How Is Spousal Rape Treated Under Domestic Violence Laws in India?

In India, spousal rape, or marital rape, remains a highly controversial and complex issue under the current legal framework. While domestic violence laws offer some protection to victims of marital abuse, marital rape itself is not explicitly recognized as a criminal offense under Indian law.

Legal Treatment of Spousal Rape

Indian Penal Code (IPC):

The IPC does not classify marital rape as a specific crime. Section 375 of the IPC, which defines rape, exempts sexual intercourse between a husband and wife if the wife is above 15 years old. This creates a legal gap, as the law does not treat forced sex within marriage as rape.

However, a bill to amend the IPC has been proposed several times to criminalize marital rape, but it has not yet been passed.

Protection of Women from Domestic Violence Act (PWDVA), 2005:

The PWDVA is a significant law that provides protection to women against domestic violence, which includes physical, emotional, economic, and sexual abuse. While sexual abuse within marriage is covered, the Act does not specifically define or criminalize marital rape. It offers legal remedies like protection orders, residence orders, and monetary relief to victims of domestic violence, including spousal abuse.

Judicial Interpretation:

Some judicial interventions have recognized spousal rape in limited contexts, particularly when the wife is under 18 years of age, making sexual intercourse with her a statutory rape under the IPC.

Additionally, courts have acknowledged that sexual violence in marriage can amount to domestic violence under PWDVA, allowing victims to seek redress.

Challenges:

The primary challenge in addressing spousal rape under Indian law is the legal immunity granted to husbands in cases of forced sex with their wives, creating a legal barrier for victims.

Cultural attitudes also play a significant role, with many people believing that rape within marriage is not possible or is an extension of marital rights.

Example

Suppose a woman experiences repeated sexual assault by her husband within their marriage. If she is over 15 years old, the act will not be considered rape under the IPC due to the existing marital rape exemption. However, she can still seek protection under the Protection of Women from Domestic Violence Act (PWDVA), where the violence includes sexual abuse, and request relief such as a protection order or temporary residence.

Conclusion

While domestic violence laws in India offer some protection to victims of marital abuse, marital rape itself remains largely unaddressed under current legal provisions. There is an ongoing debate in India regarding the need to criminalize spousal rape, with some activists and lawmakers pushing for amendments to the IPC to ensure that all forms of sexual violence, including within marriage, are properly recognized and penalized.