The story so far: The Delhi High Court on Wednesday delivered a split verdict on decriminalising marital rape in the country. While Justice Rajiv Shakdher struck down Exception 2 of the Indian Penal Code’s Section 375 that decriminalised rape within marriage, Justice C. Hari Shankar upheld its validity. Exception 2 of Section 375 states that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”. In October 2017, the Supreme Court of India increased the age to 18 years.
The court took seven years to hear petitions seeking to criminalise marital rape.
What is Section 375 of the Indian Penal Code (IPC)?
Section 375 of the IPC defines the acts that constitute rape by a man. The provision, however, lays down two exceptions as well. Apart from decriminalising marital rape, it mentions that medical procedures or interventions shall not constitute rape.
What were the petitions filed in the case?
In India, there are no legal provisions that define “marital rape”. The petitions challenging the exception to Section 375 of the IPC were filed by NGO RIT Foundation, All India Democratic Women’s Association and a marital rape victim.
An NGO named Men Welfare Trust has opposed the petitions and argued that sexual intercourse between a husband and wife cannot be treated at par with that in non-marital relationships as the issue of consent cannot be divorced from the context of a marriage.
What is the timeline of hearings in the case?
The first petitions to criminalise marital rape were filed in Delhi High Court in 2015. In 2017, the central government filed an affidavit in the case, saying that criminalising marital rape “may destabilise the institution of marriage” and become a potential tool for harassing husbands.
Hearings in the matter began in January 2022. The Centre filed an additional affidavit in the case, saying that it can assist the High Court only after consulting all stakeholders, including the state governments. “Absence of any such consultative process by the executive/legislature may result in some injustice to one section or the other”, the Centre had said.
Solicitor General Tushar Mehta had argued that the matter requires a “holistic view” as it involves a sensitive “socio-legal issue”.
On February 1, 2022, the Centre said that it was “relooking” at its earlier position on the matter mentioned in the old affidavit and sought time to state its stand.
The High Court granted the government two weeks on February 7 to clarify its stand on the matter. On February 21, the court rejected the central government’s request to grant further time to the Centre to make its stand clear and reserved its judgement on various pleas in the matter.
What is the history of the marital 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 Delhi High Court has been hearing arguments in the case since 2017. However, this is not the first time that the issue of marital rape has been raised in the country.
The need to remove this marital rape exception was rejected by the Law Commission of India in 2000, while considering several proposals to reform India's laws on sexual violence.
Following the Nirbhaya gang rape and murder case in 2012, the Justice JS Verma Committee was tasked with proposing amendments to India's rape laws. While some of its recommendations helped shape the Criminal Law (Amendment) Act passed in 2013, some suggestions, including that on marital rape, were not acted on.
The issue has been brought up in Parliament as well. Upon being questioned in a Parliament session in 2015, then Minister of State for Home Affairs Haribhai Parathibhai Chaudhary dismissed the idea of criminalising marital rape by saying that "marital rape cannot be applied in the country since marriage was treated as a sacrament or sacred in the Indian society".
In line with the same argument, Union Minister of State Krishna Raj said in 2017 that the Union government was against removing the exception.
How did the exception on marital rape find its way into the IPC?
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. 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, is not rape.
During a hearing on the matter in January 2022, amicus curiae Rebecca John argued that the IPC is based on the 1847 draft of Lord Macaulay, the chairman of the First Law Commission established in colonial-era India. The exception in the draft decriminalised marital rape without any age limit.
Senior Advocate John added that the provision is an age-old idea that implies consent by married women and protects the conjugal rights of the husband. The idea of implied consent comes from the Doctrine of Hale, given by Matthew Hale, the then British Chief Justice, in 1736. It states that a husband cannot be guilty of rape, since “by their mutual matrimonial consent and contract the wife has given up herself in this kind to the husband”.
Another colonial-era convention that influenced the exceptional clause on marital rape has its roots in the Doctrine of Coverture. According to the Doctrine of Coverture, a woman has no individual legal identity after marriage.
Notably, the Doctrine of Coverture found a mention during the hearing when the Supreme Court of India struck down adultery as a criminal offence in 2018. Justice Indu Malhotra held that Section 497, that classified adultery as a crime, is based on the Doctrine of Coverture. This doctrine, although not recognised by the Constitution, holds that a woman loses her identity and legal rights with marriage, is violative of her fundamental rights.
How is marital rape treated around the world?
According to Amnesty International data, 77 out of 185 (42%) countries criminalise marital rape through legislation. In other countries, it is either not mentioned or is explicitly excluded from rape laws, both of which can lead to sexual violence.
Ten countries namely Ghana, India, Indonesia, Jordan, Lesotho, Nigeria, Oman, Singapore, Sri Lanka and Tanzania expressly allow marital rape of a woman or a girl by her husband.
While 74 countries allow women to file complaints against their husbands, 34 out of 185 do not provide any such provisions. About a dozen countries allow rapists to avoid prosecution by marrying their victims.
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”.
