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Demystifying Marital Rape: Section 63 and Consent Laws in India

Updated: Jan 27

Marital rape is forcing one's spouse to engage in sexual acts without their consent. It is recognised as a crime around the world in over 150 countries, Marital Rape isn’t recognised as a crime in India. India does not have a specific law criminalising marital rape. Unlike many other countries, Indian law does not explicitly recognize the concept of marital rape as a criminal offense. The exception to this is if the wife is under 18 years old, as the legal age of consent is 18 in India. Sec 63 of the Bharatiya Nyaya Sanhita defines Rape as against her will and without her consent. A man is said to commit “rape” if he commits it under the circumstances falling under any of the following seven descriptions: — (i) against her will.

(ii) without her consent.

(iii) with her consent, when her consent has been obtained by putting her or

any person in whom she is interested, in fear of death or of hurt.

(iv) with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married

(v) with her consent when, at the time of giving such consent, by reason of mental illness or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(vi) with or without her consent, when she is under eighteen years of age.

(vii) when she is unable to communicate consent.

The definition of consent however changes when it comes to a wife, as per the act.

"However, there is an Exception that is Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape"

In the judgement of Independent Thought vs Union of India, Supreme Court recognised that sexual act with wife of under 18 years as rape. The Supreme Court refrained from making any observations upon the subject of marital rape of woman of age 18 years and above as the said was not presented before the court, however the judgement was hailed a landmark stand in bid to stop child marriages.

Chhattisgarh High Court in the case of Dilip Pandey and ors v. State of Chhattisgarh discharged a man from facing trial for allegedly raping his wife, given that Indian law does not recognise marital rape if the wife is above 15 years of age. However, based on the charges levied and the charge sheet the individual was charged under Sec 377 of the IPC for unnatural sex, but not charged under Sec 375 due to being Husband and Wife.

The Kerala High Court in its judgement held that Marital Rape comes under crulety and stands as a ground to claim divorce, Although the law does not recognise marital rape under penal law, it does not inhibit the court from recognizing the same as a form of cruelty to grant divorce.

Government stand on Marital Rape:

In the past, during various debates in the parliament the act to recognize Marital Rape as a crime in India, has been unfavourable. In 2016, the government told the Rajya Sabha the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to factors such as illiteracy, poverty, social customs and values, religious beliefs and mindset of the society to treat marriage as a sacrament. In 2018, a private bill called the Women's Sexual, Reproductive and Menstrual Rights Bill, 2018 was introduced by MP Shashi Tharoor in the Lok Sabha, The bill proposed the deletion of exception 2 to Section 375 of the Indian Penal Code, which states that sexual intercourse by a man with his own wife is not rape. The bill lapsed after failure to garner support.

The Law Commission of India, in its 172nd Report, published in 2000, had opposed criminalising marital rape on the ground that it may amount to excessive interference with the marital relationship and refused to recommend the amendment of Section 375.

Violation of Constitutional Rights: The current rape laws, defeats the purpose to protect married women and violate their rights under Article 14 and Article 21 which grants equal protection and right to life, liberty and security of person.

Article 14, Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
Article 21 , No person shall be deprived of his life or personal liberty except according to a procedure established by law.”

With the change in times, it is high time that marital rape is recognized as a crime, to bring justice to the victims and ensure justice isn’t denied and rights of the individuals are protected.




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