Criminalising Marital Rape in India

The central government has opposed criminalising marital rape, suggesting a comprehensive solution is needed rather than a strict legal one.

Evolution of Section 375 of the IPC:

⚖️ Government Stance on Marital Rape: The central government has opposed criminalising marital rape, calling for a “comprehensive approach” rather than a “strict legal approach.”
📜 Section 375 of IPC: Defines rape under the Indian Penal Code and includes exceptions such as marital rape and medical interventions.
🕰️ Historical Context: The IPC, enacted during British rule in 1860, initially exempted marital rape for wives above ten years, later increased to fifteen in 1940.
👩‍⚖️ Supreme Court Ruling (2017): The Supreme Court ruled that sex with a wife under eighteen years old constitutes rape, thereby setting the age of consent at eighteen.

🏠 Domestic Violence Act, 2005: The Act addresses marital rape indirectly through provisions against sexual abuse in marriages or live-in relationships.
⚖️ Civil Remedies Only: The Domestic Violence Act provides civil remedies but does not allow for criminal proceedings against perpetrators of marital rape.
📄 Law Commission’s Stance: The Law Commission of India, in its 172nd report (2000), rejected the proposal to remove the marital rape exception during the review of sexual violence laws.

⚖️ Legal Fiction of Marital Rape Exception: The exception creates a scenario where rape is not recognized if the parties are married, even if all other conditions of rape are met.
🚫 Discrimination Against Women: This exception is arbitrary and discriminatory, denying married women the same legal protections available to others.
🤷‍♀️ Before vs. After Marriage: Sexual assault before marriage is classified as rape, but the same act after marriage is exempt from criminal liability.
❤️ Inconsistent Standards: While assault in live-in or intimate relationships is considered rape, marriage provides immunity under Section 375 of the IPC.
🛡️ Lack of Legal Protection: Married women are denied the legal rights and protection from sexual violence that others receive.

⚖️ Misuse Concerns: Fears about misuse of the law are a key reason for opposing the criminalisation of marital rape, citing examples from dowry-related Section 498A.
📊 Statistics on Misuse: In 2020, 1,11,549 Section 498A cases were filed, with 5,520 found false; out of 18,967 cases tried, 14,340 led to acquittals and 3,425 to convictions.
⏳ Backlog Issue: There was a significant backlog of 498A cases in 2020, with a pendency rate of 96.2%.
🤔 Complex Burden of Proof: Determining the burden of proof in marital rape cases is challenging, as sexual relations are an accepted aspect of marriage.
⚧️ Gender-Neutrality Debate: Discussions about making the definition of ‘rape’ gender-neutral, including in the context of marital rape, are ongoing.
🛑 Impact on Legal Provisions: Criminalising marital rape could prevent husbands from utilizing provisions of IPC Section 375 or the Domestic Violence Act.

🌍 Global Criminalisation Status: Amnesty International states that 77 out of 185 countries (42%) have laws criminalising marital rape.
📜 Countries with Laws: Countries like Australia (1981), Canada (1983), South Africa (1993), and the USA (1993) have enacted laws against marital rape.
🕳️ Legal Gaps: In many nations, marital rape is either not addressed or explicitly excluded from rape laws.
🇺🇳 UN’s Stance: The United Nations has called on countries to eliminate marital rape by closing legal loopholes, highlighting that “the home is one of the most dangerous places for women.