Marriage a license to rape? India's top court to hear pleas on marital rape; these countries criminalise it

Indian Supreme Court will hear all the petitions related to the constitutionality of the 'marital rape exemption' on 9 May, 2023. The apex court has also sought a response from Indian government regarding its position on the matter and whether or not non-consensual sexual intercourse by a man with his own wife should come under the ambit of punishable offence. 

The topic of marital rape continues to spark debates in the Indian society. However, it is not a crime in India yet. While many may argue to criminalise marital rape, the other strand of the debate is about the rights of men, which many activists say must not be overlooked. As per them, criminalising marital rape may be used by some women to deliberately file false complaints against their husbands. 

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In broad terms, marital rape or spousal rape is the term used for non-consensual sexual intercourse by a man on his wife. It may also involve physical or verbal threats. According to exception 2 of section 375 of the Indian Penal Code, sexual intercourse between a man and his own wife, who is not under the age of 15, is not considered rape. 

The new hearing is taking place a year after the Delhi High Court gave a split verdict in a case involving the criminalisation of marital rape. Justice C Hari Shankar, who was part of the high court’s division bench, had said that exception under the rape law is not unconstitutional. 

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On the other hand, Justice Rajiv Shakdher, who headed the division bench of the high court, had favoured striking down the marital rape exception and said it would be tragic if a married woman’s call for justice is not heard even after 162 years since the enactment of the Indian Penal Code (IPC).

According to Justice C. Hari Shankar, the marital rape exemption is not unconstitutional. 

Nevertheless, Judge Rajiv Shakdher had argued in favour of removing marital rape exemption. He said it would be unfortunate if a married woman's plea for justice went unanswered. 

Yet, because the case had "substantial questions of law," the judges granted the certificate of leave to appeal to the Supreme Court.

A key decision in a case of marital rape was also made by the Karnataka High Court in December of last year. The court rejected the husband's plea to have the pending rape charges against him dismissed. A charge against him was made by his wife under Section 376 of the Indian Penal Code.

Karnataka High Court reportedly said, "The institution of marriage does not confer, cannot confer and in my considered view, should not be construed to confer, any special male privilege or a licence for unleashing of a brutal beast. If it is punishable to a man, it should be punishable to a man albeit, the man being a husband."

According to a UN report, just 42% of countries have laws specifically criminalising marital rape as of 2018, while 3 billion women and girls continued to live in nations where such laws did not exist.

In 1932, Poland became the first nation to explicitly crimilanise marital rape. Explicit criminalisation of rape means the law makes no distinction between rape and martial rape. 

There are about 36 nations that have not made marital rape a crime. yet. India is one among them. Others include  Pakistan, Afghanistan, Bangladesh, Egypt, Algeria, and Botswana. 

Australia's marital rape criminalisation started in the state of New South Wales in 1981 and spread to all other states between 1985 and 1992. 

Since 1993, all 50 states in the US have made marital rape a crime. It was made illegal in Nebraska in 1975. Amoung the last states to do so were Oklahoma and North Carolina, which made marital rape illegal in 1993. The Court of Appeals of New York struck down the marital exemption from their codes in 1984. 

In 2002, Nepal also got rid of the marital rape excemption after its Supreme Court held that it went against the constitutional right of equal protection and the right to privacy. 

Marital rape is illegal in the United Kingdom since 1992 and is seen as a kind of domestic abuse. 

Since the 1980s, many countries have abolished the marital rape immunity through legislations. These include South Africa, Ireland and Canada.

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