On the other hand Section 376B provides for punishment for sexual intercourse by husband upon wife during separation. It provides that whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.

According to the 42nd Law Commission report, the Indian criminal jurisprudence assumes that living together raises a presumption that the wife has consented to sexual intercourse by the husband however after separation the institution of marriage subsists where the penalization of rape is valid. When other instances of violence by a husband towards his wife are criminalized then there is justification for rape in marriage to be alone shielded from the operation of criminal law.

The 172nd Law Commission rejected this argument and said that there is a fear that criminalization of marital rape would lead to excessive interference with the institution of marriage. Therefore, rape in India is a civil offense by virtue of the Protection of Women from Domestic Violence Act, 2005.

In Bodhisattwa Gautam v. Subhra Chakraborty, the Supreme Court said that rape is a crime against basic human rights and a violation of the victim’s right to life enshrined in Article 21 of the Constitution. Yet the judiciary negates this very pronouncement by not outright recognizing marital rape in manifold judgments. In one of the instances, former Chief Justice of India, Dipak Misra said to Deccan Herald that marital rape should not be made a crime in India, “because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values.”

The criminalization of marital is still important. The Supreme Court in Independent Thought v. Union of India elucidated that if divorce and judicial separation have not destroyed the institution of marriage then anything other than the Indian State criminalizing marriage itself can’t destroy the institution of marriage and therefore criminalizing marital rape certainly can’t either.

The woman or the victim generally is left with no recourse either from the family or from the state as well. When the gravity of the crime is of such a high level as rape, laws protecting the woman must be there.

Seeing the other side of the coin, marital rape would violate the Article 21 of the constitution of India which eliminates the right to live with human dignity

The IPC considers that it is rape if the girl is below 16 years and not the wife of the man alleged even if she consents, but if she is a wife, not below 15 and does not consent, it is not rape. Another lacuna in place is that it is rape if there is non-consensual intercourse with a wife who is aged between 12 and 15 years. However, the punishment may either be a fine or imprisonment for a maximum term of 2 years or both, which is quite less in comparison to the punishment provided for rape outside the marriage.

Marriage is considered a sacred bond and a closed relationship between two individuals. The concept of marital rape is very important to be understood by the legislators and bring reform by criminalizing it. The woman suffering from such trauma need to have some recourse.

This article is purely for educational purposes and all not be misconstrued as a piece of professional advice. If done so the people at The Legal Cartel along with the author shall not be responsible for any loss or harm incurred whatsoever.

About the author::

The author is an advocate practicing before the Hon'ble High Court of Madhya Pradesh Bench at Indore and the lower courts below. For further clarification, kindly consult the author.