Mar 25, 2022

Marital Rape: Are These the Winds of Change?

Guest post by Pallavi Mohan

Trigger Warning: The following content contains information on violence which some readers may find disturbing.

A couple of days ago, the Karnataka High Court passed a historic order refusing to drop charges against a man for raping his wife. To a normal reader, calling it historic might seem like hyperbole, but a look at the jurisprudence around marital rape can clarify why this judgment is unprecedented and historic.

What is marital rape and is it a criminal offence in India?

The term marital rape refers to sexual intercourse with one’s spouse, against her will and consent. Section 375 of the Indian Penal Code (IPC) defines the offence of rape and Section 376 provides the punishment for it. There is a specific exception in Section 375 that states that if a man has sexual intercourse or sexual acts with his wife, who is above the age of 15 years, it would not amount to rape. This means that if a man and a woman are married, and the man forces his wife into sexual intercourse or sexual acts against her will and consent, then he cannot be punished for the offence of rape.

However, the man can still be punished for sexual abuse, an aspect of domestic violence under the ‘Protection of Women from Domestic Violence Act, 2005. Click here for district wise modules on Domestic Violence for Bengaluru, Delhi and Mumbai to know more about the available legal recourse.

What did the Karnataka High Court do?

There was a petition to quash charges charges of rape leveled against the husband by his wife. This means that the petitioner wanted the court to declare that the prosecution could not make the charge of rape against the husband. The Karnataka High Court judge refused to quash the charges. He held that a brutal act of sexual assault against the wife against her consent, even by her husband, should be tried as an act of rape. He also said that the marital rape exception to Section 375 of the IPC  cannot be absolute, as no exemption in law can be so absolute that it becomes a license for the commission of a crime against society. He held that, since in the present case, the husband was accused of brutal sexual assault against his wife and of keeping her as a sex slave for many years, the marital rape exception to Section 375 of IPC would not come into play.

Is the Karnataka High Court’s judgement right?

While this judgement expresses the judge’s moral stand on the issue of marital rape and brutal sexual assault, from a legal standpoint, it isn’t sound. Until the legislature removes Exception 2 of Section 375 from the Penal Code or the Supreme Court or any High Court strikes down the validity of the exception, all courts have to apply the exception as the law of the land. Therefore, it is likely that in an appeal, this judgement will be set aside for being contrary to law.

Is the constitutionality of Exception 2 of Section 375 of IPC being considered by any Court?

Earlier this year, the Delhi High Court concluded the hearing on several petitions that challenged the constitutionality of Exception 2 of Section 375 of IPC. The petitioners argued before the Court that this marital rape exception violated Article 14 (right to equality) of the Constitution of India, by treating wives differently from other women who are victims of sexual assault. They invoked Article 21 (right to life and livelihood) to argue that the marital rape exception allows a husband to endanger his wife’s health and well being, leaving her with no recourse under the law for her safety. They also argued that the marital rape exception relied on the antiquated English common law ‘doctrine of coverture or implied consent’, which means that once a woman enters marriage, she gives herself to her husband and can no longer retract (or withdraw consent). The judgment on the constitutionality of the marital rape exception is still pending.