Is marital rape a crime or not? SC to hear petitions again today

The Supreme Court is set to hear a series of petitions today, 17 October, challenging the constitutional validity of exception 2 to section 375 of the Indian Penal Code (IPC), which broadly defines ‘rape’ as sexual intercourse with a woman against her will or consent, or if consent has been obtained through misrepresentation or other illegal means, or if she is of unsound mind or under 18 years of age.

Critically, exception 2 of section 375 IPC states: ‘Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.’

The IPC was framed in 1860, which may excuse the bizarre stipulation. However, the much-touted Bharatiya Nyaya Sanhita 2023, which replaced the IPC, has copied and pasted the section verbatim, simply renaming it section 63.

Today’s hearing is part of a series of ongoing hearings on petitions seeking the criminalisation of marital rape. A bench comprising Chief Justice of India (CJI) D.Y. Chandrachud and justices J.B. Pardiwala and Manoj Misra is hearing the batch of petitions.

In 2022, the Karnataka High Court described exception 2 as an “age-old, regressive” concept. While the Supreme Court had stayed the trial in the Karnataka case, it has since merged the matter with a split verdict from Delhi High Court on marital rape, along with other petitions and PILs concerning the issue.

At the beginning of this month, the Union home ministry submitted a 49-page affidavit in the Supreme Court stating that the classification of marital rape as an offence is “excessively harsh”, and that criminalising it would affect the sanctity of a marriage, insisting that there are existing legal remedies to protect married women from sexual violence, and maintaining that sexual violence in marriage should not be treated at par with that perpetrated by others.

Several legal experts and advocates have criticised the Union government’s affidavit, highlighting the necessity for specific laws addressing marital rape.

Ironically, data from the Union government’s own National Family Health Survey-5 (2019-21) shows that 32 per cent of married women (18-49 years) have experienced physical, sexual, or emotional spousal violence. The most common type of spousal violence is physical (28 per cent), followed by emotional and sexual. One in four married women has experienced physical or sexual violence and reported physical injuries.

What is even more staggering is that 82 per cent of women who survived sexual violence named their husbands as perpetrators.

Proportionality and legal scrutiny 

Suraj Sanap, an advocate with the Centre for Health Equity, Law and Policy, stresses that the Supreme Court must focus on the proportionality of the marital rape exception as per the ‘Puttaswamy test’, a reference to the landmark case of Justice K. S. Puttaswamy (Retd.) V Union of India (2017), in which the SC held that while the right to privacy is not an absolute right, any incursion of privacy by state or non-state actors must satisfy the triple test of ‘legitimate aim, proportionality, and legality’.

Sanap explains that the SC should shift its attention from debating whether husbands should be punished similarly to perpetrators of “stranger rape” to scrutinising the proportionality of the exception itself, which denies women legal recourse in order to “save the family”.

The Union government affidavit had argued that the issue is more social than legal, falling within the domain of legislative policy. Sanap says the government’s contention that criminalising marital rape could lead to the breakdown of marriages owing to “frivolous complaints” unjustly places the burden of preserving the marriage on women survivors alone, ignoring the role of violent masculinity.

Legal immunity based on gender 

Anita Abraham, a practising advocate with a focus on gender issues, argued that retaining exception 2 in the Bharatiya Nyaya Sanhita amounts to “unreasonable discrimination”.

She emphasises that married women should have the option to seek legal remedy for rape committed by their husbands, and notes that both the National Commission for Women and the government resist applying sections 375 and 376 IPC to marital rape, suggesting that provisions under sections 354 (outraging modesty), 354A (sexual harassment), 354B (disrobing a woman by criminal force), and 498A (cruelty) already provide remedies. However, as Sanap points out, there is no data to suggest that these provisions are effectively applied in cases of marital rape.

Abraham cites the Justice Verma Committee Report (2013), which recommended that marriage should not be a defence against rape, and points out that some high courts have supported this view. “The absence of consent is a denial of a woman’s dignity, freedom of choice, and autonomy. Regardless of her marital status, a woman’s right to human dignity and autonomy is not a privilege, but a fundamental right,” she says.

Government's position on marriage and consent 

While the home ministry affidavit cites existing provisions under the IPC and the Protection of Women from Domestic Violence Act 2005 as legal remedies for non-consensual acts in marriage, Abraham underlines that the right to equality guaranteed under article 14 of the Constitution applies regardless of marital status.

She also argues that the marital rape exception denies women the basic right to equality and autonomy, as enshrined in articles 14, 15, and 21 of the Constitution. She states that withholding the operation of the right to equality only with regard to the marital rape exception has no rationale, unless the Union government establishes that this exception can pass the ‘reasonable classification’ test under article 14. 

Sanap, too, rejects the government’s defence that Parliament has consciously framed sections 375 and 376 IPC in a way that provides remedies for violation of consent under other provisions or the Domestic Violence Act.

He points out that the IPC is a pre-Constitutional statute created by British lawmakers in 1860, while the United Kingdom criminalised marital rape in 1991. “As per settled law, the court must not assume the constitutionality of the marital rape exception,” he says.

The role of marriage in Indian society

The principal contention of the Union government’s affidavit is that while both parties to a marriage have a right to privacy and dignity under article 21 (and if consent is violated, such claims would evaporate), a breach of consent should not automatically result in the criminal penalties outlined in sections 375 and 376.

The government’s argument, which invokes the cultural premium attached to marriage in India, is dismissed by Sanap as arbitrary and irrelevant. He points out that the government’s stance reveals a deeper, more problematic view of women’s roles in society, which potentially perpetuates misogyny and a culture of violence against women. “Ultimately, marital rape must be criminalised under sections 375-376 to undo the patriarchal conditioning of women, who are expected to tolerate abuse in the name of promoting fraternity and preserving the social fabric,” he says.

International recognition of marital rape 

Marital rape is recognised as a criminal offence in numerous countries, including the US, France, Canada, New Zealand, and several European nations, yet it remains legally unaddressed in India.

Mangla Verma, a lawyer and founder of Part III Action Research & Resource Centre, notes that sexual violence within marriage often goes unreported owing to the stigma attached to it. “Under current Indian laws, including the new provisions in the Bharatiya Nyaya Sanhita, marital rape is still an exception and not criminalised. Even the Domestic Violence Act only provides civil remedies such as residence orders and compensation, rather than recognising sexual violence within marriage as a crime,” she explains.

Equality within legal framework

Abraham and Verma both conclude that retaining the marital rape exception perpetuates unreasonable discrimination, and argue that legal reforms should ensure equal protection for women regardless of marital status.

The home ministry affidavit has also referenced article 14, dealing with the right to equality, and suggested that treating sexual violations in marriage differently from those outside it aligns with the Constitution.

However, Sanap points out that India has moved beyond formal equality towards the goal of substantive equality under article 14. In the context of marital rape, this means that marital status should not obstruct a woman’s right to seek legal remedies. He highlights that Indian legislation, such as the Protection of Children from Sexual Offences (POCSO) Act, does not differentiate between abuse by a stranger and a family member, and provides the same criminal justice framework for both.

Sanap argues that applying sections 354, 354A, 354B, and 498A as alternatives to criminalising marital rape is inadequate, as these provisions offer grossly insufficient punishment and fail to recognise the seriousness of the offence. He stresses that the Centre’s position detracts from the fundamental goal of ensuring gender equality and legal protection for women against all forms of sexual violence.