#PuneSpeaks: Should Marital Rape Be Criminalised ?

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In our traditionally patriarchal society, gender bias and pre-natal sex determination are burning issues and to add to that cases of marital rape and domestic violence..

Contrary to what you may think, marital rape in India does not find mention in the Indian Penal Code and consequently does not get defined as a rape incident and crime.

*Legal Position on Marital Rape in India:

Marital rape is not an offence under the Indian Penal Code, 1860 (hereinafter referred to as “the IPC”). Section 375 of the IPC defines the offence of rape. Section 376 lays down the punishment for the same. Through the Criminal Law (Amendment) Act, 2013 which was brought about by the horrifying Delhi gang rape case, the ambit of the offence of rape has been widened and various Sections have been added to make laws against rape more comprehensive.

Sections 376A to 376E have been introduced for this purpose. Section 376B deals with sexual intercourse by husband upon his wife during separation. It states as follows –
“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.

Explanation.–In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of section 375.”

It is evident from the Section that it deals exclusively with sexual intercourse of the husband with the wife “who is living separately” without her consent. This section, therefore, does not apply to the offence of rape committed by the husband if the wife continues to reside with him. It is this exclusion that deprives marital rape of the legal recognition of an offence under the IPC. Even other criminal legislations fail to deal with the matter in an exhaustive manner.

The only remedy that a woman who is a victim of marital rape has under the IPC is under Section 498A which deals with husband or relative of husband of a woman subjecting her to cruelty. Under this Section, whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

However, the Domestic Violence Act, 2005 recognises marital rape or sexual violence as a form of domestic violence and a ground for grant of divorce.

The question is sub judice as various petitions are pending, both before the Supreme Court and before High Courts, seeking declaration of Section 375 of the IPC as unconstitutional on the ground that it discriminated against married women being sexually assaulted by their husbands.

While some activists on one hand, want criminalisation of marital rape stating that it forces women to suffer the worst at their houses, there have been various reported instances in which Section 498 A of the IPC ( punishment for the husband who subjects his wife to cruelty) has been misused.

The latest development on it came to light when the Centre submitted to Delhi High Court that criminalising marital rape “may destabilise the institution of marriage” and would become an easy instrument for harassing husbands.

“Marital rapes is defined as having sexual intercourse with the spouse without their consent. In this case, one partner faces the cruelty of the other,” says Deepa Mavinkurve, a practising lawyer in the city.

“But it is difficult to define or determine if a person has gone through it or not. Men can also sometimes be the victims of marital rapes and such cruelty. On the other hand, women can use it as a weapon to get divorced, claim alimony or just to harass the husband. It could be used as a tool against men similar to IPC Section 498 A.

“Therefore, It may not be sensible to criminalise marital rapes in India,” she adds.

Rucha Kumbhojkar, a law graduate feels the need to criminalise marital rape. “I believe having intercourse between two consenting adults is an expression of love. Hence, both the partners should give their consent for it.

“Just because she is the wife doesn’t mean that the men can treat her as a toy and play with her whenever and however they want to.

“Just because he is the husband forcing the women to have sexual intercourse doesn’t mean that it is not rape. But yes, the law should also make provisions to penalise those who file fake cases just to harass the partner. It is a very weak ground that marital rape cannot be criminalised as it can be misused.

“Then what about those women who go through it every day?,” she adds.

Palak Murarka, a city based teacher speaks about the grievances of those women who are from the slums, uneducated and work as house helps.

“In Indian villages and even some parts of the city, women are married to some random guy just to get rid of them.

“Because these women are uneducated, they do not know how to file a case against their husband even after going through harassment and forced sexual intercourse.

“Many even say that the reason of having too many children is also because their husbands force them to and they cannot afford to abort them.

“I get the fact that these laws can be misused, but what about these women who can only seek justice from the law makers.

“If a law is not made to protect them, women will be forced to commit suicide due to this mental and physical torture they face day after day” she adds.


*Legal Research & Inputs Courtesy : Krishna (BSL LLB)

#All views expressed in this article are the individual respondent’s and Pune365 does not necessarily subscribe to them.


Loveleen Kaur

Loveleen Kaur

A Dreamer, Traveler and All-time Foodie who is happiest in the company of Animals! loveleen@pune365.com
Loveleen Kaur