Exception to Marital Rape
The Chhattisgarh High Court in a key ruling recently said that
marital rape immu-nity in law extended to Section 377 of the Indian Penal Code (IPC),
that criminalised "unnatural sex".
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Section 375 of IPC (rape) does not criminalize non-consensual sex within marriage
if the wife is an adult.
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The exception remains despite the 2013 amendment expanding the definition of rape.
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The marital rape exception is under challenge in the Supreme Court, and the
government supports its retention.
Section 377 IPC & HC Interpretation
- Section 377 criminalized "unnatural sex" (acts against the "order of nature").
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In 2018, the Supreme Court decriminalized consensual homosexuality but retained
the section for non-consensual acts.
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Chhattisgarh HC ruled that if a husband commits "unnatural sex" with his wife, it
is not an offence under Section 377 due to the marital rape exception.
Concerns Over Omission of Section 377 in Bharatiya Nyay Sanhita
(BNS)
- BNS lacks an equivalent provision for Section 377, raising concerns about
protecting men, LGBTQIA+ individuals, and victims of bestiality.
- The Parliamentary Standing Committee in 2023 noted that BNS does not provide for
non-consensual carnal intercourse against men, transgender persons, or animals.
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BNS chapters on sexual offences classify only women and children as victims,
overlooking male and LGBTQIA+ victims.
Legal & Policy Implications
- The Transgender Persons (Protection of Rights) Act, 2019 provides
a maximum
punishment of two years for offences against transgender persons, which is seen
as
insufficient.
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Advocate Gantavya Gulati filed a PIL in 2024 for reviving Section 377; Delhi HC
asked the Centre to decide on it within six months.
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The SC dismissed a similar plea in October 2024, stating that defining offences is
the domain of Parliament.
