Marital Rape in India

By Navya Pandey

Introduction

When a spouse forces non-consensual sexual contact within a marriage, it is referred to as marital rape. In contrast to many other nations where it is considered a criminal offense, marital rape is still a controversial legal and societal problem in India. The Chhattisgarh High Court (HC) decided in the Gorakhnath Sharma vs. State of Chhattisgarh Case, 2019 that a husband cannot be accused of rape or unnatural sex with his wife if she is older than 15, even if she gives her permission. It made use of Section 375 of the IPC’s Exception 2, which shields a husband from rape accusations if his wife is not younger than 15 years old.

What is Marital Rape? 

Forced sex or sexual assault between spouses is a kind of intimate partner abuse known as marital rape. In India, it is not a crime. But if a married couple lives apart, and the wife refuses to have sex with the husband, the husband is guilty of rape.

What is the Legal Status of Marital Rape in India?

  • Exception in Section 375 of IPC: Sexual contact between a man and his own wife who is at least 15 years old is not regarded as rape, according to an exception to Section 375 of the IPC, which defines rape. For women above 15, this provision essentially permits non-consensual sex inside marriage.
  • Protection of Women from Domestic Violence Act, 2005: The Protection of Women from Domestic Violence Act of 2005 acknowledges sexual abuse inside marriage as a kind of domestic violence, even if marital rape is not illegal. This does not, however, result in criminal prosecution because it is a civil statute.
  • Age of Consent: The Indian Supreme Court increased the legal age of consent for sexual relations inside a marriage from 15 to 18 years old in 2017. This meant that a man could not have sex with his wife if she was younger than 18.
Status of Marital Rape in India

What are the Judicial Rulings on Marital Rape?

  • Independent Thought v. Union of India (2017): The Indian Supreme Court declared that having sex with a minor wife (less than 18 years old) is rape, therefore eliminating the exemption for females between the ages of 15 and 18 under Section 375 of the Indian Penal Code (IPC).
  • Delhi High Court Proceedings (Ongoing as of 2023): Arguments that the marital rape exemption under Section 375 of the IPC violates fundamental rights under Articles 14 (right to equality), 15 (prohibition of discrimination), 19 (freedom), and 21 (right to life and personal liberty) of the Indian Constitution have been made in a number of petitions filed in the Delhi High Court.
  • Justice JS Verma Committee Recommendations (2013): The committee stated that the Section 375 exemption was discriminatory and infringed upon the rights of women, and it recommended that marital rape be made a crime.
  • State of Maharashtra v. Madhukar Narayan Mardikar (1991): The Supreme Court ruled that a woman has the right to decline sexual relations, even if she is married, and that her body belongs to her.
  • Nimeshbhai Bharatbhai Desai v. State of Gujarat (2018): The Gujarat High Court urged for the criminalization of marital rape, stating that it is a type of sexual assault.

Also read: Women’s Reservation Bill for Gender Equality 2023

What are the Judicial Ruling on Unnatural Sex?

The Indian Penal Code (IPC), Section 377, which once made “carnal intercourse against the order of nature” a crime, is the main law that deals with “unnatural sex” in India.

  • Naz Foundation v. Government of NCT of Delhi (2009): According to the Delhi High Court, Section 377 infringed against the Indian Constitution’s fundamental rights to equality (Article 14), nondiscrimination (Article 15), and life and personal liberty (Article 21). As a result, the court decriminalized consenting gay conduct.
  • Suresh Kumar Koushal v. Naz Foundation (2013): The Supreme Court reaffirmed Section 377 and essentially recriminalized consenting gay conduct by overturning the 2009 Delhi High Court ruling.
  • Navtej Singh Johar v. Union of India (2018): Consensual homosexual actions between adults were unanimously decriminalized by the Supreme Court in a landmark ruling, which ruled that Section 377 was unconstitutional to the degree that it criminalized such behavior.

What are the Global Perspective on Marital Rape Laws?

  • Countries Where Marital Rape is Criminalized
    • United States
    • United Kingdom
    • Canada
    • Australia
    • European Union
    • South Africa
    • Nepal
  • Countries with Partial Criminalization
    • China
    • Singapore
    • Indonesia
  • Countries Where Marital Rape is Not Criminalized
    • India
    • Saudi Arabia
    • Pakistan
    • Nigeria
    • Iran

What are the Impact of Marital Rape on Victims?

  • Physical Impact
    • Injuries
    • Sexual and Reproductive Health Issues
    • Long-Term Health Problems
  • Psychological Impact
    • Post-Traumatic Stress Disorder 
    • Depression
    • Anxiety Disorders
    • Low Self-Esteem
    • Dissociation
  • Emotional Impact
    • Betrayal Trauma
    • Fear and Helplessness
    • Anger and Resentment
    • Emotional Numbness
  • Social Impact
    • Isolation
    • Stigma
    • Strained Relationships
    • Economic Dependence
  • Impact on Children and Family
    • Witnessing Abuse
    • Family Dynamics
    • Intergenerational Cycle of Abuse

What are Arguments For and Against Criminalizing Marital Rape?

Here is a table outlining the arguments for and against criminalizing marital rape:

Arguments For Criminalizing Marital RapeArguments Against Criminalizing Marital Rape
Violation of Consent: Marriage does not imply perpetual consent; every individual has the right to refuse sex.Traditional Marriage Views: Some argue that marriage implies a duty of sexual relations, making criminalization unnecessary.
Human Rights Protection: Criminalizing marital rape upholds fundamental human rights, including bodily autonomy and dignity.Difficulties in Evidence: Critics argue that proving marital rape can be challenging due to the nature of intimate relationships.
Legal Consistency: If rape is a crime outside marriage, it should be treated the same way within marriage.Potential for Misuse: Some fear false accusations in marital disputes, especially during divorce or custody battles.
Psychological and Physical Harm: Marital rape can cause severe trauma, just like non-marital rape.Alternative Legal Remedies Exist: Some argue that existing laws on domestic violence and assault are sufficient.
International Legal Standards: Many human rights treaties and international organizations advocate for the criminalization of marital rape.Cultural and Religious Considerations: In some societies, cultural or religious beliefs discourage recognizing marital rape as a crime.
Gender Equality: Recognizing marital rape as a crime promotes equal rights in marriage.Preservation of Marriage: Some believe criminalizing marital rape could lead to more divorces and weaken the institution of marriage.

Conclusion

Marital rape remains a deeply concerning issue in India, reflecting legal and societal challenges. While global norms recognize it as a crime, Indian law still provides exceptions that undermine women’s autonomy. Criminalizing marital rape is essential for gender equality, human rights, and justice. Legal reforms, awareness, and societal change are crucial to ensuring dignity and protection for all individuals.

Frequently Asked Questions(FAQs)

  • Is marital rape a crime in India?

    No

  • Why is marital rape not recognized as a crime in India?

    Cultural beliefs, patriarchy, and lack of political will prevent legal recognition.

  • Can a wife file a complaint against marital rape in India?

    While she cannot file for rape, she may seek relief under domestic violence or cruelty laws.

  • How can marital rape be criminalized in India?

    Legal amendments, societal awareness, and pressure on policymakers are essential.

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