Marital rape: India
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Contents
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Marital rape
The debate
Aarti Singh, Why some wives have pinned hopes on this HC verdict, March 11, 2018: The Times of India
It’s still legal to rape your wife in India, but not a live-in partner or separated spouse. A petition seeks to remove the legal immunity given to husbands
In Deepti Naval’s ‘Thoda Sa Aasmaan’ on Doordarshan, the female protagonist walks out on her husband who physically abuses and forces himself on her. That path-breaking show was made 23 years ago when the subject of marital rape was taboo. Reflecting the times, the woman in the tele-drama eventually returns to her husband after he apologises.
Indian women have come a long way since then. Though the law doesn’t criminalise marital rape, many are challenging the exemption that husbands get. Last year, a 25-year-old newly married Delhi woman sought help from an NGO after her family refused to rescue her from the husband who had raped her several times. “My family told me that it was alright for a husband to force himself on his wife but I believe marriage is not a licence to rape,” the survivor told TOI. She not only filed for divorce but refused to return to her parents’ house. A commerce graduate, she took up a job as an office assistant and lives in a shelter run by a self-help group.
Many other survivors of marital rape are now pinning their hopes of justice on the Delhi high court, which is hearing a petition filed by the RIT Foundation, a legal aid group, and All India Democratic Women’s Association (AIDWA), the women’s wing of CPM. The petitioners have sought removal of legal immunity granted to husbands from rape charges under exception 2 of section 375 of IPC. The petitioners are represented by noted lawyer Karuna Nundy and advocate Raghav Awasthi.
Marital rape, the lawyers claim, is more common than people think. According to a 2014 study by Research Institute for Compassionate Economics, the number of women who suffered sexual violence by husbands was 40 times more than non-intimate perpetrators.
The current laws “have caused millions of women to be legally raped,” points out Nundy. The exception, she argues, classifies rape victims in three different categories — married, married and separated, and unmarried. While unmarried women, those in live-in relationships and those legally separated can seek justice under the rape law, married women can’t. This, Nundy, argues violates a woman’s right to equality before law. “It also assumes non-retractable consent of women to sexual intercourse. Besides, it violates a woman’s physical integrity and autonomy that flows directly from the fundamental right to life,” says Nundy.
However, those who oppose criminalisation of marital rape argue the law will be misused. They also point out that there can be no real evidence whether a wife has been raped or not by her husband in a long-time sexual relationship. “Almost all laws are susceptible to misuse. But just because people are falsely accused of murder or financial crimes, no one seeks to de-criminalise murder or money laundering. Secondly, if a rape committed in a long or short-term live-in relationship is treated as rape under law, how is rape in marriage any different?”asks Awasthi.
Although marital rape can be punishable under 498A of IPC, which covers cruelty against women, Nundy says that it does not grant married victims the benefits of anonymity, medical care and legal aid, which are provided to rape victims otherwise.
Though the Justice Verma committee, in its 2013 report post Nirbhaya, had recommended criminalisation of marital rape, no political party, barring CPM, has supported it. In its opposition to the petition, the Union government has cited tradition and religious beliefs that treat marriage as a sacrament.
Marriage in India, Awasthi agrees, has been traditionally treated as a sacrament but he argues that nowhere do Hindu religious texts grant immunity to husbands for rape. “Our culture celebrates the exercise of choice by a woman in matters of selection of partner as well as sexual autonomy,” he says.
Many say that since marriage presumes consent for a sexual relationship, a law against marital rape will cause irreparable damage to the institution. “A law against marital rape will not destroy marriage; rape destroys marriage,” retorts Nundy. Now, it’s up to the courts to give wives the right to say no.
Legal precedents
August 27, 2021: The Times of India
Here are the legal options available to her, and how the courts look at the marital rape:
Under criminal law: Yes, there is an implied consent for sex, unless the wife is under 18 years of age, or living separately from the man.
Under civil law: Not really. Though it doesn’t use the expression ‘rape’ or ‘marital rape’ — ‘sexual abuse’ is one of the grounds available to a woman approaching a court against cruelty under the Protection of Women from Domestic Violence Act, 2005 (better known as the DV Act).
What the Kerala high court ruled
The court on July 30 dismissed the appeals filed by the husband against the judgment of a family court, allowing a petition for divorce on the ground of cruelty and dismissing another petition by the husband seeking restitution of conjugal rights.
“The case… depicts a story of the struggle of a woman within the clutches of law to give primacy of choice ‘not to suffer’ in the bondage of legal tie. An insatiable urge for wealth and sex of a husband had driven a woman to distress. In desperation for obtaining a divorce, she has forsaken and abandoned all her monetary claims. Her cry for divorce has been prolonged in the temple of justice for more than a decade (12 years),” the bench observed.
According to the wife, she was abused even during her pregnancy; that the man committed “forceful sex when she was sick and bedridden”; that she was subjected to the worst form of sexual perversion and unnatural sex against her will; that the man did not spare her for sex even on the day his mother had died; and that she was forced to have sex in front of their daughter. The HC bench pronounced her testimony before the family court as “unshaken” and observed that sex in married life was a reflection of the intimacy of the spouses.
What it means for criminalising marital rape
Even if the Kerala HC judgment has a binding effect within the state, it is not going to have an impact on the rest of the country as it does not strike down or amend a central law.
In July 2019, the Delhi high court had refused to entertain a public interest litigation by a lawyer seeking directions for the central government to add “marital rape” as a ground for divorce and guidelines for registration of cases relating to marital rape. The court cited the most common reason to reject such prayers — that a court cannot direct framing of laws as that falls under the legislature’s domain.
Had the court accepted that and eventually directed the central government to do so, it would have become applicable across the country. This PIL was filed in the Delhi high court after the Supreme Court declined to hear the petitioner and asked her to approach the high court.
Important SC views concerning women’s rights
A woman of ‘easy virtue’ is also entitled to privacy: In an October 1990 judgment, the SC recognised that even a woman of “easy virtue” can be entitled to privacy and no one had the right to invade that “as and when he likes”. The case before the court was not of rape, but of a police inspector from Bhiwandi — a town near Mumbai — challenging his removal from service after a departmental enquiry. The woman had made a complaint to the officer Madhukar Mardikar’s superiors and he had pleaded that he had gone to her place for a ‘prohibition raid’. After a detailed enquiry, Mardikar was removed from service, which he challenged before the Bombay high court. The HC ruled in his favour, resulting in the state government approaching the SC. “She is entitled to protect her person if there is an attempt to violate it against her wish. She is equally entitled to the protection of law. Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown overboard,” the SC had observed while overturning the Bombay HC judgment.
‘Promiscuous’ female can refuse to have an intercourse : In January 1996, a division bench of the Supreme Court, in a rape and abduction case in Punjab, had ruled that “even if the victim had been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone, because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone.” The case involved a minor who was abducted and gang-raped by three men over 18 hours. The court also expressed strong disapproval of the trial court's approach in casting a stigma on the victim's character which could discourage victims from coming ahead with complaints and thereby making "the society suffer by letting the criminal escape even a trial."
Right to make reproductive choices, privacy, dignity and bodily integrity: In a three-judge bench judgment in August 2009, the SC recognised all these rights at one go, while dealing with a case pertaining to medical termination of pregnancy of a mentally disabled woman. Interpreting sections of the Medical Termination of Pregnancy Act, 1971 pertaining to consent for termination of pregnancy, the bench observed, “There is no doubt that a woman’s right to make reproductive choices is also a dimension of 'personal liberty' as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating… The crucial consideration is that a woman's right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman's right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods.”
Adultery declared unconstitutional: In September 2018, a five-judge constitution bench of the SC struck down IPC Section 497 and a connected provision from the Criminal Procedure Code pertaining to adultery. The word “chattel” appears more than ten times in the judgment in the context of how the section treats a woman as a chattel of her husband, since adultery is not an offence if the husband has no problem with it. Though the section did not treat a woman as an accused, the man involved with someone else’s wife would become an accused only if the act was done “without the consent or connivance of that man (husband)”.
A Gujarat high court judgment: Justice JB Pardiwala, in an April 2018 judgment, quashed Sections 376 (rape) and 377 (unnatural sex) against a man in a case lodged by his wife, while letting Sections 498 (A) (cruelty against wife) remain intact and added Section 354 (molestation) to the case. The court, however, made various remarks against non-criminalisation of marital rape and directed that a copy of the judgment be sent to the Law Commission as well and Union ministry of legal affairs. The judge observed: “A law that does not give married and unmarried women equal protection creates conditions that lead to the marital rape... Women should not have to tolerate rape and violence in the marriage. The total statutory abolition of the marital rape exemption is the first necessary step in teaching societies that dehumanised treatment of women will not be tolerated and that the marital rape is not a husband's privilege, but rather a violent act and an injustice that must be criminalised.”
What the Verma Committee recommended
The Verma Committee, which was constituted in the wake of the 2012 Delhi gang rape case, had, in a fairly strongly worded recommendation stated that the exception be done away with. This was not accepted by the government of the day.
After discussing how the concept of marital exception to rape law was archaic in its origin — and had been given up by majority of the countries worldwide — the committee recommended that the exception be removed. The committee stated: “The relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity. The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.” Adding: “The exemption for marital rape stems from a long-outdated notion of marriage which regarded wives as no more than the property of their husbands. According to the common law of coverture, a wife was deemed to have consented at the time of the marriage to have intercourse with her husband at his whim. Moreover, this consent could not be revoked. As far back as 1736, Sir Matthew Hale declared: ‘The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract’”.
It also spoke about how a majority of countries had given up on the idea and criminalised the act. It needs to be mentioned here that India is only among 36 countries in the world which haven’t criminalised marital rape.
Countries like United States of America, United Kingdom, Canada, South Africa and Australia too criminalised marital rape in the 1980s and 1990s.
Where the law stands on the issue of marital rape Marital rape — the only “exception” to rape law in the Indian Penal Code — has managed to remain in the book despite various amendments, which originally came into force in 1860 during the British Raj.
The section reads: “Exception 2. — Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape.”
Amendment to criminal laws post the December 2012 gang rape added a sub-section to the rape laws pertaining to a wife. It reads: “376B. Sexual intercourse by husband upon his wife during separation. — Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.
The second half of the exception (375 Exception 2) was read down by a division bench of the Supreme Court in October 2017, to make it “under 18 years” instead of “under 15 years.” Which means a woman aged below 18 (and not 15) can file a complaint of rape even against her husband.
Section 3 of the DV Act, 2005 defines what constitutes as domestic violence and sub-section (a) says: harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse. An explanation to the sub-sections defines ‘sexual abuse’ as any conduct of sexual nature that abuses, humiliates, degrades or otherwise “violates the dignity of woman.”
Arguments supporting for it
Women’s rights activists have been arguing for removing the only exemption in rape laws and criminalising marital rape for years now. One such petition, filed by RIT Foundation in 2015, is still pending, and is likely to come up for a detailed hearing any time later this year — in all likelihood, depending on the opening up of courts due to the pandemic. As of now, this is the only ray of hope for activists, as successive governments have so far said no to their demands. The All India Democratic Women’s Association, too, has joined the cause, with a petition of its own, but the cases have been clubbed by the Delhi HC, while Men Welfare Trust is opposing the petitions.
Activists and petitioners seeking to criminalise the act have been making multi-fold arguments — primarily, that it is against the Constitution.
Article 14 and Article 21 have been cited to say that not removing the marital exception to rape laws violates these two articles. Article 14 stands for ‘equality before law’ — therefore section 375 Exception 2 creates differential treatment for one class of people i.e. women, on the basis of their marital status. While an unmarried woman can file a complaint irrespective of who the accused is, a married woman can’t do so.
Article 21 stands for ‘right to life’ and Supreme Court pronouncements have read various other rights into this article, like the right to live with dignity; the right to live with safe living conditions and safe environment; the right to make reproductive choices; and most recently, the right to privacy. The word ‘privacy’ features repeatedly in the recent Kerala HC judgment as well.
Arguments against it
The Law Commission of India’s March 2000 report, known as the 172nd Report, had rejected NGO Sakshi’s move to remove the exception in the law, citing “excessive interference with the marital relationship”.
“Representatives of Sakshi wanted us to recommend the deletion of the exception, with which we are unable to agree. Their [Sakshi’s] reasoning runs thus: Where a husband causes some physical injury to his wife, he is punishable under the appropriate offence and the fact that he is the husband of the victim is not an extenuating circumstance recognised by law; if so, there is no reason why concession should be made in the matter of offence of rape/sexual assault where the wife happens to be above 15/16 years. We are not satisfied that this Exception should be recommended to be deleted since that may amount to excessive interference with the marital relationship.”
Sakshi had also sought that the Commission recommend deletion of Section 376A as it then stood in IPC. This section criminalised sexual assault of a husband on his wife living separately without her consent, but, provided for a sentence of maximum of two years and fine. The punishment provided for other rape offences was, however, a minimum of seven years with fine. The Commission, however, recommended increasing the sentence to “two to seven years with fine.”
The Commission stated: “While we appreciate the force of said argument in the context of the wife who is living separately under a decree of separation or under any custom or usage, we cannot at the same time ignore the fact that even in such a case the bond of marriage remains unsevered. In the circumstances, while recommending that this section should be retained on the statute book, we recommend enhancement of punishment under the section.
This was implemented only after the Justice Verma Committee made its recommendations, including this one, after the December 2012 gang-rape case.
The government’s response before Delhi HC
The Union government had filed a reply in the RIT Foundation petition, which is still pending adjudication before the Delhi HC, opposing the plea. The reply said that defining marital rape would call for a broad based consensus of the society. Another interesting point mentioned was that “what may appear to be marital rape to an individual wife, may not appear so to others” and what would constitute as marital rape and what would constitute “marital non-rape” needs to be defined precisely.
It added that it has to be “ensured adequately” that marital rape does not become a phenomenon which “may destabilise the institution of marriage apart from being an easy tool for harassing husbands”. It also questioned as to what evidence a court would rely upon “as there can be no lasting evidence in case of sexual acts between a man and his own wife.”
“The fact that other countries, mostly Western, have criminalised marital rape does not mean India should also follow them blindly. This country has its own unique problems due to various factors like literacy, lack of financial empowerment of the majority of females, mindset of the society, vast diversity, poverty etc and these should be considered carefully,” the reply reads. It also cited “misuse” of IPC section 498A (cruelty case by a woman against her husband and in-laws) as one of the factors, which is noted to some extent in a Supreme Court judgment of 2015.
What the Men Welfare Trust believes
A detailed response filed by the trust also cites misuse of various laws like harassment, domestic violence, rape and molestation to oppose RIT Foundation’s petition. It says that once the woman consents to a marriage, then by definition of marriage, the couple make a conscious decision to keep sexual relations with each other and that a man and the woman lose their right to have sex with anyone outside that relationship. It argues that if there is any breach of this understanding between the man and the wife, other legal recourse should be made available to the spouse instead of branding the husband as a rapist.
The reply also attributes over 60,000 suicides committed by men every year to the false cases filed by women, saying that the stigma attached with such allegations end up ruining families and remedies available under other civil and criminal laws are effective enough. They also argue that Western countries have gender neutral laws, which is not the case in our country.
‘Can't criminalize marital rape’: Govt.
The Times of India, Apr 30 2015
Can't criminalize marital rape as marriage sacred in India: Govt
Amid raging debate over the demand to criminalize marital rape, the government on Wednesday told Parliament there is no proposal to make it a criminal offence as the concept cannot be applied in the country where marriage is treated as a `sacrament or sacred'.
“It is considered that the concept of marital rape, as understood internationally , cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of he society to treat the mar riage as a sacrament,“ minister of state for home affairs Haribhai Parathibhai Chaud hary said in a written reply in Rajya Sabha.
The minister's reply came in reponse to a question by DMK's Kanimozhi who asked he home ministry whether the government will bring a bill to amend the Indian Penal Code to remove the exception of marital rape from the definition of rape; and whether UN Committee on Elimination of Discrimination Against Women had recommended to India to criminalize marital rape.
She cited a UN report that says 75% of married women in India were subjected to marital rape and asked whether the government had taken cognizance of it.
Chaudhary replied that the MEA and ministry of women and child development have reported that the UN panel has recommended to criminalize marital rape.
Forcing wife into oral sex is violence, not rape: Guj to HC
December 2, 2017: The Times of India
The state government has submitted before the Gujarat high court that forcing a wife to perform oral sex invites charges of domestic violence and not of rape and unnatural sex.
The high court has formulated three questions whether the act amounts to unnatural sex punishable under Section 377 of IPC, rape under Section 376 and mental and physical cruelty in matrimonial life under Section 498A.
The high court strongly condemned marital rape, but decided to answer the question as to which section of the Indian Penal Code is attracted for forcible oral sex.
In response to the high court’s query, the state government cited various authorities and submitted that there is an exception in the definition of rape for a married couple and hence charges of rape are not attracted in forcible oral sex with a wife.
The government further submitted that since there is no question of rape, there is also no possibility that such an act attracts charges under unnatural sex.
However, the government stated that the gesture by a husband to force a wife to perform oral sex without her consent is definitely an act of cruelty and hence attracts charges under Section 498A of IPC.
On the other hand, the woman’s advocate Rajesh Shah insisted that since the man forced his wife to indulge in oral sex without her consent, it is nothing but rape, unnatural sex and domestic violence.
He also opposed the petition filed by the man for quashing of the FIR lodged by his wife.
After the submissions by both sides were over, Justice J B Pardiwala reserved his judgment on the issue.
The case involves a doctor couple in Sabarkantha district. The woman in question had filed a complaint stating that her husband forced her to perform ‘unnatural sex’. She had also taken up the issue before her community elders, but people laughed at her.
Court judgements
HC: Non-consensual sex with wife not rape
April 3, 2018: The Times of India
The Gujarat high court ruled that a wife cannot charge her husband with marital rape even if the man has sex with her without her consent if she is above 18 years of age.
Justice J B Pardiwala observed that the offence of rape by a husband is not an offence punishable under IPC Section 375, which defines rape. While making this observation, the judge lamented the position of a law which does not enable a woman to prosecute her husband for rape and called for legal provisions so that a woman could protect her body the way she has been enabled to protect her other rights.
The HC quoted, in great detail, legal provisions existing across in countries the world on marital rape and observed that the legislature must criminalise the offence. He said the mere apprehension of its misuse by “unscrupulous” women shou- ld not be a deterrent to enacting legislation to protect women battered by marital rape, which is rampant in India.
The HC made these observations in a case involving a Sabarkantha-based doctor couple. The wife had accused her husband in August last year of forcing her to have sex, including oral sex, without her consent. The HC said a wife can initiate criminal proceedings against her husband for unnatural sex under IPC Section 377. Consent is not a determining criterion in such a case.
The HC added that forcing a wife to have sex would attract the charge of outraging the modesty of woman under IPC Sec 354 and ordered cops to probe the case in this direction. It also ruled that a husband forcing his wife to have sex amounts to cruelty and the husband is liable to be punished under IPC Sec 498A.
Chhattisgarh high court
August 27, 2021: The Times of India
Sexual intercourse or sexual act by a man with his wife, who is not under 18 years of age, is “not rape even if it is by force or against her wish,” observed the Chhattisgarh high court while discharging a man of rape charges.
The complainant alleged that her husband had made “unnatural physical relation” with her several times. In her police complaint, the woman also accused her husband and two of his relatives of harassing her for dowry within days of marriage.
On January 22 this year, the Bemetara additional sessions judge ordered framing of charges under IPC Sections 376 (rape), 498A (dowry harassment), 377 (unnatural offence) against the husband. TNN
Charges under Sec 377 upheld against husband
The judge also ordered framing of charges under IPC section 498-A against his two relatives.
When the accused moved high court, Justice NK Chandravanshi passed his verdict on August 23, upholding the other charges but discharging the husband of rape charge. “The complainant is the legally wedded wife… therefore, sexual intercourse or any sexual act with her by the husband would not constitute an offence of rape, even if it was by force or against her wish,” the order said, adding that framing of charge under section 376 of IPC is thus “erroneous and illegal”.
The court, however, upheld charges against the husband under section 377 IPC, observing that if the “dominant intention of the offender is to derive sexual satisfaction in an unnatural way”, it would attract the relevant section of IPC that deals with unnatural offence.
Allahabad High Court
Rajesh Kumar Pandey, Dec 15, 2023: The Times of India
PRAYAGRAJ: Observing that marital rape cannot be considered an offence if the wife is above 18 years of age, the Allahabad high court acquitted a person accused of committing an "unnatural offence" against his wife. "Protection of a person from marital rape continues in cases where his wife is of 18 years of age or more than that," the court said, adding that marital rape has not been criminalised in the country as yet.
In support of its stand, the court also clarified that as per the judgment in the case of Independent Thought vs Union of India (2017), the Supreme Court has held that any sexual intercourse between a man and his wife, aged between 15 and 18 years, would amount to rape.
However, while acquitting the accused husband of the charge under IPC Sec 377 (voluntary carnal intercourse against the order of nature with man, woman or animal), the court affirmed his conviction and sentence under IPC Sec 498A for harassment for dowry and cruelty and 323 (voluntarily causing hurt).
While partly allowing a revision petition filed by one Sanjeev Gupta, the accused husband, Justice Ram Manohar Narayan Mishra noted that in the proposed Bhartiya Nyay Sanhita, which is likely to replace the Indian Penal Code, there is no provision for anything like IPC 377.
While making these observations, the court also endorsed the view taken by the Madhya Pradesh high court recently wherein it was stated that after the 2013 amendment to the definition of IPC Section 375 (rape), there is no place for any unnatural offence (as per IPC Sec 377) to occur between a husband and wife.
In its order, the MP HC had opined that when IPC Sec 375 (as amended by the 2013 Amendment Act) includes all possible parts of penetration of the penis by a husband into his wife, and when consent for such an act is immaterial, then there is no scope for the offence of IPC Sec 377 to be attracted where a husband and wife are involved in sexual acts.
The FIR in this case was lodged in 2013 against one Sanjeev Gupta by his wife under various IPC sections and also under the Dowry Prohibition Act in Ghaziabad. However, after trial, the trial court in Ghaziabad convicted him under the aforesaid sections. In the appeal, the appellate court also upheld the findings of the trial court.
Hence, he filed the present revision petition before the high court. Against this backdrop, the court noted that there was no factual or legal error in the finding of guilt recorded by the appellate court as regards charges under IPC Secs 323 and 498-A.
However, regarding the conviction under Sec 377, the court opined that marital rape has not been criminalised in this country as yet. However, the court did note that certain petitions are pending for consideration before the Supreme Court seeking criminalising marital rape, but till any decision comes on those petitions there is no criminal penalty for marital rape when the wife is of or above 18 years of age.
Besides noting that the medical evidence in the case was not supportive of allegations of commission of unnatural sex, the court, in this judgment dated December 6, said that in the proposed Bhartiya Nyay Sanhita, which is likely to replace IPC, no provision like IPC Sec 377 is included.
Nor is anal sex: Madhya Pradesh HC/ 2024
Ashutosh Shukla, May 4, 2024: The Times of India
Bhopal: Observing that marital rape is not an offence under Indian Penal Code (IPC), Madhya Pradesh HC has ruled that unnatural sex with wife is not rape, and her consent is immaterial in such cases.
Justice G S Ahluwalia made the observation while quashing an FIR registered by an estranged wife against her husband under IPC sections 377 (unnatural sex) and 506 (criminal intimidation). In his May 1 order, the judge referred to several judgments of SC and HCs, and the definition of rape under section 375 of IPC, and stated that a husband engaging in anal sex with his wife did not amount to rape, even if it were non-consensual, as long as the wife was not below 15 years of age.
According to the husband’s petition, the couple got married in May 2019, but the wife has been living at her parental house since Feb 2020. She filed a case of dowry harassment against her husband and in-laws, which is pending in court. In July 2022, the wife lodged another FIR accusing him of unnatural sex.
“The only question for consideration is whether a husband during the subsistence of marriage while residing together can be said to be guilty of marital rape...,” Justice Ahluwalia said.
Marital ties may shield spouse from rape charge: Delhi HC
Abhinav Garg, January 11, 2022: The Times of India
NEW DELHI: The protection given to husbands from being booked for rape under the IPC may have to do with the “qualitative difference” between marital and non-marital relationships, the Delhi high court said.
In preliminary remarks, Justice C Hari Shankar, as part of a division bench, tested claims and submissions made by a batch of petitions seeking to criminalise sex without consent in a marriage as ‘marital rape’.
The court said while there can be no compromise with women’s right to sexual autonomy and any act of rape has to be punished, the “qualitative difference” is that in a marriage, unlike a live-in or a relationship, a spouse has an expectation and “to an extent a legal right” to establish conjugal/sexual relations with the partner.
“That qualitative difference has a part to play in why that exception is there... we must appreciate the reason why it remains on the statute books despite the Verma Commission and Law Commission. For 150 years, the legislature has kept it,” Justice Shankar said, underlining that petitioners have to show pressing reasons why HC should strike down a provision.
Adding a rider that these are not his firmed up views but only preliminary line of inquiry, Justice Shankar said one reason for Parliament keeping the exception intact might be the manner in which rape as an offence is defined in Section 375. “It is a wide definition, it says even a single instance of unwilling sex with unwilling party is rape,” he said.
“Let’s take a newly married couple. On a particular day, wife says no... If for third day it happens, the husband says ‘am walking out’ but wife gives in. Do we categorise it as rape? He is exercising what he believes to be his conjugal right. It is rape if we knock off the exception,” the court said.
“There is no compromise with a woman’s right to sexual and bodily integrity. A husband has no business to compel. (But) the court can’t ignore what happens if we strike down the exception. The husband goes to jail for 10 years if he does this even on one occasion… We need a much more incisive insight into the issue,” the judge said.
Justice Shankar also expressed his reservations with use of the term “marital rape”, saying that calling it rape to define any form of an unwilling sexual relationship between a husband and a wife is “a kind of pre-decision”.
“There is no (concept of) marital rape in India… If it is rape — marital, non-marital or any kind, it has to be punished. Repeated use of the word, according to me, obfuscates the actual issue,” he said.
The bench headed by Justice Rajiv Shakdher — who stated he would “reserve” his “comment” and clarified the court was just having an open discussion — was hearing PILs filed by NGOs RIT Foundation and All India Democratic Women’s Association.
Rape is rape even if perpetrated by husband: Karnataka HC, 2022
Vasantha Kumar, March 24, 2022: The Times of India
Bengaluru: An act of sexual assault on the wife, albeit by the husband, cannot but be termed a rape, the Karnataka high court observed. “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, the ‘wife’,” Justice M Nagaprasanna held while while refusing to interfere with the proceedings initiated against the accused husband vis-a-vis charges of rape, cruelty, criminal intimidation and also offences under Section 29 and 30 of Pocso Act in connection with alleged sexual acts committed against his daughter.
Holding that marriage is not a licence to unleash beastiality, the court also said that law should be amended so as to remove the exemption granted to a husband under Section 375 of IPC.
“The institution of marriage does not confer, cannot confer and in my considered view, should not be construed to confer any special male privilege or a licence for the unleashing of a brutal beast,” Justice Nagaprasanna said, while negating the submission that the husband is protected by the institution of marriage for any of his acts being performed, as is performed by a common man.
“If it is punishable to a man, it should be punishable to a man, albeit him being a husband,” the judge said.
The court was hearing mulitple petitions by the husband and the wife. The husband had challenged the proceedings against him after his wife lodged a police complaint, accusing him of sexually and mentally torturing her and their child.
“Such sexual assault by a husband on his wife will have grave consequences on the mental state of the wife, it has both psychological and physiological impact on her. Such acts of husbands scar the soul of wives. It is, therefore, imperative for lawmakers to now hear the ‘voices of silence’,” Justice Nagaprasanna noted in his order.
B: Gujarat HC/ 2023
Dec 19, 2023: The Times of India
HC: Rape is rape, even if committed by husband
TIMES NEWS NETWORK
Ahmedabad : The Gujarat High Court has firmly asserted that “rape is rape” even if committed by a husband on his wife, while rejecting a bail application filed by a woman accused of complicity in her daughter-in-law’s case of rape and domestic violence against her husband and in-laws.
The complainant, married in Rajkot last year, alleged that her husband and in-laws recorded their intimate moments using a bedroom CCTV camera to generate income. She also claimed that the husband filmed their intimate acts on his mobile phone, circulating the videos on the family WhatsApp group and selling them to a pornographic website. An FIR was filed in August, leading to the arrest of her husband and in-laws. The mother-in-law sought bail from the high court, a plea denied by Justice DA Joshi, who insisted that she face trial.
Responding to the argument that rape by a husband is exempt under the IPC, the judge referred to the stand adopted by 50 American states, Australia, New Zealand, Canada, and other European countries, where marital rape is deemed illegal.
“A man is a man; an act is an act; rape is rape, be it performed by a man, the ‘husband’, on the woman, ‘wife’,” Justice Joshi said, while explaining that a man raping a woman is liable for punishment under section 376 of IPC. The HC emphasised the impact of offensive behaviour on women, creating an environment that silences survivors and undermines their dignity and self-worth. It noted that gender violence often remains unseen, hidden in a culture of silence, and discussed the high cost for women in a male-dominated society to report sexual violence. “This silence needs to be broken. In doing so, men, perhaps more than women, have a duty and role to play in averting and combating violence against women,” the court said.
Delhi HC delivers split verdict on marital rape
Abhinav Garg, May 12, 2022: The Times of India
New Delhi: The proviso that shields husbands from a rape charge by wives will remain in the IPC for now as the Delhi high court gave a split verdict on petitions challenging the clause.
A bench of Justices Rajiv Shakdher and C Hari Shankar differed in their reading of the exception under section 375 IPC and allowed the parties to approach the Supreme Court for a final say on the matter saying it involved substantial questions of law, which required a decision by the top court.
The HC’s split verdict came on PILs filed in 2015 and 2017 by NGOs RIT Foundation, All India Democratic Women’s Association, a man and a woman seeking striking down of the exception granted to husbands under the Indian rape law.
Later two NGOs — Men Welfare Trust (MWT) and Hridey — joined the proceedings opposing the batch of petitions seeking criminalisation of marital rape.
The lawyers for both the petitioners and the intervenors said they will move the SC. “Yes. I will be moving the Supreme Court on Monday,” senior advocate Colin Gonsalves, representing one of the petitioners, told TOI. Meanwhile, advocate Raj Kapoor, who had appeared for an NGO, Hridey, in opposition to the petitions, said they will go to the Supreme Court within a week to appeal. The two judges penned separate lengthy opinions of a combined 393 pages, tracing the history of the colonial era provision, the reason for its continuance and why it must go (Justice Shakdher) or remain (Justice Shankar).
Shakdher, who headed the bench, favoured striking down the marital rape exception for being "unconstitutional" and for being “steeped in patriarchy and misogyny. ”
2022: SC mentions the concept of marital rape
Amit Anand Choudhary, Sep 30, 2022: The Times of India
NEW DELHI: In an important verdict reinforcing bodily and decisional autonomy of the pregnant woman, the Supreme Court, also for the first time, recognised marital rape for the purpose of unwanted pregnancy for abortion and held that rape under Medical Termination of Pregnancy Act includes a husband’s act of sexual assault or rape committed on his wife.
Though the protection given to marital rape under penal provision for rape in Indian Penal Code is under challenge in Supreme Court and is pending, today's verdict recognised it under as far its application in civil law like MTP Act. A bench of Justices D Y Chandrachud, A S Bopanna, J B Pardiwala said that it is not inconceivable that married women become pregnant as a result of their husbands having “raped” them which could be a ground for abortion of unwanted pregnancy.
"Married women may also form part of the class of survivors of sexual assault or rape. The ordinary meaning of the word ‘rape’ is sexual intercourse with a person, without their consent or against their will, regardless of whether such forced intercourse occurs in the context of matrimony. A woman may become pregnant as a result of non-consensual sexual intercourse performed upon her by her husband. We would be remiss in not recognizing that intimate partner violence is a reality and can take the form of rape," Justice Chandrachud, who penned the verdict for the bench, said.
"The misconception that strangers are exclusively or almost exclusively responsible for sex- and gender-based violence is a deeply regrettable one. Sex- and gender-based violence (in all its forms) within the context of the family has long formed a part of the lived experiences of scores of women," the bench said.
The court said that MTR Act and IPC are applicable in different speheres and understanding “rape” under the MTP Act as including marital rape did not have the effect of striking down Exception 2 to Section 375 on offence of rape whose validity is to be decided by another bench.
"It is not inconceivable that married women become pregnant as a result of their husbands having “raped” them. The nature of sexual violence and the contours of consent do not undergo a transformation when one decides to marry. The institution of marriage does not influence the answer to the question of whether a woman has consented to sexual relations. If the woman is in an abusive relationship, she may face great difficulty in accessing medical resources or consulting doctors," it said.
"Notwithstanding Exception 2 to Section 375 of the IPC, the meaning of the words “sexual assault” or “rape” in Rule 3B(a) includes a husband’s act of sexual assault or rape committed on his wife. The meaning of rape must therefore be understood as including marital rape, solely for the purposes of the MTP Act and any rules and regulations framed thereunder. Any other interpretation would have the effect of compelling a woman to give birth to and raise a child with a partner who inflicts mental and physical harm upon her," the bench said.
The court also held that in case of pregnancy arising out of sexual assault it was not necessary that the offender be convicted or criminal case be registered before the pregnant woman can access an abortion, After a split verdict by Delhi High Court on whether marital rape could be brought within the ambit of offence of rape which at present is exempted, the Supreme Court decided to examine the issue and sought response from the Centre.
A bench of justices Rajiv Shakdher and C Hari Shankar of the HC differed in their reading of the exception under section 375 IPC that shields husbands from a rape charge by wives.
Justice Shakdher, who headed the division bench , had favoured striking down the marital rape exception and said it would be tragic if a married woman's call for justice is not heard even after 162 years since the enactment of the Indian Penal Code (IPC). But Justice Shankar, had said the exception under the rape law is not unconstitutional and was based on an intelligible differentia having a rational nexus with the object of the exception as well as section 375 (rape) of the IPC itself.
As the High Court had allowed the parties to approach the Supreme Court for a final say on the matter saying it involved substantial questions of law which required a decision by the top court, the PIL petitioners filed appeal in the apex court.
The HC’s split verdict came on PILs filed in 2015 and 2017 by NGOs RIT Foundation, All India Democratic Women’s Association, a man and a woman seeking striking down of the exception granted to husbands under the Indian rape law. Later two NGOs — Men Welfare Trust (MWT) and Hridey — joined the proceedings opposing the batch of petitions seeking criminalisation of marital rape.
Agreeing to hear their plea, the apex court issued notice on petitions challenging Exception 2 to Section 375 which provides that charges of rape cannot be attracted against a man who has non-consensual sex with his wife. The bench said that similar matter was also pending in the court and posted the case for February for hearing.
The position in other countries
As in 2022
What is marital rape?
Sexual intercourse between marital partners - without the explicit consent of both parties - is considered marital rape. In general, though, the term is popularly used to refer to sexual intercourse or acts committed by the husband on the wife without her consent.
It is also a form of sexual assault, which is defined by the World Health Organisation as "any sexual act, attempt to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic, or otherwise directed, against a person’s sexuality using coercion, by any person regardless of their relationship to the victim, in any setting, including but not limited to home and work”.
In many countries, this is a punishable offence. However, as of 2021, as many as 32 countries have decriminalised marital rape.
Besides India, this list includes Bangladesh, China, Haiti, Laos, Mali, Myanmar, Senegal, Afghanistan, Tajikistan, Lebanon, Malaysia, Singapore, Egypt, Libya, Oman, Yemen and Kuwait.
Here is a look at some of the countries and their stands on the issue:
Pakistan
In Pakistan, the legal situation regarding marital rape is unclear. In 1979, Pakistani law defined rape as 'forced sex outside of marriage'. However, in 2006, it was redefined as sex without the woman's consent after the then government introduced a bill to protect women from sexual violence. As it stands now, the definition potentially makes marital rape a crime. However, it does not specify this and so the penal code remains ambiguous. It has been argued that the bill did intend to include marital rape as an offence.
China
Under current laws, marital rape is neither a criminal nor civil offence. However, in November last year, a man was sentenced to eight months for having 'coercive sex' with his wife.
United States
Marital rape was criminalised in all 50 states in 1993 but legislations vary from state to state.
United Kingdom
Also known as spousal rape, it has been criminalised under the Sexual Offences Act of 2003 and those found guilty can be sentenced to life in prison.
South Africa
Marital rape has been illegal since 1993 under Article 5 of the Prevention of Family Violence Act.
Nigeria
Marital rape is explicitly excluded from criminal law. The Northern Nigeria Penal Code - applicable in the southern part of the country as well - states categorically that a man cannot be held to have committed the crime of raping his wife no matter the circumstances under which he had sex.
Russia
Marital rape is illegal and is covered under the general provisions of an act against sexual violence by including the spouse as a relative. Russia was one of the first countries to remove 'marital exemption' in laws on violence against women laws - this was back in 1922.
Germany
Spousal rape was only outlawed in 1997 - later than many other developed nations - after female ministers and women's rights activists lobbied for over 25 years.
France
Marital rape is explicitly outlawed and the government is seen as enforcing the law effectively.
Saudi Arabia
Rape is a criminal offence under Sharia law, but spousal or marital rape is not recognised as a crime.
United Arab Emirates
The penal code of the UAE does not address spousal rape as a crime. In a rare event in 2017, the Dubai court sentenced a policeman to six months for raping his to-be bride. During the hearing, the defendant had argued that he considered both of them married at the time of the offence.
Israel
In 1980, the Israeli Supreme Court affirmed that marital rape is a crime, citing law based on the Talmud, the central text of Rabbinic Judaism and the primary source of Jewish religious law.
Canada
Articles 271 & 278 of the Criminal Code criminalise rape of men or women, including spousal rape, as sexual assault.
