Author: Mansi Singh, City Law College
Introduction
Marital rape is not criminalized in India in terms of Exception 2 of Section 375 of the IPC for women who are already above the age of 18 years. Gender injustices continue to be perpetrated in terms of this exception in a world where marital rape has been criminalized in terms of laws and statues created by various countries of the world. In relation to court decisions and other civil laws available, there is minimal relief in seeing what has happened in court decisions.
To the Point
Section 375 of the Indian Penal Code defines rape as “sexual intercourse with a woman without her consent.” Exception 2 to the statute reads, “Sexual intercourse or sexual acts by a man with his own wife, not under the age of eighteen years, is not rape.” The colonial history underlying this legislation is founded on the doctrine of spousal consent. Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023 retains the same provision of IPC under Exception 2 due to the 2017 Independent Thought Amendment Act regarding the escalation of the age limit of the wife for sexual intercourse to under 18 years. The victims are incapable of filing “any kind of criminal offense” against the accused but only in civil court under the Protection of Women from Domestic Violence Act of 2005 (PWDVA), whereby it outlines the tenet of “sexual abuse.”
Use of Legal Jargon
Section 375 IPC/BNS Section 63 defines rape as Forcing, threatening, or deceiving to penetrate without consent with erection/intention, i.e,mens rea. Section 375’s Exception 2 is `spousal immunity doctrine’ with hypothetical eternal ‘consent per matrimonium’. Prosecution requires ‘actus reus’ (forceful non-consent with penetration) with ‘mens rea’ (knowledge of non-consent) but without application to spouse. The PWDVA Section 3 includes broad definitional provisions of domestic violence to include “sexual abuse” with forced sex as an infringement of *_bodily integrity under Article 21 (Right to Life & Personal Liberty)”. Section 154 IPC CrPC Registration of FIR is stayed on ‘spousal exception’; Magistrates exercise Section 482 to quash on *matrimonial harmony* reasons after BNS. The sections defining “aggravated rape” under Section 70 are bereft of spouses’ influence after BNS with only ‘mens rea’ -irrelevant equitable relief available for the victims.
The Proof
Data from the NHFS-5 reveals 30% ever-married women aged 18-49 suffer wife sexual violence, 83% heavily one-sided against husbands. NGO, Dilaasa, reveals 60% DV is raped through compelled sex. In the world, 156 nations prosecute martial rape, Indian delays violating GR35 of CEDAW concerning consented autonomy. The filing of IPFVAC cases is up 20% since 2013 but still less than 5%, since trial judgments aren’t entitled to “*marital privilege*” concerning jurors’ judgments for wife sexual violence. Equality under articles 14 and lack of discrimination under article 15(1) is denied since wife sexual violence is punishable by 7-10 years RI under 376.
Abstract
Statutory anomaly of marital rape in Indian law gives immunity for forced sex with adult spouses under IPC Exception 2 (now BNS Section 63). Following the domination of *paterfamilias* in the Victorian social regime, the said provision violates the constitutional *right to autonomy* under Articles 21 of the Indian Constitution and Article 7 of the ICCPR (torture). Though the decision in the case of *Independent Thought* nullified the application of the provision to girls between 15-18 years in the case of *UOI (2017)*, the prevailing framework gives mere civil recourse under the *PWDVA*—protection order and residency right—without the *mens rea* requirement for criminalization. The lack of judicial boldness in taking up the issue of marital rape due to the *stigma* attached to marital rape in Indian society and the inexplicable gaps in the evidence of *consent withdrawal,* leaves the perpetrators of marital rape unpunished and unfazed in the courtroom as a rightful penal offense in view of the impunity that exists within the statutory provision of the marital rape in comparison with the complete punishment that is possible under the law in the context of the *stranger rape*.
Case Laws
Independent Thought v. Union of India (2017) 10 SCC 800: The SC declared the exception for wives aged 15-18 years to be void under the Synergy of POCSO on the assumption that sexual intercourse is defined as _statutory rape_.
“Irretrievable consent” presumption invalid under the age of 18.
Gorakhnath Sharma v. State of Chhattisgarh (2019 Chh HC): upheld that rape was not a realistic charge against women above 15 years of age without consent; gave primacy to **marital duties**, quashed FIR under Section 482 of the Criminal Code
-Suchitra Chaudhury vs. State_ (_Bombay HC, 2019_): Without criminalizing marital rape on the grounds that such acts lie outside legislatures’ jurisdiction; The PWDVA is enough for the cases.
RIT Foundation vs. Union of India (Delhi HC, 2022): Pending; petitioners seek relief under Exception 2 based on Article 14 grounds of *arbitrariness*. Consent education is a prerequisite for interim orders.
Nitya Atri vs. State (Delhi HC, 2019): Married: magistrate can modify FIR from rape to PWDVA, though no Cognizable Offense is made against adults
Conclusion
Criminalizing marital rape mandates legislative excision of Exception 2(BNS Section 63), aligning with *substantive due process*. Uniform Section 376 punishment—RI 10+ years—deters via *deterrence theory*. Judicial overreach via PILs can catalyze, but Parliament must enact; interim, robust PWDVA enforcement via *Appellate Authorities*. Societal *praxis* shift via #MeToo echoes demands accountability beyond sacrarium.
FAQS
Q1: Is marital rape a crime in India?
A: No, for wives ≥18 under BNS Section 63; civil remedies via PWDVA only.
Q2: What changed in 2017?
A: SC raised exception age to 18 in Independent Thought, criminalizing minor wife intercourse.
Q3: Can husbands be prosecuted?
A: Only if wife <18 (POCSO/Section 63); adults file PWDVA for protection orders.
Q4: Global status?
A: Criminalized in 156/193 UN states; India outlier with UK (1991), US (1993) precedents.
Q5: Reform path?
A: PILs, Justice Verma Committee 2.0; delete exception for Article 21 compliance.
