Chhattisgarh HC Extends Marital Rape Exception to IPC

Why in the news?

The Chhattisgarh High Court extended the marital rape immunity to Section 377 of the IPC, impacting the legal recourse for non-consensual sex in marriage. The omission of Section 377 from the BNS raised concerns over legal protection.

Chhattisgarh HC Extends Marital Rape Exception to IPC

Court’s Ruling on Marital Rape Immunity:

  • The Chhattisgarh High Court extended the marital rape immunity to Section 377 of the Indian Penal Code (IPC), which criminalizes “unnatural sex.”
  • Section 375 of the IPC criminalizes rape but exempts a man from prosecution for non-consensual intercourse with his wife who has reached the age of majority.
  • Section 377 outlaws “carnal intercourse against the order of nature” but did not originally include the marital rape exception, leading to legal debates about its applicability in non-consensual sexual acts within marriage.

Marital Rape Exception and IPC 377:

  • The court ruled that Section 377, following the Supreme Court’s 2018 decriminalization of homosexuality, cannot be applied to a husband having non-consensual sex with his wife, as marital rape remains exempt under Section 375.
  • This ruling affects the use of Section 377 as a legal recourse for women facing non-consensual sex in marriage, as it cannot be invoked alongside domestic violence

The Issue of Section 377’s Omission in BNS:

  • Section 377 was omitted from the Bharatiya Nyaya Sanhita (BNS), leaving no specific provision for non-consensual sexual offences such as bestiality or those involving men, LGBTQIA+ individuals, or transgender persons.
  • Experts raised concerns that the absence of this provision in BNS limits legal protection against sexual offences involving various genders.
  • The omission has raised issues, especially as BNS provisions primarily focus on women as victims and male perpetrators in crimes like rape.

Marital Rape: Key Points

  • Definition: Marital rape is forced sex or sexual assault between spouses; it is not a crime in India.
  • IPC Section 375 (2): Exempts a husband from prosecution for sex with his wife aged 15 or older.
  • BNS: Retains immunity for husbands; age of consent raised to 18 years following SC judgment in Independent Thought vs UoI (2017).
  • Domestic Violence Act, 2005: Women can seek relief for sexual abuse and humiliation.
  • Judicial Rulings:
  • Independent Thought vs UoI (2017): Struck down Exception 2 for wives aged 15-18.
  • KS Puttaswamy (2017): Emphasized sexual autonomy.
  • Bombay HC (2023): Consensual sex with minor wife is rape.
  • MP HC (2024): Unnatural sex with wife not considered rape.
  • Government Stance: Ministry of Home Affairs opposes criminalizing marital rape.