Marital Rape

Syllabus: General Studies Paper 2

A two-judge Bench of the Delhi High Court has delivered a split verdict in a batch of petitions challenging the exception provided to marital rape in the Indian Penal Code

• The court was hearing a clutch of four petitions challenging the constitutionality of the exception to Section 375
• While one judge held that the exception under Section 375 of the IPC is unconstitutional, the other judge held that the provision is valid

What is the marital rape exemption?

• Section 375 defines rape and lists seven notions of consent which, if vitiated (violated), would constitute the offence of rape by a man.
• The provision contains a crucial exemption: “Sexual intercourse by a man with his own wife, the wife not being under eighteen years of age, is not rape.”
• This exemption essentially allows a marital right to a husband who can with legal sanction exercise his right to consensual or non-consensual sex with his wife.

What happens when there is a spilt verdict?

• In case of a split verdict, the case is heard by a larger Bench.
• The larger Bench to which a split verdict goes can be a three-judge Bench of the High Court, or an appeal can be preferred before the Supreme Court.

Arguments for criminalizing Marital Rape

• A marriage should not be viewed as a license for a husband to forcibly rape his wife with impunity.
• The Doctrine of Coverture: The marital exception to the IPC’s definition of rape was drafted based on Victorian patriarchal norms
• The Doctrine of Coverture – It did not allow married women to own property, and merged the identities of husband and wife
• Against Basic Rights of Women – Indian women deserve to be treated equally under Article 14
• Bodily Integrity is intrinsic to Article 21: A woman is entitled to refuse sexual relations with her husband as the right to bodily integrity and privacy is an intrinsic part of Article 21 of the Constitution
• The Justice Verma committee set up in the Nirbhaya gang-rape case and the UN Committee on Elimination of Discrimination Against Women (CEDAW) in 2013 had recommended that the Indian government should criminalize marital rape
• Rape is rape, irrespective of the identity of the perpetrator, and the age of the survivor.

Arguments against criminalizing Marital Rape

• Destabilize marriage as an Institution – It will create anarchy in families and destabilize the institution of marriage
• Misuse of law – It may become an easy tool for harassing the husbands by misusing the law similar to misuse of Section 498A (harassment caused to a married woman by her husband and in-laws) of IPC and the Protection of Women from Domestic Violence Act, 2005.
• Diversity in Cultures of the states – Criminal law is in the Concurrent List and implemented by the states and there is a vast diversity in the cultures of these states

Way forward

• The legislature should take cognizance of this legal infirmity and bring marital rape within the purview of rape laws by eliminating Section 375 (Exception) of IPC
• Adopt multi-stakeholder approach while deciding the sentencing
• Bringing behavioral changes awareness campaigns sensitizing the public regarding the importance of consent, medical care and rehabilitation