The Delhi High Court has recently delivered a split verdict on a batch of petitions challenging the exception provided to marital rape by the Indian Penal Code (IPC). Consequently, due to the split verdict, the case will be heard by a larger Bench, including a potential three-judge Bench of the High Court or even before the Supreme Court.
The Case Background
The court was considering four petitions that called into question the constitutionality of the exception to Section 375 of the IPC. The petitioners firmly believe that this exception infringes upon the fundamental rights of married women. During the delivery of the verdict, the judges were divided: one struck down Exception 2 of the IPC’s Section 375, while the other upheld its validity.
Understanding Section 375 of the IPC
Section 375 of the IPC outlines the acts that would be classified as rape when perpetrated by a man. Interestingly, this section also contains two exceptions: the decriminalisation of marital rape and a provision stating that medical procedures or interventions do not equate to rape. Exception 2 of Section 375 implies that if a man engages in sexual intercourse or sexual acts with his own wife, who is not under fifteen years of age, it is not considered rape.
History of Marital Rape Law in India
Despite the Domestic Violence Act of 2005 hinting at marital rape as a form of sexual abuse within a marriage or live-in relationship, it only offers civil remedies with no options for victims to initiate criminal proceedings against their violators. The Delhi High Court has been deliberating on this case since 2017. This is not the first time that the issue of marital rape has come up. The Law Commission of India rejected the idea of removing the marital rape exception in 2000, and although the Justice JS Verma Committee recommended changes to India’s rape laws in 2012, the suggestion on marital rape was ignored. When questioned in the Parliament session in 2015, the proposal to criminalise marital rape was rejected.
Origins of the Exception on Marital Rape in the IPC
The Indian Penal Code, implemented during British colonial rule in 1860, originally made the marital rape exception applicable to women over 10 years of age, later raised to 15 in 1940. It is argued that the IPC is derived from the 1847 draft of Lord Macaulay, the chairman of the First Law Commission established in colonial-era India, which excused marital rape without any age limit. The notion of implied consent comes from the Doctrine of Hale, given by Matthew Hale, the then British Chief Justice, in 1736. This suggests that a husband cannot be guilty of rape because a wife has given up her rights through marriage.
Government Stand on Marital Rape
The Centre initially backed the marital rape exception but later stated it was reviewing the law, indicating that further deliberation was necessary. The Delhi government argued for maintaining the exception, citing the protection of men from potential misuse of the law by their wives and the preservation of the institution of marriage.
Global Approach to Marital Rape
According to Amnesty International data, out of 185 countries, 77 (42%) criminalise marital rape through legislation. However, some countries either do not mention marital rape or explicitly exclude it from rape laws, leading potentially to sexual violence. Nations such as Ghana, India, Indonesia, Jordan, Lesotho, Nigeria, Oman, Singapore, Sri Lanka, and Tanzania explicitly allow marital rape. Whereas, 74 countries enable women to file complaints against their husbands, but 34 out of 185 do not provide such provisions, and a dozen countries allow rapists to escape prosecution by marrying their victims.
Issues with Marital Rape Exception
The exception clause infringes upon women’s fundamental rights to equality, freedom of speech and expression, and most importantly, the right to life and personal liberty, denying them agency over their bodies. The low rates of prosecution in marital rape cases in India are attributed to societal conditioning, minimal legal awareness, inaccurate methods of data collection by the National Crime Records Bureau (NCRB), and out-of-court settlements due to the tedious process of justice or lack of admissible proof.
A Way Forward
With the modern Indian law providing separate and independent legal identities to husbands and wives, it is time to reevaluate the existing laws. Given the pressing need for protecting women’s rights, legislative action should aim to include marital rape within the ambit of rape laws by eliminating Section 375 (Exception 2) of IPC.