Marital rape is an issue that has seen increased debates in India in recent
years. However, it remains legal under the marital rape exception in Indian
criminal law. This article analyzes the discourse around criminalizing marital
Current Legal Position
Arguments FOR Criminalization
- Section 375 of the Indian Penal Code (IPC) defines rape but includes an exception that states forced sex by a man with his own wife aged 15 years or above is not rape.
- In the 2017 case Independent Thought v. Union of India, the Supreme Court struck down the marital rape exception for child brides under 18 years. But it still remains legal for women above 18.
- In 2022, in the Joseph Shine v. Union of India case, the Delhi High Court ruled the marital rape exception under IPC 375 as unconstitutional. But the Supreme Court has challenged this decision.
Arguments AGAINST Criminalization:
- The Kerala High Court in Narayanan vs State (2022) observed that marital rape violates the fundamental right to life and dignity under Article 21 of the Indian Constitution.
- In the Shreya Singhal v. Union of India (2015) case, the Supreme Court established privacy as intrinsic to life and liberty under Article 21. Marital rape violates married women's privacy.
- Women do not consent to sexual acts by marrying. Marriage cannot grant a husband unfettered sexual access to his wife's body as observed in the Suchita Srivastava v. Chandigarh (2009) case.
- In the Joseph Shine case, one argument made against criminalizing marital rape was that it could destabilize the institution of marriage and damage family values.
- The Protection of Women from Domestic Violence Act, 2005 recognizes physical and emotional abuse but does not include forced sex by husbands due to concerns over misuse as noted in the Domestic Violence Act, 2007 report.
- Police v State of Haryana (2022) noted evidentiary issues and concerns over conjugal rights for criminalizing marital rape.
In conclusion, recent judgments have challenged the validity of the marital rape
exception under the IPC, but it still remains in effect. Amending the exception
requires a nuanced approach that balances women's rights within marriage with
concerns over misuse and evidence. Evolving societal attitudes are also crucial
to recognizing the concept of marital rape in India.