Marital Rape in India

Gorakhnath Sharma vs State of Chhattisgarh (2019):
Key Judicial Findings
In the 2019 case of Gorakhnath Sharma vs State of Chhattisgarh, the Chhattisgarh High Court ruled that a husband cannot be prosecuted for rape or unnatural sex with his wife if she is above 15 years of age, regardless of consent. This decision was based on Exception 2 under Section 375 of the Indian Penal Code (IPC), which exempts husbands from rape charges if their wives are not below 15 years of age.Meanwhile, the Supreme Court is currently reviewing petitions advocating for the criminalization of marital rape, supported by women's rights activists.

Understanding Marital Rape
Definition:
Marital rape refers to forced sexual intercourse or sexual assault within a marriage. Despite being a form of intimate partner violence, it is not classified as a criminal offense in India.
Current Legal Status in India:

• If a married couple is living separately, a husband can be charged with rape if his wife does not consent to sexual intercourse.

Legal Framework on Marital Rape
Indian Penal Code (IPC):

• Under Section 375 (Exception 2), sexual intercourse between a husband and wife is not considered rape if the wife is above 15 years of age.
• The Bharatiya Nyaya Sanhita (BNS) retains the marital rape exemption but raises the age of consent from 15 to 18 years, in line with the Supreme Court's ruling in Independent Thought vs Union of India (2017).

Protection Under Domestic Violence Act, 2005:

• While marital rape is not explicitly criminalized, women can seek relief under this law for sexual abuse, humiliation, or violations of dignity within marriage.

Judicial Precedents on Marital Rape
Independent Thought vs Union of India (2017):

• The Supreme Court struck down Exception 2 to Section 375 of the IPC (now Section 63 of the BNS) for wives aged 15-18, recognizing sexual intercourse with minor wives as rape.
• The ruling emphasized that the exception was unconstitutional, violating Articles 14 (equality), 15 (non-discrimination), and 21 (right to life and dignity).
• The Protection of Children from Sexual Offences Act (POCSO), 2012 takes precedence over the IPC, making sex with minors (under 18) a punishable offense, irrespective of marital status.

K.S. Puttaswamy vs Union of India (2017):

• The Supreme Court reinforced the concept of sexual autonomy as an intrinsic part of privacy.

Other Key Rulings:

• Bombay High Court (2023): Ruled that consensual sex with a minor wife constitutes rape, dismissing consent as a defense.
• Madhya Pradesh High Court (2024): Stated that unnatural sex with a wife is not rape and that a wife’s consent is irrelevant in such cases.

Unnatural Sex and Judicial Interpretation:

• Navtej Singh Johar vs Union of India (2018): The Supreme Court decriminalized consensual homosexuality by partially striking down Section 377 of the IPC.

Government's Position on Marital Rape
The Ministry of Home Affairs has argued before the Supreme Court that while a husband must respect his wife’s consent, labeling marital sex without consent as "rape" is excessively severe and disproportionate.Arguments for and Against Criminalizing Marital Rape
Arguments in Favor of Criminalization:

• Right to Autonomy: Every individual has the right to refuse sexual relations, even within marriage. The Navtej Johar case (2018) upheld the principle of sexual autonomy, which should extend to marriage.
• Supreme Court Precedent: The Independent Thought ruling (2017) recognized marital rape for minors, reinforcing the significance of consent.
• Equality Before Law: Exempting husbands from prosecution violates constitutional rights under Articles 14, 15, and 21.
• Child Protection Laws: Non-consensual sex is criminalized for minors; the same standard should apply to married adults.
• Legal Consistency: The BNS retains immunity for husbands despite decriminalizing consensual homosexuality under Section 377.

Arguments Against Criminalization:

• Impact on Marriage: Criminalizing marital rape could destabilize marital relationships.
• Existing Legal Protections: Laws against domestic violence already offer some protection against sexual abuse within marriage.
• Potential Misuse: Criminalization might lead to false accusations in divorce or custody battles.
• Societal Norms: Traditional beliefs view sexual relations as an integral part of marriage, making legal reform challenging.
• Legislative Authority: The government maintains that the decision to criminalize marital rape should rest with the legislature, not the judiciary.

Global Perspectives on Marital Rape

• Marital rape is explicitly criminalized in 77 countries, while 74 nations allow legal action against spouses under general provisions.
• In 34 countries, marital rape is either decriminalized or granted immunity.
• It is illegal in 50 U.S. states, three Australian states, Canada, New Zealand, Israel, France, Sweden, Denmark, Norway, and several other nations.
• The United Kingdom, from which India derived much of its legal framework, abolished the marital rape exemption in 1991.

Recommendations for Addressing Marital Rape
Jaya Jaitley Committee Recommendations:

• Raise the legal marriage age for women from 18 to 21 to enhance gender equality, maternal health, and protection against non-consensual sex within marriage.

Legislative Reforms:

• Amend the Bharatiya Nyaya Sanhita (BNS) to eliminate the marital rape exemption and formally recognize spousal consent as a legal necessity.

Alternative Legal Measures:

• Strengthen the Domestic Violence Act, 2005 by explicitly addressing marital sexual violence and providing more robust civil remedies, including restraining orders and compensation.

Learning from Global Best Practices:

• India can study legal frameworks from the UK, Canada, and Australia to develop culturally adaptable legislation that balances individual rights with social realities.

Key Takeaways
The debate on marital rape in India highlights a conflict between personal autonomy, constitutional equality, and socio-cultural norms. While many nations have criminalized the act, India continues to provide legal immunity to husbands. Judicial rulings increasingly emphasize consent and dignity, but legislative resistance persists. Addressing this issue requires legal reforms that balance individual rights with societal concerns, ensuring justice for survivors while considering the complexities of marriage in Indian society.

Mind Sprint