Marital rape is considered as atrocity under Section 498A of the Indian Penal Code and doesn't come under that description of rape under Section 375 of the Indian Penal Code. In 2017, PILs were filled in the Delhi High Court by NGOs RIT foundation, All India Democratic Women’s Association and a man and a woman to seek that the exception of Marital rape be struck down and be considered as rape.
The Delhi High Court on 10th January 2021 continued the hearing of petitions challenging the exception to Section 375 of the Indian Penal Code, which exempts Marital rape from the offence of rape.
Adv. Karuna Nundy, appearing on behalf of the NGOs, argued that marital rape as an exception to section 375created a deviation and violated Articles 14, 15(1) and 21 of the Constitution. She also pointed out that this exemption also violated the right to dignity and sexual autonomy of women and there a lot of other victims who approached her clients for protection. Marital rape is only covered under section 498A of the IPC as Cruelty and gives an exemption to husbands committing rape, because punishments for rape are worse than the punishment for cruelty.
The problem then as said by Senior advocate Colin Gonsalves who was representing the woman “How numerous times does rape take place in the institution of marriage and is no way reported? This figure isn't reported or analysed” He also contended that the families and the police authorities also don’t come to help the victim of Marital rape.
The opposition led by Adv. Nandita Rao gratified that Marital rape is a crime of cruelty in India and should come under 498A of IPC, and that the wedded and unattached woman are different under every single law. Cruelty to a wedded woman by her spouse or the spouse’s family is covered by Section 498A of the IPC, which defines atrocity as "any deliberate act of such a type as to drive the woman to self-murder or to induce grave injury or threat to the woman's life, branch, or health (whether internal or physical).”
Adv. Gonsalves, also pointed out that the value system in and woman’s rights have been evolved with the passage of time in colorful countries like United Kingdom, the United States, the European Union and Nepal and reckoned on some judgements as well as transnational covenants to submit an argument in favor that a married woman’s assumed consent was unwarranted. It was also objected that marital rape is a western consept and does not prevail in India, to which, Adv. Gonsalves replied with a report by the United Nations which indicated that prevalence of marital rape in certain Indian states.
The central Government is of the view that Marital rape cannot be made a felonious offence under section 375 because it may lead to destabilize the institution of marriage and this can be an easy tool for draining the misters. The petitioner has challenged the constitutionality of section 375 on the ground that it discriminates against wedded woman being sexually assaulted by their partner.
The matter will be heard again on 11th January 2022.