Rape is an offence under Section 375 of the Indian Penal Code, but marital rape is an exception to the same. Marital relationship in India is highly revered and marriage is the most respected institution in our culture. These sentiments towards marriage can be considered as the major reasons for making marital rape as an exception under section 375 of IPC. Further, it is also believed that the consent for sexual intercourse with the wife is obtained by the husband when she has consented for the matrimonial relationship with him.
Exception 2 of Section 375-
The definition of rape provided under section 375 states that if a man forcefully commits penetration into the private parts of a woman, then it is rape. However, the same provision under exception 2 gives protection to the married man who can commit sexual acts with his wife who is above the age of 15 years. This provision provides an exemption from the criminal liability to a married man can be understood that marital rape is not an offence under the Indian Penal Code.
The exception thus neglects the consent of a woman of age 15 years and above for sexual acts by her husband. The exception clearly specifies that any sexual intercourse or sexual acts by husband with his wife who is above the age of 15 years does not amount to rape. Therefore, the term marital rape is not recognised under the IPC.
172nd Law Commission Report on Marital Rape-
The exception 2 of Section 375, IPC which legalises all sexual acts by the husband, whether forced or not, has been widely criticised. This criticism made the Law Commission to consider the need for change with respect to marital rape. But the 172nd Law Commission Report in 2000 though recommended for reducing the age of wife considered under the exception 2 of Section 375 did not recommend for criminalising the forced sexual acts by the husband with his wife. The reason stated in the report was to avoid excessive interference with the marital relationship[i].
This Report of the Law Commission was made upon the directions of the Supreme Court given in the case of Sakshi v. Union of India[ii]. The petitioners in Sakshi v. Union of India[iii] pleaded that forceful sexual intercourses and sexual acts by husband with his wife should be considered as an offence under Section 375 and the Court should provide a definition of ‘sexual intercourse’ mentioned under Section 375 of IPC.
Report of Justice Verma Committee on marital rape-
Justice Verma Committee Report discussed the need for change in law related to the offences against women. The Report considered the observation of the European Commission of Human Rights in C.R. v. UK[iv] that, rapist must be considered as a rapist regardless of his relationship with the victim.
Further, the Report also considered the recommendations made by the UN Committee on the Elimination of Discrimination against Women (CEDAW Committee) in February 2007. CEDAW Committee had recommended that the Indian Penal Code should widen the definition of rape and should remove the exception of marital rape[v].
Thus, relying on the evolution of criminal jurisprudence in various jurisdictions on the concept of criminalising marital rape, the Report recommended that the exception 2 under Section 375 of IPC needs to be removed and husbands who commits sexual intercourse with their wives without her consent should be punished for rape under Section 376 of IPC.
In the case of Independent Thought v. Union of India[vi], the Supreme Court dealt with the aspects of marital rape in cases where wife is of the age between 15 to 18 years. The Court recognised the recommendations made by the Justice Verma Committee Report. The Court held that Exception 2 to Section 375 of IPC should be read as sexual intercourse or sexual acts by the husband with his wife who is above the age of 18 years is not rape. The Court further clarified that it shall not decide anything upon the issue of marital rape of adult women.
Therefore, this judgment of the Apex Court increased the age of wives from 15 years to 18 years under the exception 2 to Section 375 of IPC. But did neither criminalise marital rape nor gave a solution to adult married women in cases of marital rape.
Marital Rape under Domestic Violence Act, 2005-
The Protection of Women against Domestic Violence Act, 2005 considers sexual abuse as domestic violence under section 3(a). Further, under Explanation-I provided for Section 3, the Act specifies that sexual abuse shall include any conduct of sexual nature which degrades, humiliates or affects the dignity of woman.
Therefore, though marital rape is not considered as an offence under the Indian Penal Code, the Domestic Violence Act considers sexual abuse by husband as domestic violence against the wife. But the proposal before the Parliament to criminalise marital rape is still valid as no rapist should be exempted from criminal liability in case of rape in the name of marital relationship, because violating the privacy of a woman cannot be legalised with marriage.
Frequently Asked Question-
Is marriage a consent to marital rape?
In the case of RTI Foundation v. Union of India[vii], the Delhi High Court opined that marriage is no consent for rape by husband.
Edited by Sakshi Agarwal
Approved & Published – Sakshi Raje
[i] 172nd Law Commission Report, March 2000, Chapter three, pp. 19 to 38.
[ii]2004 (5) SCC 518
[iv] C.R. v UK Publ. ECHR, SerA, No. 335-C
[v] The Report of Justice J. S. Verma Committee, 2013, paragraph 15, p 62.
[vi] 2017 (10) SCC 800.
[vii] W.P. (C) No.284/2015 (India)