The Delhi High Court deliberates the criminalization of Marital Rape
Writ Petitions have been filed before the Delhi High Court challenging the validity of Exception 2 to Section 375 and Section 376B of the Indian Penal Code, on the grounds that it excludes ‘marital rape’ from being recognized as a criminal offence.[i] Exception 2 to section 375 states:
“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”, clearly excluding the offence of rape committed by a man against his own wife from being a punishable act.
The Centre, through the Central Government Standing Counsel Monika Arora, has submitted before the Delhi High Court that criminalizing marital rape may ‘destabilize the institution of marriage, apart from being an easy tool for harassing the husbands’; that the concept of marital rape has to be defined before any stand can be taken as to criminalization of the same, that frivolous cases of marital rape would be filed, similar to bogus cases filed under Section 498A of the IPC. According to the Centre, India lacks literacy, financial empowerment of females, mindset of the society – and that all of these had to be considered and dealt with carefully before marital rape is criminalized.
The Petitioners have relied on the recent Supreme Court judgment declaring the ‘right to privacy’ a Fundamental Right. Certain aspects of the said judgment which dealt with the value of physical integrity, sexual autonomy, and reproductive choice, have been referred to by the Petitioners.[ii] They have also pleaded that the exception to Section 375 was drafted on the basis of the Victorian patriarchies of 1860 that did not recognize men and women as equals, did not allow married women to own property, and merged their identity with husbands under the doctrine of “coverture”.[iii]
Marital rape is a clear violation of the wife’s Fundamental Right to live with dignity under Article 21. Also, the exception to Section 375, i.e. a differentia/classification between married and unmarried women has no rational nexus to the object of the IPC, and thus denying married women from protection under the said Section is a prima facie violation of Article 14. India needs to take strides towards criminalization of marital rape, for without it, wives will have no protection from sexual abuse and will live according to the whims and fancies of their husbands. Over 2.6 billion women in the world have no criminal legal protection from marital rape.[iv] Criminalizing the offence of marital rape in India will be one step further towards women empowerment, and will be a beacon of light for the wives suffering fromacts of sexual violence and rape committed by their husbands.
[i]RIT Foundation v. The Union of India, Delhi High Court, W.P. (C) No. 284/205
[ii]Men’s Group Supports Plea Against Marital Rape; Delhi HC Allows Impleadment (August 31, 2017), http://www.livelaw.in/mens-group-supports-plea-marital-rape-delhi-hc-allows-impleadment-read-application/
[iii]Marital Rape: Petitioners Rely On SC’s Recent Privacy Judgment To Persuade The Delhi HC, (August 31, 2017), http://www.livelaw.in/marital-rape-petitioners-rely-scs-recent-privacy-judgment-persuade-delhi-hc/
[iv]Progress of the World’s Women 2011-2012: In Pursuit of Justice, UN Women Annual Report 2011-2012, (August 31, 2017),
Author: Jui Masurekar
College: Pravin Gandhi College of Law
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