Recently, there has been a lot of debate about whether marital rape should be criminalized or not. The Delhi High Court has been hearing petitions regarding the matter and many people are worried that if section 375 of the Indian Penal Code (that protects men who have forced non-consensual intercourse with their wives from criminal prosecution) is struck down, it can be used against men.
Recently, Advocate RK Kapoor, representing NGO Hriday, made certain arguments opposing the criminalization of marital rape. According to Live Law, he claimed that “forcible” sexual intercourse between a husband and a wife cannot be considered as “rape”; at worst, it can only be considered as “sexual abuse”.
“That if Husband has used force or intimidation in the case of so-called marital rape, there are other sufficient provisions in IPC and other Statutes. Sexual intercourse between husband and wife in a marital relationship cannot be labelled as rape and at the worst, it can be called sexual abuse only, which would be clear from the definition of cruelty as defined under Domestic Violence Act 2005,” Kapoor submitted.
Kapoor further highlighted that it cannot be argued that a sexual act in a marriage is an “individual act” and that the institution of marriage will not suffer in case exception 2 (that marital rape is not rape) is struck down.
“This is why Exception 2 has been retained and Parliament has covered such an act of sexual abuse under cruelty and has taken it out of the purview of Rape as defined under S. 375 IPC, and exempted Husband from the severity of S. 376 IPC. Therefore, it cannot be said that Parliament has legalised the act of sexual abuse by husband,” Kapoor submitted.
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