Marital rape, which refers to non-consensual sexual intercourse between spouses, is a deeply concerning issue that has been a matter of debate and discussion in India for many years. The provisions of marital rape in India are currently a topic of much controversy, as there is no specific law that criminalizes this heinous act.

Under Section 375(2) of the Indian Penal Code (IPC), sexual intercourse by a man with his own wife, who is above 18 years of age, is not considered rape, even if it is without the wife's consent. This provision has been widely criticized as discriminatory and a violation of women's rights, as it essentially condones sexual violence within marriage and denies women the autonomy over their bodies.

International Perspective
The criminalization of marital rape in India has been demanded by numerous human rights groups, activists, and legal professionals. They contend that regardless of their marital status, women have a basic right to be protected from sexual violence, and that the current legal restrictions infringe on this right. They also point out that making marital rape a crime would be in compliance with India's international obligations under the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and other human rights treaties.

Despite these calls for change, marital rape in India is still a controversial and complex issue. Some contend that criminalizing marital rape would undermine the sanctity of marriage and could be misused by women to fabricate accusations against their husbands. Others contend that the lack of legal protection for women within marriage perpetuates a culture of violence and abuse and that the current legal provisions need to be amended to reflect changing social norms and values.

In recent years, there have been several petitions filed in the Indian courts seeking the criminalization of marital rape. However, progress on this issue has been slow, with the government and some conservative groups opposing the move. Nevertheless, the issue remains at the forefront of public discourse, with many advocating for the rights of women to be protected within marriage.

Some notable cases related to marital rape in India:
State Of Maharashtra And Another vs Madhukar Narayan Mardikar [(1991) 1 SCC 57]: According to the Supreme Court, every woman has a right to sexual privacy, which cannot be subjected to invasion by anyone at any time.

Independent Thought v. Union of India [(2017) 10 SCC 800]: In this landmark case, the Supreme Court of India held that the exception to Section 375(2) of the Indian Penal Code, which allows for non-criminalization of marital rape, is unconstitutional and violates the rights of women. The court also held that sexual intercourse with a minor wife below the age of 18 would constitute statutory rape, irrespective of marital status.

Nimeshbhai Bharatbhai Desai v. State of Gujarat [2018 SCC OnLine Guj 732]: The court ruled that marital rape is not criminalized in India yet due to Parliament's fear of destabilizing marriage. However, safeguards exist in the criminal justice system to detect fabricated complaints and make those responsible accountable. Indian laws protect women's rights to life and liberty, but not their bodies. Husbands can be held liable for an offense of assault, but not for rape only because of their valid marriage. Here court also discussed three kinds of marital rape; battering rape, force-only rape, and obsessive rape.

RIT Foundation v. Union of India [(2022) 3 HCC (Del) 572] - This case dealt with marital rape and the need for legal protection for women in abusive relationships. The case was filed challenging the constitutional validity of section 375 of the Indian Penal Code, which exempts husbands from rape charges if wives are above 15. The Delhi High Court directed the government to consider amending laws to make marital rape a criminal offense, highlighting the need for comprehensive socio-cultural solutions.

Although not all cases explicitly deal with marital rape, they establish significant guidelines and principles pertaining to the problem. They reflect the evolving attitudes towards gender and sexuality in India and provide a basis for future legal advancement in this field. It is important to note that despite these rulings, marital rape continues to be a complex and contentious issue in India, and there is a need for greater awareness and sensitivity towards this type of violence against women.

Marital rape can be considered a form of cruelty under section 498A of the Indian Penal Code (IPC). The crime of cruelty committed against a married woman by a husband or his relatives is addressed in Section 498A. It includes any willful conduct that is likely to drive the woman to commit suicide or cause grievous hurt, danger to life or limb, or harassment to coerce her or her relatives to meet any unlawful demands for any property or valuable security.

Conclusion:
In conclusion, the laws pertaining to marital rape in India continue to be a matter of intense debate and controversy. While there is no denying the complexity of the issue, it is imperative that the government and society as a whole take steps to ensure that women are protected from all forms of sexual violence, including within marriage.

The criminalization of marital rape would be an important step towards achieving this goal and ensuring that the rights of women are respected and upheld. However, courts have recognized marital rape as a form of cruelty under section 498A and have convicted husbands for the offense.

Written By: Simran Mehta
Ph no: [email protected]