The legal recognition of offence of Marital Rape has been a point of dialogue in India. India is one of the thirty-six countries where it is not a crime to rape a woman as long as you are married to her. In Independent Thought v. Union of India, (2013) 382 SCC (2017) the Supreme Court criminalized unwilling sexual contact with a wife between fifteen and eighteen years of age. In the light of this judgement, the more voices are being raised for criminalisation of marital rape. On other hand there is also a presumption that if marital rape is recognised as an offence, then it will be highly misused law and would become an easy tool in the hands of wife to harass the husband. Also, it is difficult to prove offence of rape against the husband in the court of law.

In Suchita Srivastava v. Chandigarh Administration, the Supreme Court said the right to make choices about sexual activity is very much within the scope of rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.

Recently in the case RIT Foundation v. UOI (2022) Hon’ble Delhi High Court was hearing a challenge to the constitutional validity of the ‘marital rape immunity' provided under exception 2 of section 375 in the IPC. The case had drawn the attention on significant issues concerning consent, the female sexual independence and modifying past biases in law.

  • 1. The court here basically reckoned on how the dignity of married and unmarried women can be differentiated and asserted that irrespective of marital status, every woman has the right to say ‘no’ to a non-consensual sexual act.
  • 2. The rationale and the thrust are that a relationship cannot be put on a different footing as a woman remains a woman whether married or unmarried.
  • 3. The Court stated that ‘just because she is married so she can take recourse of other civil and criminal laws and not under section 375 (rape) of the IPC if she is a victim of forcible sexual intercourse by her husband, is not alright’.

Delhi High Court expressed a divergent opinion on the criminalisation of marital rape. Justice Rajiv Shakdher observed that “an exemption to a man from the offence of rape for forcible sex with his wife is violative of article 14 and, therefore, unconstitutional”. Whereas Justice Hari Shankar disagreed with Justice Shakdher and observed that “an exception in the marital rape law did not violate the constitution” and it is just and reasonable.

In general rape is defined in S. 375 IPC which includes all forms of non-consensual sexual intercourse. Therefore, marital rape can be defined as non-consensual sexual intercourse with one’s own wife. The voices are being raised to recognise rape within marital institution as a criminal offence. However, there are certain obstacle in legal recognition of marital rape. Such as the offence of rape within the institution of marriage is very difficult to prove as what occurs between husband and wife remains between them. Also, the issues between married spouses are already covered in The Protection of Women from Domestic Violence Act, 2005. This Act deals with all kinds of abuse like physical, emotional, sexual, financial etc. There also chances of legal provisions being misused by the spouse just like S. 498A of IPC.

Ms. Nandini Harsh, Ex. Judicial officer