Marital Rape under Indian Law

“Sexual intercourse by a man with his own wife the wife not being under fifteen years of age, is not rape “

This is what our IPC section 375 exception 2 says. Recently, a petition was filed in Delhi High Court challenging this law (RIT Foundation v. Union of India). This incident arouses few important questions in our mind. Firstly, what actually is marital rape? How can a husband having sexual intercourse with his wife be termed as “rape”?

In a society like ours, where patriarchy system exist, where in some cases after marrying a woman a man doesn’t feel the need to ask for the consent of the wife before engaging into sexual activities, what else do we expect other than a victim, who is domestically abused and sexually harassed by her own husband. So, yes, a husband having sexual intercourse with his wife can be termed as “rape” if it’s without the consent of the wife.

Another question that comes to our mind is that, should we criminalize this wrong? Should it be treated like an ordinary rape case? Now, this is a controversial question which brings us back to our case law.

Here is the verdict that was given by Delhi High Court regarding this case:

“What may appear to be marital rape to an individual wife may not appear so to others. As to what constitute marital rape and what would constitute marital non rape needs to be defined precisely before a view on criminalization is taken…..it has been adequately ensured that marital rape does not become a phenomena which may destabilize the institution of marriage, apart from being a easy tool for harassing husbands….if all acts by the man with his own wife qualify as marital rape, then the judgment as to whether it is marital rape or not will singularly rest with wife.”

–Union of India submission in Delhi High Court  (28/08/2017)

The government reasoning here is presumed or seems to be acquired by instances of dowry law in our country. Misuse of dowry law by women against their husbands was set as an example by many who voted against criminalization of marital rape.

Let’s take a reality check. In 2015, a survey in India revealed that one in five men have forced their wives to have sexual intercourse. More than two-thirds of Indian married women between 15 and 49 years old claimed to have been beaten or forced into sex by their husbands. Around 665 cases have been reported in 2015 in NGOs by women who faced domestic violence and marital rape, but the cases registered with court are very few.

The lawmakers cannot turn a blind eye to such an unpardonable deed. It degrades the dignity of a married woman and they become like paraphernalia for the men who use them in the way they desire for these own pleasure and comfort. Marital rape is a more serious and debatable matter, and should be looked upon deeply by our law and society to find a solution to stop this obnoxious practice.

By-

Aishwarya Gupta