Marital rape: Sexual intercourse by man with wife not rape, Centre to HC

The Union government on Monday defended, before the Delhi High Court, the Indian Penal Code provision that says sexual intercourse by a man with his own wife, who is not under 15 years of age, is not rape.

A division bench of Chief Justice G. Rohini and Justice Sangita Dhigra Sehgal was told by the government, through an affidavit, that "exception 2 (to Section 375 IPC) deals exclusively with private affairs of husband-wife based on traditional social structure and hence can't be said to be unconstitutional and in violation of Articles 14 to 21 of the Constitution".

Section 375, which defines "rape" also contains the exception provision which states that the rape law would not apply to assault or sexual intercourse by a husband on his wife who is above 15 years.

The government admitted before the court that "although the age of consent is 18 years and child marriage is discouraged, marriage below the permissible age is avoidable but not void in law on account of social realities. It is submitted that the social, economic and educational development in the country is still uneven and child marriages are taking place."

The affidavit also stated that it has been "decided to retain the age of 15 years under exception 2 of section 375 Indian Penal Code so as to give protection to husband and wife against criminalising the sexual activity between them".

The affidavit of government also pointed out that legal prohibition on marital rape must also be accompanied by "changes in the attitude of the prosecutors, police officers and those in society generally".

The government's response came on a PIL filed by NGO RIT Foundation challenging Indian Penal Code's section 375, saying it does not consider sexual intercourse of a man with his wife as rape.

The plea has said that the law as it stands today amounts to a state-sanctioned license granted to the husband to violate the sexual autonomy of his lawfully wedded wife and is therefore, a violation of the Right to Privacy guaranteed to the wife under Article 21 of the Constitution.

"The exception to section 375 arbitrarily discriminates between women as it keeps the age of consent at 15 years for women who are in a wedlock whereas the same is 18 years in case of any other woman," it stated.