FPJ Explains: Why marital rape is still not a crime in India

'Rape is rape, even if the rapist is husband', ruled the Karnataka High Court in March while refusing to quash rape charges filed by a wife against her husband, defying the exception in law, and, instead, called on lawmakers to hear the “voices of silence.”

Since January 7, a two-judge bench of the Delhi High Court has been conducting daily hearings of a clutch of petitions asking for the marital rape exception under the Indian Penal Code to be struck down.

The High Court on Wednesday, 11 May, saw a split decision on the constitutionality of the marital rape exception.

This 'marital rape exception' has been challenged in the Delhi High Court, on the basis that it violates the fundamental rights of married women, including Article 14 (right to equal treatment by law) and Article 21 (right to life and personal liberty) of the Constitution.

Justice Rajiv Shakdher opined that marital rape is violative of the Constitution. However, Justice C Hari Shanker upheld the validity of Section 376 B and 198 B.

What's exactly is the case?

Section 375 of the Indian Penal Code defines the offence of rape. While the section has been amended over the years to remove archaic concepts, emphasise on the importance of consent, and cover all relevant sexual acts, it still retains an exception for non-consensual sex by a husband with his wife.

India remains one of the few countries in the world that does not treat non-consensual sex within marriage as rape.

While marital rape is not a criminal act in India, a woman could file a case under other provisions of the Indian Penal Code, such as cruelty, and could also file for a divorce.

One of the first instances of the exception of marital rape appears in what is known as Hale’s doctrine. Matthew Hale, a chief justice of the Court of King’s Bench in England in the 1670s, wrote in an influential criminal law book published in 1736 that “the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract: the wife has given up herself in this kind unto her husband, which she cannot retract”.

One of the first instances of the exception of marital rape appears in what is known as Hale’s doctrine. Matthew Hale, a chief justice of the Court of King’s Bench in England in the 1670s, wrote in an influential criminal law book published in 1736 that “the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract: the wife has given up herself in this kind unto her husband, which she cannot retract”.

When the Indian Penal Code was being drafted in British India, it was due to notions such as these that marital rape found an exception in the definition of rape.

Now, the petitioners rely on a decision of the United Kingdom’s highest court from 1991 that said that striking down implied sexual consent in marriage does not lead to creating a new offence.

Legal academics have also pointed out that striking down the exception only removes an immunity that is based on unconstitutional grounds for married men to avoid prosecuted for marital rape.

This 'marital rape exception' has been challenged in the Delhi High Court, on the basis that it violates the fundamental rights of married women, including Article 14 (right to equal treatment by law) and Article 21 (right to life and personal liberty) of the Constitution.

Published on: Wednesday, May 11, 2022, 04:29 PM IST