Introduction

This article is focused on the emerging concept of brutality on women in the form of marital rape or spousal rape, which is constantly the question in front of courts from time to time. The women have suffered from many inequalities in the world, but depriving an individual of their dignity constitutes one of the most serious forms of wrongdoing. The Indian legal system has been adapting to many new concepts in the law, so why cannot this kind of rape, which has been done for a very long time, be constituted as a crime individually?

Definition Of Marital Rape

‘Marital rape’ or ‘spousal rape’ means when a husband makes his wife have sexual intercourse without her consent.

Legal Status In India

In India, this kind of rape is not criminalised, whereas it is mentioned and used as a defence in multiple cases.

Judicial Pronouncements

Rao Harman Singh, Sheoji Singh V. State

In Rao Harman Singh v. Sheoji Singh V. State [1], the Punjab High Court stated that there is a difference between consent and submission; an act of helpless resignation in the face of inevitable compulsions is not consent in law.

Nimeshbhai Bharatbhai Desai V. State Of Gujarat

In Nimeshbhai Bharatbhai Desai V. State Of Gujarat [2], the High Court of Gujarat makes the differentiation between different types of marital rape, which is battering rape where the wife suffers from both physical violence and sexual violence in a marriage by her husband.

Types Of Marital Rape

• Battering Rape: Where the wife suffered from both physical violence and sexual violence in a marriage from her husband.
• Obsessive Rape: Here it involves brutal torture or unnatural sexual acts on the wife.
• Force-Only Rape: Means the force has been used to coerce the wife for the sexual violence, but this was all just analysis and not enforceable.

Analysis Of Judgments

From the above judgements we can infer that the criteria mentioned to constitute a crime can be applied in the cases of marital rape also. Why do we assume that when women get married, their right to life and living with dignity does not exist, as is observed that forced intercourse or penetration is diminishing the same?

Comparative Perspective

UK Position

In the UK, from where our Indian Penal Code was mainly influenced, in the late 1990s they criminalised the activity of marital rape.

R V. R Case

In the United Kingdom, in the case of R v. R [3], which was heard in the court of kings, the law was changed, where it was made essential that the implied consent is not sufficient; the consent must be given freely and without any influence. It is applicable in marital cases also.

Global Approach

Many other countries have also criminalised the act of spousal rape.

Need For Criminalization

In many developed nations marital rape was already penalised; the question of fact is when India will hold marital rape as an offence.

Societal Impact

Many women are victims of this kind of abuse after marriage; their basic right is not even recognised in our constitution. While we talk about rape, why don’t we include the term ‘marital rape’ and state guidelines for the cases to be mentioned under this so that no innocent can be held guilty?

Awareness And Consent

We as a society failed to respect and keep the dignity of women. Many women in India suffered from marital rape, and they were not even aware of their rights that they could deny the physical relationship even after the marriage; in rural areas it was portrayed as it was their duty to fulfil all the wishes of the husband whether it suited them or not. The concept of consent is still very distant in backward regions. It needs to be recognised as a crime, as when the people know that there is no consequence of their act, it seems natural to them to do it. It will create awareness in society that in the matrimonial rituals their dignity and rights remain upheld, whatever the situation is.

Endnotes:

• Judgements And Orders, Supreme Court And High Courts Of India
  https://judgments.ecourts.gov.in/pdfsearch/index.php
• Judgements And Orders, Supreme Court And High Courts Of India
  https://judgments.ecourts.gov.in/pdfsearch/index.php
• Callan, Jacqui. “When Was Rape In Marriage Made Illegal In The UK?” Richard Nelson LLP, 3 September 2025
  https://www.richardnelsonllp.co.uk/guides/marital-rape-in-the-uk/