While conceding that marital rape should be “illegal,” the Centre wasn’t in favour of criminalising it.
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00:00The Indian government told the Supreme Court that treating marital rape the same way as
00:04rape by a stranger would be excessively harsh, while assuring that alternative provisions
00:10already existed to protect women from it.
00:13The conversation around marital rape has been a long-standing one.
00:16Over 95% of women who endured sexual violence said their husbands or former husbands were
00:22the perpetrators, according to a 2019-2021 government survey.
00:27Marital rape has earlier been brought up in the Delhi High Court and the Karnataka
00:30High Court, and now the Supreme Court is hearing petitions seeking to criminalise it.
00:35There was a clause in the former Indian Penal Code which exempted husbands from being charged
00:40with rape.
00:41The exception 2 to section 375 of the IPC which dealt with rape said sexual intercourse
00:47or sexual acts by a man with his own wife, the wife not being under 15 years of age,
00:52is not rape.
00:53While the IPC was replaced by the Bharatiya Naiya Sanhita, this exception for husbands
00:58was retained in section 63.
01:00It now says sexual intercourse or sexual acts by a man with his own wife, the wife not being
01:06under 18 years of age, is not rape.
01:09In October 2024, the Centre went on record for the first time to say that this exception
01:15should not be struck down.
01:16It submitted an affidavit to the Supreme Court in response to petitions seeking criminalisation
01:21of marital rape.
01:23The affidavit said, in an institution of marriage, there exists a continuing expectation
01:29by either of the spouse to have reasonable sexual access from the other, which is not
01:34the case when it comes to a stranger who wants to perform sexual acts on someone.
01:39Then the affidavit clarified that a husband certainly does not have the fundamental right
01:44to violate the consent of the wife.
01:46While the Centre acknowledged that marital rape ought to be illegal and criminalised,
01:51it listed down provisions under IPC sections 354, 354A, 354B, 498A and the Domestic Violence
02:00Act as alternative recourse to marital rape.
02:03Now let's look at what other courts have said about marital rape previously.
02:07In 2022, a two-judge bench of the Delhi High Court gave a split verdict on the issue.
02:13One judge was of the view that exempting husbands who forcefully have sex with their wives from
02:17charges of rape is unconstitutional, while the other refused to criminalise marital rape,
02:23saying it was up to the legislature to consider different aspects and then change the law.
02:28The same year, the Karnataka High Court said the exception was regressive.
02:32The High Court Justice Nagprasanna had said,
02:35The age-old thought and tradition that the husbands are the rulers of their wives, their
02:40body, mind and soul should be effaced.
02:43A man is a man, an act is an act, rape is a rape, be it performed by a man, the husband,
02:49on the woman, wife, said the judgment.
02:51In the Parliament, however, former Women and Child Development Minister Smriti Irani held
02:56a different view.
02:57To condemn every man in this country as a rapist is not advisable in this August House.
03:03To condemn every marriage in this country as violent is not advisable.