An Analysis of Law on Marital Rape

 Rape is derived from a word “Raptio” which means “to seize” As far as  the meaning of Marital Rape is concerned, it is relevant to note that the Penal Laws of our Country i.e. Indian Penal Code and Cr.PC has not yet it defined and not made an offence,  in case, where wife is above 18 years of age, but by way of judicial interpretation we may define it as “Marital Rape  is committed when sexual intercourse act committed by husband with his wife without her consent or by force or even against her wish.  At this juncture, it is relevant to note that Indian Penal Code do recognise that Judicial Separated husband can commit the offence of Rape with his wife, if she is not the willing/consent Party to do sexual act.

The said issue of Marital Rape has been come into highlight in the wake of recently pronounced two judgments of the High Court in India viz Chhatisgarh and Kerala High Courts.

The Chhattisgarh High Court in the revision petition filed before it in the case of Dilip Pandey & others  v. State of Chhattisgarh, CR.R. No. 177 of 2021, decided on 23-08-2021,  against the order of Additional Session Judge has dealt with the following charges viz:

Whether the husband is rightly prosecuted for an offence under section 376 IPC for committing rape on his wife, the wife in this case being major and his legally wedded wife?

With regard to an offence for Rape under section 376 IPC, the Court after going through the exception 2 to Section376 IPC and held that “ in the present case, the wife is not below 18 years, and moreover, she is  legally wedded wife of the Accused, hence, sexual intercourse by a man in these circumstances, even though against her wish or consent would not come under its purview, and therefore, the accused viz., the husband in the instant case, is discharged from the charge of offence of Rape as provided under section 376 IPC.

Kerala High Court in X v. X, Mat. Appeal No. 151 of 2015, decided on 30-07-2021 has observed that despite the fact that Indian Penal Code, 1860, does not recognise Marital Rape as an offence but it does not prohibit the Court from treating this as an act of Cruelty to grant Divorce or a form of cruelty to grant Divorce

The Court granted this relief after relying upon the Judgment of the Hon’ble Supreme Court of Inda in the case of Samar Ghosh v. jaya Ghosh (2007) 4 SCC 131, wherein the SC has observed that “insatiable urge for wealth and sex of a spouse would also amount to cruelty”.  Hence, Treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape.

So, from the above, it can be concluded that Marital Rape is not an offence recognised under the Penal Code of India but it would be treated as a form of Cruelty, thereby, the Court can grant divorce under the Personal Law of the respective parties.