Section 375 of the Indian Penal Code, 1860 (IPC) defines the acts that constitute rape by a man. The provision, however, lays down two exceptions as well. Apart from decriminalizing marital rape, it mentions that medical procedures or interventions shall not constitute rape. Exception 2 of Section 375 of IPC states that “sexual intercourse by a man with his wife, and if the wife is not under 15 years of age, is not rape”. In Independent Thought v. Union of India (2017) 10 SCC 800, the Supreme Court of India increased the age to 18 years.
The Domestic Violence Act of 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 such as legal separation. There is no way for marital rape victims in India to initiate criminal proceedings against their perpetrators.
The Delhi High Court has been hearing arguments in the case since 2015. In January 2022, two judges of the Delhi High Court started to hear petitions filed by individuals and civil society organizations challenging the exception. In RIT Foundation v. Union of India, (2022) 3 HCC (Del) 572, they had arrived at a controversial split verdict. One Judge favoured criminalizing marital rape as it violated a woman’s right to consent, while the other was against it, saying marriage “necessarily” implied consent. The matter was pushed to the Supreme Court. In X v. Health & Family Welfare Department, 2022 SCC OnLine SC 1321, the Supreme Court ruling on women’s right to safe abortions regardless of marital status held that for the purposes of the Medical Termination of Pregnancy Act, the definition of rape should include marital rape.
It is high time that the legislature should take cognizance of the legal infirmity and bring marital rape within the purview of rape laws by eliminating Section 375 (Exception 2) of the IPC.
There is a need for laws that clarify boundaries in how we relate to one another and uphold constitutional ideas of equality, dignity, and bodily autonomy, alongside the unpleasant social realities of their limited use in practice.
