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Marital Rape in India

Updated: Feb 6, 2022

Marital rape is forcing one's spouse to engage in sexual acts without their consent. It is recognized as a crime around the world in over 150 countries, Marital Rape isn’t recognized as a crime in India. Sec 375 of the Indian Penal Code defines Rape as against her will and without her consent. But under Exception 2 of Section 375, if sexual intercourse or sexual acts are by a man with his own wife, the wife not being under 15 years of age, it 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.

Currently, there is an ongoing hearing by Delhi High Court with regards to criminalisation of marital rape in India.

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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