Marital rape is antithetical to equality and autonomy

May 24, 2024

GS Paper II Indian Polity and Governance

Context

Recently, the Madhya Pradesh high court in Manish Sahu vs State of Madhya Pradesh held that “any sexual intercourse or sexual act by the husband with his wife not below the age of 15 years is not a rape.

Marital Rape

Marital rape or spousal rape refers to engaging in sexual intercourse with one’s spouse without their consent.

Legal Status in India: In India, there are no legal provisions that explicitly address “marital rape”.
- India is among the 36 countries worldwide where marital rape remains unrecognized as a criminal offense.

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Status of Marital Rape in India

Provision of Rape in Indian Penal Code: Section 375 of the Indian Penal Code (IPC) delineates rape as a criminal act, stipulating that a man is guilty of rape if he engages in sexual intercourse with a woman without her consent or if she is a minor.
- Nonetheless, Exception 2 to Section 375 states that sexual intercourse by a man with his wife, provided she is not under fifteen years of age, does not constitute rape.
Supreme Court Ruling : In a significant 2018 ruling, the Supreme Court of India determined that sexual intercourse with a wife aged between 15 and 18 would be classified as rape.
- In September 2022, a landmark judgment by the Supreme Court affirmed women’s entitlement to safe abortions irrespective of marital status.
- It determined that, under the Medical Termination of Pregnancy Act, the definition of rape should encompass marital rape.
Legal Recourse for Marital Rape: For married women, the only legal recourse against non-consensual sex lies in civil provisions outlined in the Protection of Women from Domestic Violence Act or Section 498-A of the IPC, which addresses cruelty against a wife by her husband or his relatives.

Marital rape provisions around the world

Russia : In 1922, the Soviet Union, now Russia, became the first nation to criminalize rape and abolish the “marital exemption” from its rape laws.
Countries that Have Criminalized Marital Rape:
- United States: Since 1993, marital rape has been criminalized in all 50 states of the US, although laws vary by state.
- United Kingdom: Marital rape has also been made a criminal offense in the UK, with potential sentences including life imprisonment.
- South Africa: Marital rape has been illegal in South Africa since 1993.
- Canada: Marital rape is punishable by law in Canada.
Exceptions: Countries where offense is not punishable includes Ghana, India, Indonesia, Jordan, Lesotho, Nigeria, Oman, Singapore, Sri Lanka and Tanzania.

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Arguments in favour of criminalizing Marital Rape:	Arguments against criminalizing Marital Rape
Fundamental Rights Violated by Marital Rape Exception: Undermines the Right to Autonomy and Privacy as Enshrined in Article 21, as well as Article 14, which Ensures Equal Protection Under the Law, and Article 15(1) Protecting Against Discrimination. Physical and Psychological Impact: Manifestations include shock, fear, stress, suicidal inclinations, miscarriages, infections, infertility, susceptibility to diseases such as HIV, injuries to private organs, bruises, and torn muscles.	Potential Abuse of Legislation: The Criminalization of Marital Rape May be Exploited to Lodge False Allegations. For Example, in 2020, Out of a Total of 111,549 Registered Cases Under Section 498A (Related to Dowry), 5,520 Were Closed by Police Due to Being Deemed False.
	Burden of Proof: Difficulty in substantiating claims of marital rape due to insufficient evidence such as CCTV footage makes the burden of proof challenging to establish in these instances.

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