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A hearing was held in the Delhi High Court on whether it is a crime to forcibly have sex with the wife after marriage in the country. On this matter, the judges of the Delhi High Court were not unanimous, that is, everyone had their own different opinion. Due to this, the High Court has now referred the matter to a three-judge bench, where the hearing will happen. But now, a new debate has started comprising two opposing views – On one hand, there is pressure to make a law on marital rape in the country. On the other hand, there is a section of society that wants marital rape to be kept out of the category of crime. As of now, marital rape is not a crime in India. However, women’s organizations and feminist groups have been demanding for a long time to bring marital rape under the purview of crime.

What is Marital Rape?

If the husband forcibly has a physical relationship with her without the consent of the wife, then it is called marital rape. As of now, the Indian Penal Code does not consider it a crime. The definition of rape has been given in section 375 of IPC. An exception to section 375 states that if the husband has physical relations with his wife or any kind of sexual activity, then it is not rape. If the age of the wife is less than 15 years, then it will be classified as rape. Therefore, marital rape is clearly not mentioned in the IPC.

What is the law on marital rape?

The definition of rape has been given in section 375 of the Indian Penal Code (IPC). Although the punishment for rape has been fixed in different clauses of section 376, marital rape is not mentioned in any of the sections. Marital rape is considered a principled offense but the law does not consider it a crime.

What is the exception to IPC?

• According to the exception of section 375, if the wife is not a minor, then her husband having sex or having sex with her does not amount to rape.
• In the case of marital rape, the central government had initially favored the making of law for this, but later took a U-turn and advocated a change in it. On February 21, the High Court had reserved the verdict after hearing the arguments of all the parties.

Judge is not unanimous on Marital Rape

Justice Shakdher, while delivering the verdict, said that ‘as far as I am concerned, the exception (Exception) 2 of section 375 is a violation of Articles 14, 15, 19 (1) (A) and 21 of the Constitution. And so, they are terminated. While Article 14 talks about equality, 15 does away with discrimination of religion, race, caste, sex, and place of birth. Article 19(1)(a) talks about freedom of expression. Article 21 talks of life and personal liberty. Justice Shankar had said there ‘I do not agree with this decision’. The provision is not violative of Articles 14, 19 (1) (A), and 21.