The issue of marital rape in India has ignited considerable legal and societal debate, with Section 375 of the Indian Penal Code (IPC) — now reinstated as Section 63 of the Bhartiya Nyay Sanhita — at its center. This section defines rape and sets out the conditions under which it is classified as an offence, but controversially excludes marital rape from its provisions.

This exemption raises critical questions about women’s consent and rights in marriage, reflecting an evolving position of India’s Supreme Court.

Section 375 of the IPC outlines various forms of non-consensual sexual acts, but specifically excludes sexual relations between husband and wife as long as the wife is above 18 years of age. This legal position is based on traditional views of marriage, where consent is often assumed. , however, drew attention for undermining women’s autonomy and rights in marital relationships.

Critics of this exemption argue that it perpetuates the belief that a woman is obligated to satisfy her husband’s sexual needs, thereby violating her bodily autonomy. They argue that this legal framework normalizes violence against women and erodes their agency.

Section 375 of the IPC defines rape as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud, or at a time when she is intoxicated, deceived or of unsound mind. In any case. , if he is under 18, it is considered rape”.

Rape is classified in the following categories in the IPC:

1. Against her will: Any sexual act imposed on a woman.

2. Without consent: In a sexual act without her consent.

3. Consent obtained by fear: When consent is given under the threat of death or injury to her or someone she cares about.

4. Identity fraud: If the woman agrees to believe that the man is someone to whom she is or believes herself to be legally married.

5. Lack of understanding: Consent given when the woman is unable to understand the nature and consequences of the act due to unsoundness of mind or intoxication, either by the man or by any intoxicating substance.

6. Age Consideration: If the woman is under sixteen, consent is irrelevant and any penetration constitutes rape.

Exceptions to section 375

The law states that sexual intercourse between a man and his own wife, who is over 18, does not qualify as sexual assault.

Amendments to Section 375 of the IPC

The Penal Code (Amendment) Act, 2013, also known as the Nirbhaya Act, was introduced to clarify and strengthen the provisions of Section 375. This amendment explicitly defines various forms of sexual assault, including penetration of any part of the body into the vagina. , anus or mouth and applying mouth or touching private parts as offences.

Punishment

Generally, unless aggravating circumstances apply, the penalty for rape is imprisonment for a minimum of seven years, which may extend to life imprisonment, along with a fine. In aggravated situations, the penalty increases to a minimum of ten years rigorous imprisonment, which may extend to life imprisonment with a fine.

WHAT THE SUPREME COURT OF INDIA HAS MARKED IN THEIR JUDGMENTS

The Supreme Court of India has examined the issue of marital rape several times. In 2017, a Public Interest Litigation (PIL) was filed.urging the court to reconsider the Section 375 spousal rape exemption. The petition argued that consent cannot be presumed in marriage and called for marital rape to be made a crime.

In a 2019 landmark judgment in the case of Independent Thinking vs. Union of India, the Supreme Court addressed the age of consent, invalidating a provision that allowed sexual contact with a minor wife under 18.

Although this ruling did not directly address marital rape, it set a precedent for re-evaluating existing norms regarding consent and marriage.

In 2021, the Supreme Court engaged in discussions about the criminalization of marital rape, expressing concern about the legal and societal ramifications of such legislation.

The court opted to refer the matter to a larger tribunal for deeper consideration, reflecting the complexity of legal reforms that must navigate entrenched cultural attitudes toward marriage and gender roles.

Over the past two years, the Supreme Court of India has revisited the controversial issue of marital rape, specifically examining its exemption under the former Section 375 of the IPC. In 2024, the government claimed that criminalizing marital rape could destabilize marriages and prompt false complaints, pointing out that existing laws already address spousal abuse.

Chief Justice DY Chandrachud weighed in on Supreme Court hearings on petitions to criminalize marital rape, questioning whether removing spousal immunity could create a new offence. After extensive discussions, CJI Chandrachud recused himself from the caseemphasizing the complexity of the arguments.

The Supreme Court continues to evaluate the constitutional validity of spousal protections in non-consensual acts of marriage, which could significantly reshape conjugal rights in India.

However, legal experts argue that the exemption violates women’s rights to equality, autonomy and dignity, as recognized in Justice KS Puttaswamy’s case.

Advocates argue that marriage should not imply automatic consent, urging reforms in line with international standards. A Supreme Court ruling on the matter could reshape the legal treatment of women’s rights in marriage in India.

As this conversation evolves, it is critical that society engages in meaningful discussions that challenge outdated norms and advocate for a justice system that respects the dignity and rights of all individuals.

Posted by:

Rishab Chauhan

Published on:

October 26, 2024