Criminalising Marital Rape in India

What’s in today’s article?

• Why in the News?
• Evolution of Section 375 of the IPC
• History of Martial Rape Law in India
• Issues with Exception to Marital Rape
• Arguments against Criminalising Marital Rape
• How is Marital Rape Treated Around the World?
• News Summary

Why in the News?

• The central government has opposed the criminalisation of marital rape in the Supreme Court, stating that matter relating to marital rape needs a "comprehensive approach" rather than a "strict legal approach".

Evolution of Section 375 of the IPC

• Section 375 of the IPC defines the acts that constitute rape by a man.
• The provision, however, lays down two exceptions as well:
  • It decriminalises marital rape,
  • It mentions that medical procedures or interventions shall not constitute rape.
• The IPC was implemented in India during British colonial rule in 1860.
• Under the first version of the rules, the marital rape exception was applicable to women over ten years of age. In 1940, this age was raised to 15.
• However, in October 2017, the Supreme Court ruled that sexual intercourse by a man with his wife, the wife not being under eighteen years of age, cannot be considered as rape.

History of Martial Rape Law in India

• The Domestic Violence Act, 2005 hints at marital rape by any form of sexual abuse in a live-in or marriage relationship.
• However, it only provides for civil remedies. There is no way for marital rape victims in India to initiate criminal proceedings against their perpetrator.
• The need to remove this marital rape exception was rejected by the Law Commission of India’s 172nd report in 2000, while considering several proposals to reform India's laws on sexual violence.

Issues with Exception to Marital Rape

• The marital rape exception, thus, creates a legal fiction where, even if all the requirements for rape are otherwise fulfilled, the law deems not to be rape if the parties are married.
• Apart from being harmful and discriminatory towards women, the marital rape exception is also entirely arbitrary.
• If sexual assault takes place five minutes before a marriage is formalised, it is rape; but five minutes after, it is not.
• Sexual assault will be rape if it is committed within the context of a live-in relationship – or any other intimate relationship — and yet, this legal immunity under Section 375 of the IPC kicks in where that relationship has been formalised.
• The marital rape exception thus denies to one class of women — married women — the guarantees that law offers to all others.

Arguments against Criminalising Marital Rape

• Misuse of law:
  • Misuse of the law is a big reason why several individuals, jurists and even men’s rights activists have raised alarm over the criminalisation of marital rape.
  • The statistics cited to argue against the criminalisation of marital rape are those of the misuse of 498A, the law that relates to dowry cases.
  • A total of 1,11,549 cases were registered under 498A in 2020. Of these, 5,520 were closed by Police citing as false and overall 16,151 cases were closed by police either because they were false or there was a mistake of fact or law or it was a civil dispute etc.
  • 18,967 cases were tried in courts of which 14,340 led to acquittal and 3,425 led to a conviction.
  • 498A cases pending trial at the end of 2020 are 651,404 with a pendency percentage of 96.2%.
• Burden of proof:
  • The burden of proof is a hugely complex issue that has prevented marital rape to be criminalised.
  • In the case of marital rape, one has to consider that intercourse is a part of any marriage.
  • Now, if marital rape itself is criminalised, the question remains who would the burden of proof be on and what would that burden be.
• Gender neutrality:
  • Arguments to make the definition of ‘rape’ gender-neutral has been put forward on many occasions, and the same argument is put forward in the case of marital rapes too.
  • Even if the exception of IPC section 375 is removed or criminal provisions are added to the Domestic Violence act, husbands will not be able to use those.

How is Marital Rape Treated Around the World?

• According to Amnesty International data, 77 out of 185 (42%) countries criminalise marital rape through legislation.
• Australia (1981), Canada (1983), South Africa (1993), the USA (1993) have enacted laws that criminalise marital rape.
• In many countries, it is either not mentioned or is explicitly excluded from rape laws.
• The United Nations has urged countries to end marital rape by closing legal loopholes, saying that “the home is one of the most dangerous places for women”.

News Summary

• The Central Government has opposed the criminalisation of marital rape in the Supreme Court, arguing that the issue requires a comprehensive socio-legal approach rather than a strict legal one.
• The government expressed concerns that criminalising marital rape could have significant consequences for the institution of marriage and lead to serious disruptions in marital relationships.
• Key Points from the Government’s Arguments:
  • Far-Reaching Implications:
    • The government stated that making sexual acts between a husband and wife punishable as "rape" could severely impact conjugal relationships and disrupt the institution of marriage.
  • Parliamentary Decision:
    • The Centre informed the court that Parliament, after thorough deliberation, had retained Exception 2 to Section 375 of the Indian Penal Code (IPC), which exempts marital rape from being classified as a criminal offense.
    • This decision was made during amendments to Section 375 in 2013.
  • Separate Legal Provisions for Consent within Marriage:
    • While the government acknowledged that a husband's violation of his wife's consent is unacceptable, it argued that the consequences within marriage should differ from those outside of it.
    • The affidavit mentioned that criminal law provisions are already in place to address violations of consent within marriage.
  • Concerns over Judicial Interference:
    • The Centre urged the Supreme Court not to interfere with Parliament's decision to retain the marital rape exception.
    • It argued that such interference would be inappropriate, given the socio-legal context of marriage in India.
  • Disproportionate Punishment:
    • The affidavit suggested that labelling marital sexual acts as "rape" could be considered excessively harsh and disproportionate in the context of marriage.
    • The government emphasized the importance of preserving the institution of marriage while also protecting the rights of women.
  • Supreme Court's Previous Ruling:
    • In 2022, the Supreme Court had recognized marital rape for the purposes of the Medical Termination of Pregnancy (MTP) Act, which allowed women to seek abortions for pregnancies resulting from marital rape.
    • However, the Centre's current stance highlights a distinction between this ruling and the broader criminalisation of marital rape.

Q1. What is the fundamental difference between Consent and Will?

Will is a desire, longing, ability to do something that you intend. Consent is permission or acceptance to do something. Consent follows once will is formed.

Q2. Who is known as the father of Indian Penal Code (IPC)?

The Indian Penal Code was drafted by the first Law Commission which was chaired by Thomas Babington Macaulay. It was drafted in 1834 and submitted to the Council of Governor-General of India in 1835. The code came into force in 1860.

Source: In Supreme Court, Centre defends marital rape exception