What is marital rape and why is it still not a crime in India?

The Delhi High Court delivered a split verdict on criminalisation of marital rape on Wednesday. 

The debate over marital rape has been going on for years now. Marital rape is the act of sexual intercourse with one’s spouse without consent. 

As per UN Population Fund, more than two-thirds of married women in India aged between 15 and 49, have been beaten or forced to provide sex, regardless of their socio-economic positions, according to Deccan Herald. 

Also Read: Disappointing, upsetting: Activists react to Delhi HC verdict on marital rape criminalisation

While the figures are scary, this has not necessarily translated into legislation to protect these women. In fact, India is one among the 30 countries that is yet to criminalise marital rape. More than 104 nations across the world have criminalised the act. 

Section 375 of the Indian Penal Code 1860 states that sexual acts by a man on a woman against her free will or consent would constitute rape. However, there are two exceptions to this. The first exception says that “a medical procedure or intervention shall not constitute rape”.  

The second exception: “sexual intercourse or sexual acts by a man with his own wife” when the wife is above 18 years of age would not constitute rape. 

Apart from the exception , it is also about the mindset. In 2016, then Minister for Women and Child Development Maneka Gandhi she said India is not ready to criminalise marital rape because it cannot be defined under the same parameters “as understood internationally”. 

She said that the concept of marital rape “cannot be suitably applied in the Indian context”. The minister cited “illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc.,” as reasons behind the Centre’s refusal to criminalise marital sex. 

In 2019, 

former Chief Justice of India Dipak Misra said that marital rape should not be made a crime in India, “because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values.”

In fact, the Centre has even gone on to say that ” various other countries, mostly Western, have criminalised marital rape but it does not necessarily mean India should also follow them blindly.”

The other argument that has been made against criminalising the act is the false cases that are filed against husbands across India by wives on the ground of cruelty. Many argue that criminalising marital rape could give wives a free pass to file false cases under Section 498-A to get their husbands arrested. 

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

In March this year in a landmark ruling, the Karnataka High  refused to quash rape charges filed by a wife against her husband, defying the exception in law, and, instead, called on lawmakers to hear the “voices of silence.”

“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 Karnataka High Court said. The “age-old…regressive” thought that “husbands are the rulers of their wives, their body, mind and soul should be effaced,” the court said.