The debate over marital rape: What courts have said so far

The debate on marital rape in India has been going on for years. India is one of the 30 countries yet to criminalise the much-talked-about marital rape.

According to UN Women, one out of every three women across the world is subject to physical or sexual violence by an intimate partner. The pandemic has further exposed the fault lines of gender parity, with the lockdown periods witnessing a rise in the incidence of domestic violence.

The Supreme Court and various High Courts have in recent years taken strides to acknowledge gender discrimination in situations where the law thwarted deviation from traditional sex roles.

Also Read | Rape is rape, even when done by husband: Karnataka HC

Similarly, in a big move, Karnataka High Court, Wednesday said that sexual assault on a woman by her husband is nothing but rape, as it refused to quash proceedings against a man accused of raping his wife.

“A man is a man; an act is an act; rape is a rape, be it performed by a man, the ‘husband’, on the woman, ‘wife’, the court said.

There are varying opinions of different High courts on the cases of marital rape in the country, so what is the debate over marital rape?

Section 375 of the Indian Penal Code deals with rape and it criminalises the act, but it makes an ‘exception’. The exception says, “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

Also Read | Delhi HC refuses to grant more time to Centre to state stand on pleas to criminalise marital rape

Concerns over ‘false cases’

One of the main points to not criminalise marital rape is because of false cases that are filed against husbands across India by wives on the ground of cruelty. Criminalising marital rape could give wives a free pass to file false cases under Section 498-A to get their husbands arrested.

According to the IPC, rape carries a maximum punishment of life imprisonment and minimum punishment of 10 years.

Although there is currently no punishment for marital rape, there is a law that was passed in 2005 under the Protection of Women and Domestic Violence Act, which considers marital rape as a type of local violence. Under the Act, the woman can go to court and get a legal partition from her husband for marital rape.

Also Read | Intercourse in marriage can't be labelled rape, wife cannot seek specific punishment to satisfy ego: Delhi HC told

What have the courts said so far?

“Rape is rape, even when done by husband”: Karnataka HC, March 2022

The court noted that it is for the legislature to delve upon the issue of ‘marital rape’ by amending the provision of exception to husbands under IPC Section 375, with Justice Nagaprasanna terming the exception "regressive".

The bench said the Constitution treats women as equal to men and considers marriage as an association of equals. However, the IPC code discriminates, the court noted.

Also Read | 'It’s time to criminalise marital rape'

“Take a stand on marital rape”: Delhi HC to Centre

The Delhi High Court had granted two weeks to the Centre to state its stand on petitions seeking criminalisation of marital rape following Solicitor General Tushar Mehta's submission that the government is neither in favour nor against striking down the immunity granted to husbands under the Indian Penal Code.

The petitioners had challenged the Constitutionality of the marital rape exception under Section 375 IPC (rape) on the ground that it discriminated against married women who are sexually assaulted by their husbands.

“However brutal the husband is…”: SC, March 2021

The Supreme Court granted protection from arrest for eight weeks to a man, accused of raping a woman on the false pretext of marriage, and asked whether physical relationship between a couple who is living together as husband and wife could be called rape.

“If a couple is living together as husband and wife, the husband may be a brutal man but can you call the act of sexual intercourse between them as rape?” observed a bench headed by Chief Justice S A Bobde.

Also Read | Marital rape is rape, treat it as crime

“Sexual act between husband and wife, not rape: Chhattisgarh HC, August 2021

The Chhattisgarh High Court discharged a 37-year-old man in a rape case filed against him by his wife after observing that sexual intercourse or any sexual act with a legally wedded wife is not rape even if done by force or against her wish. However, the HC did not grant any relief to the man who was also charged under IPC section 377 (unnatural offences).

“Marital rape a disgraceful offence”: Gujarat HC, November 2017

The Gujarat High Court had condemned marital rape, calling it a ‘disgraceful offence’.

Justice JB Pardiwala had said, “Marital rape is in existence in India, a disgraceful offence that has scarred the trust and confidence in the institution of marriage. A large population of women has faced the brunt of the non-criminalisation of the practice.”

What has the government said?

In its 2017 affidavit, the Centre had opposed the pleas submitting that marital rape cannot be made a criminal offence as it could become a phenomenon that may destabilise the institution of marriage and an easy tool for harassing husbands.

However, the Centre told the court in January that it was "re-looking" at its earlier stand on the petitions as that was brought on record in the affidavit filed several years ago.

(With agency inputs)

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