Can Marital Sex Be Criminal?

July 22, 2023

It is the duty of every thoughtful Indian not to marry. In case he is helpless in regard to marriage, he should abstain from sexual intercourse with his wife.”- Mahatma Gandhi.

Gandhiji is long dead. But, there is a move now to resurrect his views on marital sex and the subject is set to be debated and settled by the Supreme Court of India as reflected in the report published in The Hindu dated July 20, 2023 and excerpted below.

Chief Justice of India DY Chandrachud on July 19 agreed to list a series of petitions seeking the criminalisation of marital rape. Senior advocate Indira Jaising and advocate Karuna Nundy jointly mentioned the case for urgent listing before the Bench led by the Chief Justice. The court said that the case would require a three-judge Bench and agreed to list it early.

The petitions are largely triggered by decisions of Karnataka and Delhi High Courts, requiring an authoritative pronouncement from the Supreme Court. The Karnataka High Court had held that the husband was liable to be charged for rape if he had forcible sex with his wife. Exception Two to Section of the Indian Penal Code decriminalises marital rape and holds that sexual intercourse by a man with his wife, who is not under 18 years of age, without her consent is not rape.

The Division Bench of Delhi High Court had, in May 2022, delivered a split verdict in a separate case on similar issue.

The subject is open to many views. What yours? Your response, in the format given below (Pl scroll down a bit) is welcome.

Over to you!


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By John B Monteiro
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Comment on this article

  • mohan prabhu, Mangalore/canada

    Sat, Jul 22 2023

    It is obvious that the one who files a case of marital rape is the woman who, instead of seeking divorce, wants to get it through filing an FIR which would not only be a vendetta against her husband but an easy ground for divorce. I remember a Canadian case where the court did hold there can be a marital rape if during intercourse which was consensual the woman withdraws her consent to go through with completing the act.

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