Courts continue to differ in views on marital rape

Contradiction arises despite Justice J.S. Verma panel recommendation to make marital rape a crime

Four years after the Supreme Court referred to Justice J.S. Verma committee’s recommendation to make marital rape a crime, besides quoting from decisions of courts across the world that “a rapist remains a rapist and marriage with the victim does not convert him into a non-rapist”, Indian courts continue to take views on marital rape that are the polar opposite of each other. The recent response from courts to complaints of marital rape has been contradictory. When the Kerala High Court backed marital rape as a valid ground for divorce, a court in Maharashtra gave anticipatory bail to a man while concluding that forcible sex with his wife was not an “illegal thing” though she said it left her paralysed. In 2017, the top court, in Independent Thought versus Union of India, refused to delve into the question of marital rape while examining an exception to Section 375 (rape) of the Indian Penal Code which allows a man to force sex on his wife if she is above 15 years of age. However, in its judgment that declared “sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not”, the Supreme Court highlighted that legislative immunity given to marital rape stemmed from the “outdated notion that a wife is no more than a subservient chattel of her husband”.