Central Idea

• CJI DY Chandrachud has agreed to list a series of petitions seeking the criminalisation of marital rape for an early hearing.
• The petitions, triggered by decisions from the Karnataka and Delhi High Courts, aim to challenge the exception in Section 375 of the Indian Penal Code (IPC) that currently decriminalises marital rape.

What is Marital Rape?

• Marital rape is the act of sexual intercourse with one’s spouse without her consent.
• It is no different manifestation of domestic violence and sexual abuse.
• Sex and sexual violence are different altogether irrespective of the person in intercourse.

Why discuss this?

• Historical Perspective: Marital rape was historically considered a right of spouses, but it is now recognized as a form of sexual abuse and domestic violence in many societies worldwide.
• Indian Penal Code: Marital rape is not explicitly recognized as a criminal offense under Section 375 of the Indian Penal Code (IPC).
• Exception: Exception Two of Section 375 decriminalizes marital rape, stating that sexual intercourse by a man with his own wife, who is not under 18 years of age, without her consent is not considered rape.
• Non-Criminalization: India is one of the fifty countries that have not yet outlawed marital rape.

Background and High Court Decisions

• Karnataka HC: It had in April 2022 held that a husband could be charged with rape if he had forcible sexual intercourse with his wife.
• Delhi HC: A Division Bench delivered a split verdict in May 2022 on the issue of marital rape. It struck down ‘exception two’ as unconstitutional, while another judge rejected the plea to criminalise marital rape, suggesting that any changes in the law should be addressed by the legislature.
• Gujarat HC: Before this ruling, in 2018, the Gujarat High Court also called for a relook at the marital rape immunity but quashed the charge of rape against the married man.

Key observations by Delhi High Court

• Spousal Intimacy: The court highlighted that consent within a marriage is often given as a part of spousal intimacy, even when the will to engage may be absent.
• Written Agreements: The court suggested that treating every such case as marital rape could result in partners having to draft detailed written agreements for survival in a marriage.
• Burden of Evidence: The court expressed concerns about creating a detailed evidentiary record of every act of intimacy or involving a third party as a witness.
• Marriage Obligations: The court emphasized that marriage entails obligations, including conjugal expectations, financial responsibilities, and duties towards progeny.
• Sexual Liberty: The court noted that signs of injury on a partner may not necessarily indicate non-consensual sex but could be a result of passion in the age of sexual liberation.
• Cruelty vs. Rape: The court stated that forced sexual intercourse between spouses cannot be treated as rape and, at most, could be considered sexual abuse under the Domestic Violence Act.

Reasons against Criminalization

• Traditional Views: The reluctance to criminalize non-consensual sex between married couples is attributed to traditional views of marriage.
• Religious Doctrines: Interpretations of religious doctrines often influence the perceptions of marital relationships.
• Gender Norms: Societal expectations of male and female sexuality and the subordination of wives to their husbands contribute to the resistance against criminalization.
• Subjectivity: Determining consent in marital rape cases can be subjective and intricate.
• Potential Misuse: Without adequate safeguards, criminalizing marital rape could be misused by dissatisfied wives to harass their husbands, similar to the misuse of dowry laws.
• Judicial Burden: Criminalizing marital rape could increase the burden on the judiciary, diverting resources from other important cases.

Arguments for Criminalization

• Associated Violence: Marital rape is often accompanied by physical violence, making it a more dangerous form of sexual abuse.
• Mental Harassment: Research indicates that marital rape can cause more emotional and physical harm than rape by a stranger.
• Abusive Relationships: Marital rape is frequently part of an abusive relationship rather than a one-time event.
• Violation of Rights: Criminalizing marital rape is seen as a violation of fundamental rights, including the right to privacy and bodily integrity guaranteed under Article 21 of the Indian Constitution.

Challenges in Prosecuting Marital Rape

• Lack of Awareness: Limited public awareness and reluctance of authorities to prosecute are common challenges globally.
• Gender Norms: Societal norms that subordinate wives to their husbands make it difficult for women to recognize and report marital rape.
• Acceptability: Prevailing social norms often prevent the acceptance of the concept of marital rape.

Present Regulations in India

• Indian Penal Code: The IPC criminalizes rape in most cases, but marital rape is not illegal when the woman is over 18 years of age.
• Age of Consent: Until 2017, men married to women between 15 and 18 years old could not be convicted of rape.
• Separated Wives: Marital rape of an adult wife who is separated, officially or unofficially, is a criminal offence punishable by imprisonment.
• Domestic Violence Act: The Protection of Women From Domestic Violence Act (2005) provides married women subjected to marital rape with the right to demand financial compensation and seek shelter or aid homes.

Way forward

• Recognition of Rights: Sanctioning marital rape acknowledges a woman’s right to control her body and self-determination.
• Need for Concrete Law: The absence of a clear law makes it challenging for the judiciary to decide domestic rape cases without solid evidence.
• Balancing Rights and Duties: The judiciary should consider the rights and duties of both partners before providing a final interpretation.

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