Indian Penal Code, 1860
Section 376B
repealedSexual intercourse by husband upon his wife during separation
Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine1.
Why this exists
This section, introduced in 2013, carves out a narrow exception to the general marital rape exemption in section 375, recognizing that once spouses are living separately, a wife retains the right to refuse sexual intercourse, and forcing it upon her in that situation is a distinct punishable wrong, even though it is treated less severely than rape under section 376 and not formally labelled 'rape.' It reflects an incremental legal step toward recognizing spousal sexual autonomy, though full criminalization of marital rape while cohabiting remains a subject of ongoing debate and litigation in India. The Bharatiya Nyaya Sanhita, 2023 retains a comparable provision addressing non-consensual intercourse during marital separation.
How courts read it
Courts have treated this as a distinct, lesser offence compared to rape under section 376, applicable specifically to the factual scenario of spouses living separately, whether formally under a judicial decree or simply as a matter of practical separation, with the focus on the wife's lack of consent during that separated period.
Common misconceptions
- Myth: A husband can never be punished for forcing sex on his wife under Indian law.
Fact: While ordinary marital rape while cohabiting remains excluded from the rape definition under section 375, this separate section does criminalize non-consensual intercourse specifically when the spouses are living separately.