- 21-Dec-2024
- Family Law Guides
Marital rape, which refers to non-consensual sex between married partners, remains a significant legal and social issue in India. Under current Indian law, marital rape is not explicitly criminalized under the Indian Penal Code (IPC), but there are ongoing debates and discussions regarding its legal status. Here is an overview of how marital rape is treated under Indian law:
Section 375 – Definition of Rape: According to Section 375 of the Indian Penal Code, rape is defined as non-consensual sexual intercourse with a woman. However, an important exception to this section states that sexual intercourse by a man with his wife is not considered rape if she is above the age of 15 years. This provision essentially legalizes non-consensual intercourse within marriage, excluding it from the definition of rape.
Exception to Section 375: The IPC includes an exception to Section 375 that states a man cannot be charged with rape if he has sex with his wife, even without her consent, as long as she is above 15 years of age. This exception has been widely criticized for failing to protect married women from sexual violence in the form of marital rape.
Delhi High Court Ruling (2017): In a landmark judgment in 2017, the Delhi High Court ruled that the exception under Section 375 for married women above 15 years of age should be reconsidered. While the court acknowledged the challenges in recognizing marital rape, it directed the government to address the issue and consider amending the law.
Public Debate: There has been a continued public and judicial debate around whether the law should be amended to make marital rape a criminal offense. Various legal experts, women's rights activists, and organizations argue that marital rape is a form of domestic violence and should be treated as such under the law.
Violation of Fundamental Rights: Activists argue that the exception in Section 375 violates the constitutional rights of women, particularly the right to equality (Article 14), the right to life and personal liberty (Article 21), and the right to protection from sexual harassment (Article 19). According to them, treating marital rape differently from other forms of rape constitutes gender-based discrimination.
Supreme Court Consideration: The Supreme Court of India has not yet explicitly declared marital rape as criminal, but it has heard arguments challenging the constitutional validity of the exception to Section 375. The Court has been petitioned to strike down the exception and criminalize marital rape, which would align India with international standards of women's rights and sexual autonomy.
Lack of Specific Criminalization: Because marital rape is not criminalized in India, victims of marital rape cannot file rape charges under Section 375. However, women who experience sexual violence in marriage may seek legal remedies under other laws, such as the Protection of Women from Domestic Violence Act (PWDVA) 2005. This law provides for protection orders, residence orders, and compensation in cases of domestic violence, including sexual violence within marriage.
Domestic Violence Act: The PWDVA does not explicitly mention marital rape, but it recognizes sexual violence as a form of domestic violence, and women can file complaints under this Act. The Act can provide relief in terms of protection, financial support, and other remedies, although it does not criminalize the act of marital rape itself.
Punishment: Since marital rape is not specifically criminalized under the IPC, it does not attract punishment as rape does. In cases of domestic violence or cruelty, perpetrators can face imprisonment under Sections 498A (cruelty by husband or his relatives) or 304B (dowry death) of the IPC, depending on the circumstances.
Underreporting and Stigma: Marital rape is underreported in India due to social stigma, fear of shame, and the societal norm that views sexual relations within marriage as the husband’s right. This often leads to women suffering in silence, without seeking help or justice.
Call for Legal Reform: Women’s rights groups, activists, and legal experts continue to call for the criminalization of marital rape, pointing out that marriage should not be seen as a blanket permission for sexual intercourse, and consent should always be the central element in any sexual relationship.
A woman, married to her husband for 10 years, is repeatedly subjected to non-consensual sexual intercourse. Although she seeks help from law enforcement, marital rape is not recognized as a criminal offense due to the exception under Section 375 of the IPC. However, she may approach the police for relief under the Protection of Women from Domestic Violence Act, where she could receive protection orders and other support for abuse in marriage, but her case would not be prosecuted as rape.
Marital rape is not specifically criminalized under Indian law, and the exception under Section 375 of the IPC allows non-consensual sex within marriage if the wife is above 15 years of age. However, the issue remains contentious, with ongoing legal challenges and public debates surrounding the need for legal reform. Although women can seek protection under the Domestic Violence Act, the lack of criminalization means that marital rape does not receive the same legal treatment as other forms of sexual violence. Many argue that legal reform is essential to protect women's rights and ensure that marital rape is treated as a serious offense under Indian law.
Answer By Law4u Team
Discover clear and detailed answers to common questions about Family Law Guides. Learn about procedures and more in straightforward language.
