• Recently, The Chhattisgarh High Court upheld the charges filed against a husband under sections 498A and 377, but discharged him under Section 376.
  • Section 376 of IPC - Rape
  • Section 377 of IPC - carnal intercourse against the law of nature.
  • Section 498A of IPC - cruelty toward a wife by the husband or the husband's relatives.
• The debate around criminalization of marital rape has renewed after this decision .
• It is argued that the non-criminalization of marital rape in India undermines women's human rights and dignity. 

• Under Exception 2 to Section 375 (the definition of rape), sexual intercourse between a man and his own wife (provided she is over 18) does not amount to rape.
• The Supreme Court narrowed this provision in 2017 and ruled that sexual contact by a man with his wife under 18 is rape.
• Despite this, Sec 375 does not criminalize marital rape of women over the age of 18.

• Definition: Marital Rape refers to unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent.
• Private Members Bill: Shashi Tharoor had introduced a private member bill titled Women's Sexual, Reproductive and Menstrual Rights Bill 2018 in the Lok Sabha to make marital rape a crime.
• The Bill proposed the deletion of Exception 2 to Section 375 of Indian Penal Code that provides marriage as an exception in definition of rape given in Sec 375.

• No concrete protection: Current legal system in India does not provide any concrete protection to the victims of marital rape.
• Section 375 of IPC: It considers forced sex in marriages as a crime only when the wife is below 15 or the couple is legally separated (376B). Thus, marital rape is not a criminal offense under the IPC.
• Limitations to PWDVA: Marital rape victims have to take recourse to the Protection of Women from Domestic Violence Act 2005(PWDVA). However, it offers only a civil remedy for the offence.

• Mental health: Depression, anxiety, emotional distress, and suicidal thoughts are mental health problems associated with marital abuse.
• Impact on children: Psychological and physical effects of witnessing domestic violence can negatively impact children's health and well-being.
• Long lasting suffering: A victim of marital rape suffers long-lasting injuries that are as severe or even more severe than the harm suffered by a stranger victim.
• Enforced suffering: Some victims of marital rape stay in the marriage for a variety of reasons, including: the possibility of further abuse, financial problems, a diminished sense of self-worth, or hope that their husband or wife will change.
• Lack of divorce: Because marital rape does not qualify for divorce in any law and even the Special Marriage Act, 1954, the women remain helpless and suffer in silence.

• Fundamental right violation: It is considered as the violation of Fundamental Right guaranteed under Article 14 (equality before law), Article 21 (right to privacy, bodily integrity, right to life and personal liberty) of the Indian constitution which enshrine the goals of individual autonomy, dignity, and gender equality..
• Law Commission’s report and Justice Verma panel recommendations: Both recommended removing the exemption granted to marital rape in the laws.
• Patriarchal mindset of society: It promotes patriarchal society where women rights and consent are ignored and theory that husband cannot be a rapist.
• International Examples: Nepal, Malaysia Turkey, Bolivia, United States began criminalizing marital rape and most European countries also started it in the 1990s.
• Joseph Shine v. Union of India (2018): Despite the law on adultery being based on the principle that after marriage, a woman is her husband's property, the Supreme Court ruled that adultery is unconstitutional. It implies that a married woman is not to be treated as a private property and she has her own free will. This contradicts the exception given in definition of rape under Sec 375.

Arguments against criminalizing marital rape:

• Prone to Misuse: If it is criminalized without any adequate safeguards it may be misused by the wives to harass and torture their Husbands.
• Difficult to prove: It is difficult to prove marital rape thus has potential to be misused.
• Destabilisation of institution of marriage: The Central Government before the Delhi HC had argued that criminalising marital rape would destabilise the institution of marriage and can be an easy tool for harassing the husbands.
• Concurrent list: As criminal laws are come under Concurrent List and implemented by the states, it is difficult to achieve uniformity in law and every state has variation in their cultures.
• Broad based consensus of the society: As only the offence of rape is defined under Section 375 of the IPC and not marital rape, thus, defining it would require a broad-based consensus of the society which is difficult to achieve.
• Mere deletion of section is not solution: Only deleting the exception to Section 375 would not stop marital rape but it requires widespread social, moral awareness among the society.

• Personal and religious laws might conflict with changes to the penal code making such changes to the law difficult and sensitive task. Nevertheless it is urgently necessary to criminalize marital rape as recommended by Justice J S Verma committee. Marriage should not mean a one time irrevocable consent from the wife. A crime must remain a crime irrespective of the relationship between the perpetrator and the victim.
• But a mere declaration of an offence alone is insufficient. Sensitizing the judiciary and the police is needed for its efficacy. Further as the institution of marriage has deep roots in Indian society it is crucial to sensitize the society too.