• If sexual acts by a man with his own wife is made punishable as “rape”, it may severely impact the conjugal relationship and lead to serious disturbances in the institution of marriage, the Centre has told the Supreme Court.

• Opposing the criminalisation of marital rape, which is sought by many petitioners before the apex court, the Centre has filed its preliminary counter affidavit in the top court.

• The apex court is seized of petitions raising the vexed legal question of whether a husband should enjoy immunity from prosecution for the offence of rape if he forces his wife, who is not a minor, to have sex.

What is the stand of the Centre?

• Under the exception clause of Section 375 of the Indian Penal Code (IPC), now repealed and replaced by the Bharatiya Nyaya Sanhita (BNS), sexual intercourse or sexual acts by a man with his wife, the wife not being minor, is not rape.

• Even under the new law, exception 2 to Section 63 (rape) says that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape”.

• The Centre said that in the fast growing and ever changing social and family structure, misuse of the amended provisions can also not be ruled out as it would be difficult and challenging for a person to prove whether consent was there or not.

• It said to decide on the constitutionality of the provision, a holistic approach and consultation with all the states needs to be undertaken after taking their views into consideration.

Section 375 of IPC and Marital Rape Exception

• The Indian Penal Code (IPC) was introduced in 1860 during British colonial rule. Initially, the marital rape exemption applied to wives over 10 years of age. 

• This age was raised to 15 in 1940, and in 2017, the Supreme Court raised it to 18 years.

• The Doctrine of Coverture, a colonial-era concept, also influenced this exception. It held that after marriage, a woman loses her individual legal identity, effectively making her the husband’s property.

• Section 375 IPC defines the offence of rape and includes seven scenarios where consent is vitiated. However, it also contains a crucial exemption:

• Marital Rape Exception: Sexual intercourse by a man with his own wife is not considered rape, provided the wife is not under 18 years of age.

Advocacy for recognising marital rape as a criminal offence

Law Commission of India: In its 172nd Report on Review of Rape Laws, the Law Commission of India rejected the proposal to remove the marital rape exception while reviewing India’s laws on sexual violence. Despite several suggestions for reform, the Commission decided to retain the marital rape exception in Section 375 of the Indian Penal Code (IPC).

J.S. Verma Committee: In 2012, following the brutal Nirbhaya gang rape case, the Justice J.S. Verma Committee was established to recommend changes to India’s laws on sexual violence. 

The committee’s recommendations led to significant reforms in the Criminal Law (Amendment) Act of 2013, which included stricter punishments for sexual crimes and expanded the legal definition of rape.

However, not all of the committee’s suggestions were implemented. Notably, the recommendation to criminalise marital rape was not acted upon.

Despite the committee’s strong advocacy for recognising marital rape as a criminal offence, citing it as essential for upholding women’s rights and bodily autonomy, the government did not incorporate this change, leaving the marital rape exception in Section 375 of the Indian Penal Code (IPC) intact.

Judicial View:

• Kerala High Court: Ruled that marital rape, though not a penal offence, could be a ground for divorce.

• Karnataka High Court: Held that a husband could be charged with rape if he forcibly engages in sex with his wife.

• Delhi High Court: Issued a split opinion on the matter. One judge declared the marital rape exception unconstitutional, while the other deferred the issue to the legislature.

• Gujarat High Court: Recognised the need to address marital rape but limited the husband’s liability to outraging modesty and unnatural sex due to legal constraints.

• Supreme Court Ruling in Independent Thought vs. Union of India (2017): Criminalised sexual intercourse with a wife under 18 but did not address marital rape for adult women.

• In Suchita Srivastava vs Chandigarh Administration, the Supreme Court of India equated the right to make choices related to sexual activity with fundamental rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution. 

• Similarly, in Justice K.S. Puttaswamy (Retd.) vs Union of India, the Court recognised the right to privacy as a fundamental right for all citizens. This right to privacy includes the concept of decisional privacy, which protects an individual’s ability to make intimate decisions, including those related to sexual and procreative matters.

• In September 2022, the Supreme Court of India delivered a landmark ruling that expanded the scope of women’s reproductive rights, including the right to safe abortions regardless of marital status. In this judgment, the Court held that, for the purposes of the Medical Termination of Pregnancy (MTP) Act, the term rape should also encompass marital rape.

• This ruling was significant as it recognised that non-consensual sex within marriage could be considered under the legal framework for terminating pregnancies, granting women the right to seek an abortion in such circumstances. The decision did not criminalise marital rape in a broader sense but acknowledged its existence in the context of reproductive rights, marking a progressive step in addressing the issue within India’s legal system.

Arguments in favour of criminalising marital rape

• The United Nations Declaration on the Elimination of Violence against Women defines violence against women as any act of gender-based violence likely to cause physical, sexual, or mental harm or suffering, whether in public or private life. 

• The UN Committee on Elimination of Discrimination Against Women (CEDAW), in 2013, urged the Indian government to criminalise marital rape, recognising it as a form of domestic violence.

• Criminalising marital rape would strengthen women’s autonomy and dignity, ensuring that marriages are built on the foundation of mutual consent rather than coercion.

• By removing the marital rape exception, women would be safer from sexual violence within their marriages, empowering them to escape abusive relationships and seek justice. 

• This step would also align India’s legal framework with global standards on gender equality and human rights, ensuring women’s protection against all forms of sexual and domestic abuse.

(The author is a trainer for Civil Services aspirants.)