The term ‘Marital’ Rape also referred as spousal rape means ‘an unwanted intercourse by a man on his wife obtained by force, threat of force or physical violence or when she is unable to give consent. The Domestic Violence Act, 2005 hints at marital rape by any form of sexual abuse in a live-in or marriage relationship. However, it only provides for civil remedies. In India, the concept of marital rape doesn’t have any criminal proceedings per se against the perpetrator until and unless the age of the wife is not less than 18 years as mentioned under Section 375(2) of the IPC,1860.
In India, Marital Rape is not a crime because if the person is married it is believed that the marriage gives him an exception for sexual relations and that there is implied consent for sex by the wife. So as marital rape is not a criminal act in India, the woman can file a case on the grounds of cruelty and can also apply for divorce on the same grounds. However, these grounds are not meeting the ends of justice.
The High Courts across the country have expressed their mixed views on the issue as of whether the term Rape includes Marital rape or not. As there is no decision of the apex court yet concerning the issue of criminalizing marital rape per se under Section 375 of IPC, 1860, there exists confusion as to the circumstances that make difference between the marital rape and the concept of rape under the relevant statutory provisions of Hindu Marriage Act, 1955, Domestic Violence Act, 2005 and Sec 375 of IPC, 1860.
This Article gives a Bird’s Eye View of the Concept of Marital Rape in India and the Constitutional Validity of the Criminalizing of marital rape in India.