India is one of the few countries in the world that is yet to criminalise martial rape. One of the two exceptions under Section 375 of the Indian Penal Code (IPC) exempts forceful sexual intercourse by a man with his wife, from being included in the definition of rape. This issue has been brought to light by the following recent developments:

• The Karnataka High Court upheld the rape charges levelled by a wife against her husband, denying him the infamous exception in the rape law.
• A bench led by Hon’ble Justice DY Chandrachud in a case upheld that the meaning of rape must include “marital rape for the purpose of the Medical Termination of Pregnancy Act and Rules.
• The Delhi High Court gave a split verdict on the constitutionality of the exemption where one Hon’ble Justice held that exception was unconstitutional, while another disagreed.
• Recently, the Supreme Court has issued a notice that from now onwards the court will examine the batch of petitions challenging the exception to Section 375.

In this context, following can be the implications of ensuring legal protection for victims of marital rape in the country: Positive implications

• Fostering constitutionalism: It would guarantee the right to equality and non-discrimination as encapsulated within Articles 14 and 15 (1) of the Constitution.
  • Further, women’s right to withdraw consent at any given point in time forms the core of the woman’s right to life and liberty.
• Promoting dignity: It would take cognisance of the lived realities of hundreds of women who have been subjected to gender-based violence within the context of family and intimate relationships.
• Supremacy of rights: This would put individual and basic rights of married women above the institution of marriage.
• Reduced stigma: Criminalisation would lead to transfer of stigma from victim to the perpetrator.
• Promote awareness: It would reduce lack of awareness of what qualifies as spousal sexual abuses and would change attitude of society, which currently rejects such complaints.
• Establish the spirit of Section 375: The purpose of Section 375 of the IPC is to protect women and punish those who engage in the inhumane activity of rape.
• Enhance India’s image: Marital rape not being a crime is inconsistent with India’s international commitments being signatory to the CEDAW convention.

Negative implications

• Destabilise the institution of marriage: The institution of marriage would crumble under the pressure of criminalisation.
• Lack of reporting: The criminal liability might put more pressure on the women to not report such sexual violence.
• Secondary victimization: The procedure of proving marital rape may lead to secondary victimisation by medical personnel.
• Promote to misuse: It is also prone to extortion or misuse by women, as allegedly seen in the cases of dowry; to settle scores in case of ruptured relations.
• Multiplicity of remedies available: There is pre-existence of sufficient remedies a criminal law remedy under section 498A of the IPC and a civil remedy under domestic violence act, 2005.
• Not gender neutral: Even if the exception is removed, husbands will not be able to use the provision.

However, the recent NFHS-5 survey pointing that nearly one-third of Indian women report facing either domestic or sexual violence indicates the requirement in favour of such a law.