What is Section 375 of the IPC and how does it relate to marital rape?

The issue of marital rape in India has generated considerable legal and social debate, the core of which is Section 375 of the Indian Penal Code (IPC), now re-introduced as Section 63 of the Bhartiya Nyay Sanhita. This section defines rape and sets out the conditions under which it is classified as a crime, but controversially excludes marital rape from its provisions.

This exemption raises critical questions about consent and women’s rights in marriage, reflecting the evolving position of the Supreme Court of India.

Article 375 of the IPC describes various forms of consensual sexual activity, but specifically excludes sexual relations between husband and wife as long as the wife is over 18 years of age. This legal position is based on traditional views of marriage, where consent is often assumed, but has attracted criticism for undermining women’s autonomy and rights within marital relationships.

Critics of this exemption argue that it perpetuates the belief that a woman has an obligation to meet her husband’s sexual needs, thereby violating her bodily autonomy. They argue that this legal framework normalizes violence against women and undermines their agency.

Article 375 of the IPC defines rape as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud, or while she is under the influence of alcohol, deceived or has mental problems. In any case, if she is under 18, it is considered rape.”

In the IPC, rape is classified in the following categories:

Against her will: Any sexual act forced on a woman.
Without consent: Engaging in sexual intercourse without her consent.
Consent obtained through fear: When consent is given under threat of death or harm to herself or someone she cares about.
Identity fraud: If the woman consents, believing that the man is the person to whom she is or considers herself legally married.
Lack of understanding: Consent given when the woman is unable to understand the nature and consequences of the act due to lack of common sense or intoxication caused by the man or any intoxicating substance.
Age consideration: If a woman is under sixteen, consent is irrelevant and any penetration constitutes rape.

Exceptions to Article 375

The law states that a man’s sexual intercourse with his wife, who is over 18, does not qualify as sexual assault.

Amendments to Section 375 of IPC

The Criminal Law (Amendment) Act, 2013, also known as the Nirbhaya Act, was introduced to clarify and strengthen the provisions of Art. 375. This amendment clearly defines various forms of sexual assault, including penetration of any part of the body into the vagina, anus or mouth, and touching of the mouth or private parts as an offense.

Penalty

Generally speaking, unless special circumstances apply, the punishment for rape is imprisonment for a minimum period of seven years, which may extend to life imprisonment, together with a monetary penalty. In aggravated situations, the penalty increases to at least ten years rigorous imprisonment, which may also extend to life imprisonment combined with a fine.

WHAT THE SUPREME COURT OF INDIA HAS NOTED IN ITS JUDGMENTS

The Supreme Court of India has repeatedly considered the issue of marital rape. In 2017, a Public Interest Litigation (PIL) was filed.calling on the court to do so reconsider section 375 marital rape exemption. The petition stated that consent cannot be presumed within marriage and called for marital rape to be criminalized.

In the landmark 2019 judgment in Independent Thought v. Union of India, the Supreme Court addressed the age of consent by striking down a provision that allowed sexual intercourse with a minor wife under 18 years of age.

Although this judgment did not directly address marital rape, it set a precedent for reassessing existing norms regarding consent and marriage.

In 2021, the Supreme Court engaged in the debate on the criminalization of marital rape, expressing concerns about the legal and social consequences of such legislation.

The court decided to refer the case to a larger panel for deeper analysis, reflecting the complexity of legal reforms that must address entrenched cultural attitudes toward marriage and gender roles.

Over the past two years, the Supreme Court of India has revisited the controversial issue of marital rape, specifically examining its exclusion under the erstwhile Section 375 of the IPC. In 2024, the government argued that criminalizing marital rape could destabilize marriages and lead to false complaints, stressing that existing laws already address spousal violence.

Chief Justice DY Chandrachud attended Supreme Court hearings on petitions to criminalize marital rape, wondering whether revoking immunity from husbands could create a new crime. After extensive discussions, CJI Chandrachud withdrew from the caseemphasizing the complexity of the arguments.

The Supreme Court continues to assess the constitutional validity of protecting husbands in cases of non-consensual marital acts, which could significantly change the shape of marriage laws in India.

However, legal experts argue that the exemption violates women’s rights to equality, autonomy and dignity, as recognized in the Justice KS Puttaswamy case.

Supporters say marriage should not mean automatic consent, calling for reforms in line with international standards. A Supreme Court ruling in this case could change the way women’s rights in marriage are treated in India.

As this conversation evolves, it is essential that society engages in constructive discussions that challenge outdated norms and advocate for a justice system that respects the dignity and rights of all individuals.