harpal singh 14 July 2015

Is marital rape a criminal offense under section 376 b?

There is so much confusion regarding marital rape as a criminal offence. A lawyer friend of mine says section 376 B already says that if a man rapes his wife it is an offense...but the section 376 B says that such rape if done on own wife who is living separate is offence. He also says that Supreme court has passed judgement in such cases even if the wife is not living separate. Please clarify.

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6 Replies

Arun Samota (Lawyer) 14 July 2015

Rape means making s*xual relations wit wife without her consent..the consent factor is important here..it is immeterial that she is living saperately or with her husband..

Arun Samota (Lawyer) 14 July 2015

Rape means making s*xual relations wit wife without her consent..the consent factor is important here..it is immeterial that she is living saperately or with her husband..

SAINATH DEVALLA (LEGAL CONSULTANT) 15 July 2015

Physical relation with even the wife without her consent amounts to criminal offence

stanley (Freedom) 15 July 2015

Section 375, the provision of rape in the Indian Penal Code (IPC), has echoing very archaic sentiments, mentioned as its exception clause- “Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape.” Section 376 of IPC provides punishment for rape. According to the section, the rapist should be punished with imprisonment of either descriptttion for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine unless the woman raped is his own wife, and is not under 12 years of age, in which case, he shall be punished with imprisonment of either descriptttion for a term which may extend to 2 years with fine or with both. This section in dealing with s*xual assault, in a very narrow purview lays down that, an offence of rape within marital bonds stands only if the wife be less than 12 years of age, if she be between 12 to 16 years, an offence is committed, however, less serious, attracting milder punishment. Once, the age crosses 16, there is no legal protection accorded to the wife, in direct contravention of human rights regulations. How can the same law provide for the legal age of consent for marriage to be 18 while protecting form s*xual abuse, only those up to the age of 16? Beyond the age of 16, there is no remedy the woman has.

The Ministry of External Affairs and Ministry of Women and Child Development have reported that UN Committee on Elimination of Discrimination against Women has recommended to India interalia, to criminalise marital rape. The Law Commission of India, while making its 172nd Report on Review of Rape Laws, did not recommend criminalization of marital rape by amending the Exception to Section 375 of the Indian Penal Code and hence presently there is no proposal to bring any amendment to the IPC in this regard.

It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors e.g. level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc.