Why Should the Marital Rape Exception be Removed?

The marital rape exception must be removed as it is no longer legally tenable in light of the Supreme Court decisions in various cases. Contrary to arguments that the central government has advanced repeatedly, these decisions hold that marriage does not mean there is irrevocable consent for sexual intercourse, and that a regressive practice cannot be used to ensure the stability of marriage.

According to the latest data published by the National Crime Records Bureau (2019), a woman is raped in India every 15 minutes. However, this data excludes women’s rape by their own husbands. Section 375 of the Indian Penal Code, 1860 defines rape and according to Exception 2 thereto, “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” As a result, any sexual act by a man with his wife, irrespective of her consent, cannot be considered to be rape under Indian criminal law.

Further, Section 376B stipulates that the punishment for a husband who has sexual intercourse with his wife living separately without her consent would not be less than two years but may extend to seven years. This is as opposed to punishment for rape prescribed under Section 376 which is not less than 10 years and may extend to imprisonment for life. Thus, even within the limited recognition accorded to marital rape as a criminal offence, it is seen as a less serious or less culpable form of rape.