Marital relationship a valid defence against crimes of sexual violence in India?


The Indian government is unwilling to review the legislative framework on violence against women in particular laws related to marital rape. A member of the Indian Parliament, Haribhai Parathibhai Chaudhary, recently stated in a written statement that marital rape will not be considered a crime for various reasons including social customs and religious beliefs. His reasoning is based on concerns that such changes have the potential of eroding the institution of marriage.

Section 375 of the Indian Penal Code (IPC) creates an exception to the definition of rape in context of sexual intercourse between husband and wife and when such wife at least 15 years of age. The UN Committee on Elimination of Discrimination Against Women advanced a recommendation to remove the exception for marital rape. Moreover, the clause appears to be nonsensical in context of the age of consent provision being fixed at 18 years.

In 2013, the National Crime Records Bureau (NCRB) reported an increasing trend of violence against women in India, specifically rape and sexual harassment. Recent political reforms instituting a death penalty for rape that leads to death or leaves the victim in a vegetative state are unlikely to act as a deterrent. Studies fail to conclusively show that the death penalty reduces or deters crime.

Section 498A of the IPC protects the wife from cruelty including physical and mental harassment. Yet, the offence is punishable at a maximum of 3 years and a fine. Under the Protection of Women for Domestic Violence Act No.43, women may claim civil remedies for domestic violence. This provision fails to provide appropriate criminal remedies for marital rape. Essentially, the law disregards sexual abuse in domestic relationship except when harm is life threatening.

A 2014 study by United Nations Populations Fund (UNFPA), “Masculinity, Intimate Partner Violence and Son-Preference in India” suggests that Indian women are more likely to face sexual violence from a partner in an intimate relationship.

Cultural or religious practices may set the precedence for perpetuation domestic violence but ultimately the political conditions make it difficult for women to act against the government’s less-than-empathetic stand on the issue of marital rape. A number of other countries that have not criminalized marital rape include China, Afghanistan, Pakistan and Saudi Arabia. Legislative change alone is insufficient. What is needed is a change in mindsets.