In India, the concept of marriage is viewed as one of the unions of two
souls, and according to them, both partners have implied consent to have sexual
intercourse whenever they wish after the celebration of marriage. It is,
regardless of one's desires and will. According to the concept of marriage in
India, which was done as a shield to cover up the ugly truth of marriage, some
of the crimes committed in marriage are heinous crimes such as domestic
violence, spousal rape, cruelty, or marriage.
It is a crime committed against a woman inside. The concept of rape and the
legal history of the crime of rape in a civilized society or culture is a review
and definition of what constitutes rape, spousal rape or spousal rape, and the
act of having sexual intercourse with a woman without consent. is. Lack of
consent is the primary definition of various factors and need not include
physical evidence in the storyline. About 10-14% of married women in the United
States have been raped by their husbands. About a third of women report having
"unwanted sex" with their partners.
Historically, many rape laws stated that rape compelled a man to have sex with a
woman rather than his wife, giving the husband the right to rape. As of July 5,
1993, spousal rape was the norm in all her 50 states, with at least one of her
gender codes. Twenty states, the District of Columbia, and local territories
have no immunity from prosecution for a husband's rape. However, 30 states still
allow husband rape as an exception.
In most of these 30 states, there is no need to use force because the wife is in
danger (mentally or physically disabled, unconscious, sleeping, etc.) and cannot
confess. In that case, the man will be fired. Women who are raped by their
husbands are more likely to be raped, often more than 20 times. They are not
only raped vaginally but also raped with oral and anal sex. Researchers
generally classify marital rape into three categories: Forced rape, assault, and
The term marital rape means that a man has sexual intercourse with his wife
without her consent and will, and that consent and will is obtained through all
forms of violence, intimidation, undue influence, and psychological torture. If
so, it happens to be spousal rape, which we call spousal rape. Marriage, as we
know it, is the pure union of two souls. In India, mutual weddings are held to
facilitate sexual intercourse, making it a major source of criminalized heinous
Current Marital Rape Debate
As an advocate, put it before the high court five min before the marriage, it
was a rape, and five min after the marriage it is not a rape. Therefore, this
kind of differentiation is something the court will have to consider to
determine whether it is arbitrary or permitted by the Constitution. The Delhi
High Court is also debating a challenge to the constitutionality of the Indian
Penal Code's immunity for marital rape.
As this is essentially an exception to section 375 of the IPC's definition of
rape, which specifies the conditions under which a non-consensual sexual
encounter qualifies as rape, numerous media outlets have also expressed their
explanations of the situation. The rule does have a crucial exception, which
states that non-consensual sexual activity between a married man and his wife
who is older than 18 would not count as rape. Therefore, the primary IPC clause
that is being contested before the Delhi High Court is this one.
According to a clause, several common law nations that got their start with the
English legal system have marital rape immunity. Therefore, whether the IPC was
passed, the colonial legislation is now being challenged. Since this is the
first time it has been contested in court, it has persisted in our records all
these years. Therefore, the challenge is even being made possible because we
have witnessed a few Supreme Court of India judgments in recent years that have
been short if titled the balance in favor of women.
The House of Lords in the United Kingdom knocked down the exception for marital
rape in 1991. In contrast, Canada introduced a law in 1983. If we look at South
Africa, they introduced one in 1993. Australia introduced one in 1981.
Additionally, the identical clause has been changed in all these nations.
So, in India, this has been the first time when the concept of marital rape
immunity is being challenged in court. The main issue that arises is whether the
court can maintain this immunity indefinitely given the numerous arguments that
were presented to it. There are other valid grounds for maintaining this
What is the future of the marriage as an institution if a wife can sue her
husband for rape? These are some of the questions that are being addressed in
the hearing before the high court. Of course, removing the immunity to marital
rape will destroy the institution of the family as we currently know it.
Therefore, the complainant argued at this hearing that this classification of
marriage as a criterion is arbitrary and violates the right to equality referred
to in Article 14 of the Indian Constitution itself. One of the most important
concepts here is that when a wife marries, she gives her permanent and
Thus, this concept is based on the idea that when a woman marries, she is
obliged to fulfill certain obligations: to give birth, and to fulfill her
husband's wishes. It assumes that a wife has no right to say no to her husband.
So, it is possible that there was a concept prevalent in society when the IPC
was shortened to 2021. They seem to be very outdated concepts and the question
is whether the law should allow it or should the law allow it.
The government's role in this context is because, from the government's
perspective, the Delhi government and the central government have defended the
law and wish to continue immunity from spousal rape. As for the central
government, we believe the criminal review process is ongoing with a commission
set up by the Ministry of Interior.
So while the central government thinks that marital rape should be more
publicized as a sensitive issue and should be discussed more before the courts
decide any way, when we look at the Delhi government, her main argument is that
if the court downgrades the issue to the rape immunity clause, there will be new
crimes. The Delhi High Court should not lift immunity for her spousal rape
because courts cannot create new crimes, which is what the Delhi government
As this clause has been the subject of much debate, the Supreme Court has also
appointed her two barristers, neutral parties, to adjudicate the court in a case
of this magnitude., states can say that protecting the family institution is one
of the reasons why the marriage immunity should be maintained and that
protecting the institutional family is the reason women's rights continue to be
So, this is something that the court will have to necessarily investigate, and
this is important because this is the test that the court will apply to this
situation to balance these rights. Therefore, if the state has a legitimate
interest in a certain issue, such as national security, public order, or public
health, and it wishes to implement legislation that might infringe on those who
hold an individual's fundamental rights. Therefore, the court must determine
whether the state has a compelling reason to uphold an individual's right or to
permit an infringement on that right. In this case, the court must determine
whether safeguarding the institution of marriage may be considered a compelling
reason for the state.
Data On Sexual Offenses Executed Against Married Women
Domestic abuse cases have occurred, as they have in India and other nations, and
they rise during times of lockdown. Although domestic violence is a pervasive
issue, it is exceedingly difficult to quantify and collect any data about it
unless it is registered. According to numerous studies that used data from
accessible statistics around the world, 33% of women-or possibly more-have
suffered violence at some point in their lives.
Numerous domestic violence cases involve the idea of marital rape, which
effectively refers to when a husband coerces his wife into having sex with
him-or, more accurately, against her will-without her consent. Between the years
of COVID-19 and more than 3582 instances of domestic violence were documented.
Most domestic violence cases are reported based on mental or physical abuse,
dowry, engaging in sexual activity without the wife's knowledge or consent
(sexual abuse), matrimonial abuse in violation of Section 498A of the IPC, and
The Domestic Violence Act of 2005 addresses sexual assault as a subset of
domestic violence. According to the Act, this is also referred to as family
violence, domestic violence, or violence against a legally married couple. In
the event of marital rape, only sexual violence-not rape-will be taken into
consideration, and the spouse will be able to carry out a marital rape once
more. Due to the domestic violence act's restriction to solely domestic
violence, the crime of marital rape will not be recognized as rape or as an
offense, which is why we need different laws.
Comparative Analysis Of Various Nations
The concept of marital rape in the United States was that any non-consensual sex
between non-spouses has been perceived as an illegal act, but in 1975 the
martial exception that allowed a man to rape his wife without her consent and
without any fear of legal consequences was established. As a result, we will
also compare marital rape in the United States and India. In 1993, every state
in the U.N. established legislation against marital rape, partly as a result of
the women's rights and equality movement.
According to the United Nations and its states, rape is considered rape whenever
it is committed against a woman's will, whether by her husband or another man.
All states also state that spousal rape is a crime, and many prosecute offenders
as well as rape of unmarried women. We have a slightly different view that
Southern California may not attempt to recharge a spouse's battery unless the
spouse's behaviour is reported to law enforcement within 30 days of the
incident. Some spousal rape cases offer martial arts or personal counselling
rather than court hearings.
The women's movement in the United Nations, led by feminists, pushed for changes
to the legal system in 1970. Laura X was a very powerful woman who consistently
participated as an advisor in the case of John Rideout in 1978, which was the
first instance in which a man was brought before a court of the United Nations
to be tried for raping his then-wife. As even John Rideout's case failed to make
martial rape illegal, Laura X was able to successfully lead a campaign in Oregon
to make it a crime that will result in martial rape becoming banned the
following year, in 1999.
The commonwealth vs. James K. Chretien was the case that, on December 2, 1979,
led to the first-ever martial rape conviction in the United States. In 2003, 26
states still maintain some sort of marital rape immunity while 24 states and the
District of Columbia eliminated it for sexual offences.
Similar laws existed in Tennessee until 2005, when they were abolished. In South
Carolina, husbands must use violence against their wives at a higher degree.
According to the law, if a husband has seriously injured his wife while they are
cohabitating, he may be convicted of raping either his wife or spouse. The ban
was finally overturned in 2005, allowing for the treatment of marital rape as a
different kind of rape.
India is a patriarchal and male-dominated country. Email plays the most
important role in family and work events. They viewed men as a superior
male-dominated country. In India, tacit consent during marriage is considered.
Based on mutual contract material or mutual agreement during marriage. It
expects an exception for spousal or spousal rape.
It can be traced from the ancient Sanskrit text of Manu Smriti, which expected
women's consent. The structure of marriage is the permission of sexual
intercourse between spouses. I would not talk about female approval. And if the
wife denies this status with her husband and there was no concept of consent and
consent to marital rape while mobile phones were legal and endangered the
situation of women in society., think that the wife is not ideal.
slaves and sex slaves, and they were gifted in Book 3. Their own wives were
openly sold in exchange for wealth and kingdom. Post-independence, patriarchal
ideas and notions of privacy persist, especially in matters of marriage.
Since we will assume that the wife always gives her agreement while having any
type of sexual contact, it is assumed that the situation did not improve when
the husband and wife cohabited. However, the only justification for judicial
separation is that a husband cannot be penalised for raping his own wife. Or, to
put it another way, they refuse to pass any legislation on the subject.
Marital rape is not criminalised and has not even been thought of as a crime or
an illegal behaviour in India up until now. According to the current legal
provision, which is included in IPC section 375 clause 2, a man's sexual
activity with his own wife-if she's beyond the age of 15-is not regarded as
rape. It is the only time a married lady has been granted an exception.
In the landmark order the Karnataka high court has allowed the framing of charge
against a husband in a case of marital rape, and marital rape is not yet
remembered criminal offence.
Judicial Decision Or Judicial Stand On Marital Rape:
In India, despite a year-long campaign against the institution of marriage,
today the Karnataka High Court ruled that the institution of marriage grants
special male dominance, special privileges, and licensees to unleash a brutal
beast. They further clarified that "the brutal act of sexually assaulting a wife
against her husband's consent can only be described as rape."
The Karnataka High Court, after investigating the facts of the case, filed a FIR
against the husband alleging rape, and filed charges against the Karnataka
police, suggesting that the wife had filed a complaint with the police. Based on
this, she pleaded guilty to rape against her husband. However, her husband
applied to the Karnataka High Court to seek indictment under Section 376. Based
on Section 376 of the IPC. The Supreme Court made that statement while allowing
this husband to be tried under the rape law.
Karnataka high court also says that "woman and man being equal cannot be made
unequal by exception under rape law. It is for law makers to ponder over
existence such inequalities in law"
Therefore, the high court made it very clear that the husband in this case
cannot seek exemption and protection under section 375 IPC, whereas he must be
tried for rape. This is a very significant judgement from the Karnataka high
court, and they also state that we are not going to discuss the exemption
granted to the husband generally because that is something that the legislatures
should consider, but based on this fact of the case, we are allowing the trial
court to proceed.
Independent Thought Vs Union Of India
In this case the SC's, two-judge read Exception 2 to Section 375 as it
relates to girls under the age of 18. The case took an important step to
protect a girl by making it a crime to have sex with a wife under the age of
18, but the Supreme Court did not address cases where the interests of the
other party were violated. There were no special provisions for doing so.
Children were also present in the game. In this case, the Supreme Court
Local Bank had a unanimous opinion on the matter when it ruled in favour of
the petitioners. It read Exception 2 of Section 375 of the IPC and said that
the whole judgment should be ignored on the issue of marital rape.
As per the current hearing going on in our Delhi high court:
In view of this, Rao contended that the state must show compelling state
purpose for providing Exception 2 to Section 375. Rao added that, in his
opinion, there exists none.
Rao significantly cited the Supreme Court's ruling in Independent Though
Vs. Union Of India in his arguments. In this case, the Supreme Court's two-judge
panel read down Section 375's Exception 2 insofar as it relates to a girl
child under the age of 18.
Since the general issue of marital rape was not before the Court, Rao argued
that the Independent Thought case does analyse Section 375, albeit in the
context of a girl child under the age of 18.
Rao argued that the consequence of the exception is that the permission
becomes useless for the purposes of the act of rape rather than the
statute's explicit statement that the consent is meaningless.
He read out the passage from the Independent Thought that dealt with the
effect of the Exception as follows-
"As a result of the above three circumstances, the husband of a girl between
the ages of 15 and 18 has full freedom to engage in non-consensual sexual
intercourse with his wife, and non-consensual intercourse is criminalized
for rape under the IPC. No liability, sex is not rape," in the sense of
Article 375 of the IPC. Curiously, as Sakshi pointed out before the
International Association, under the IPC, a girl's husband does not
"sexually abuse" his wife, such as when the girl's child's husband assaults
'Do not have the freedom and the liberty to do acts that are not. Any
intention to undermine her humility may be punished under the provisions of
Article 354 of the IPC. In other words, the IPC allows a man to have
non-consensual sex with her wife if she is between the ages of 15 and 18,
but does not sexually abuse her. Adding is not allowed. This view is
surprisingly supported by the LCI in the 172nd report mentioned above.
"The Domestic Violence Act will also apply in such cases and the husband
does not get immunity. There are many other offences where the husband is
either specifically liable or may be one of the accused. The husband is not
given the immunity in any other penal provision except in Exception 2 to
Section 375 IPC.
It does not stand to reason that only for the offence of rape the husband
should be granted such an immunity especially where the "victim wife" is
aged below 18 years i.e., below the legal age of marriage and is also not
legally capable of giving consent to have sexual intercourse. Exception 2 to
Section 375 IPC is, therefore, discriminatory, and violative of Article 14
of the Constitution of India, on this count also".
Rao thus contended that though the Independent Thought judgment clarified
that it did not deal with the issue of marital rape in general, its
observations in the said decision hold the field and that they are his
arguments to criminalize the marital rape.
State Of Maharastra v/s Madhukar Narayan Mandikar, 1990, Sc 207 In this case, the Supreme Court ruled that because Banubi is an unfaithful
woman, it would be unacceptable to allow the property and career of a
government official to be jeopardized by an uncorroborated version of such a
woman who does not keep her fornication a secret. I decided that it was very
dangerous. intimacy with others. Therefore, the defendant was acquitted.
The Supreme Court has held that even a woman of easy virtue is entitled to
privacy, and no one can invade her privacy whenever she pleases. It is not
like you can hurt people. She has the right to protect her person when an
attempt is made against her will to harm her. She is entitled to legal
protection as well. The court reversed the High Court order and reinstated
the Court of Appeals order removing the defendant from office.
Sree Kumar v/s Pearly Karun, 1998 In this case, it was proved that if the wife did not live separately from
her husband and had sexual intercourse ignoring the husband's will, or that
such act did not constitute rape. Therefore, in this case, it was said that
her husband was never guilty of raping his own wife. Kerala High Court ruled
under IPC Section 376A that a spouse does not live independently of her
husband according to a declaration of division or custom or use,
irrespective of the likelihood that the spouse is responsible for better
sex. Decided that the offense does not apply. Half unwilling and without her
Following the Penal Code amendments filed after the NIRBHYA case, one of
Delhi's most brutal crimes, an amendment was submitted to make the
punishment for rape more severe, but the general parameters and the nature
of the crime did not change. Wartime crimes and IPC-mandated marital rape
remained, and there were no laws against them.
Bodhishta Gautum v/s Subhra Chakraborty In this case, the court held that the term rape was not a right to life or
some ordinary human rights issue, but a crime against fundamental human
rights and a violation of the right to life as provided for in section 21 of
the Rape Act. ruling. Act Indian Constitution of India and specific
guidelines for giving compensation to rape victims.
The Chairman, Railway Board Vs Chandrima Das In this case, the court ruled that the term rape was a violation of a
woman's fundamental rights rather than the normal rights we all have. Rape
is therefore not only a crime against the individual woman, but a crime
against society. It has always intercepted the rights of victims and their
cherished rights: the right to life, the right to human dignity contained in
According to relevant legislation, there is no data on reported spousal rape
cases in the absence of legislation. Such reforms are far from reality in a
country like India, where neither the country's parliament nor the Indian
judicial system are willing to close the gap between spousal rape and rape.
According to Indian law and the outlook for Indian society, we have a
male-dominated society and the decriminalization of spousal rape shows the same.
According to the Verma Judiciary Commission, the issue was first addressed in
the 42nd Judiciary Commission report, which said that the exception to the
clause for legally separated husbands and wives should not apply. Two things
were suggested. Non consensual sex, or sexual intercourse between a husband and
wife between her 12 and her 15 years, should not be considered rape, rather the
same section is enacted.
The role of consent and will on the prospects of married women is not yet
clearly defined, but for the sake of correct definition consent and will are
interpreted as the same thing, and court judgments or decisions in this regard
are somewhat ambiguous. Alternatively, we can say that the victim is being given
some form of improper justice by the courts and judicial authorities. Section
375 of the IPC requires a formal definition of a will under this Section 375 or
an amendment to provide a proper definition. This is because it is one of the
most controversial sections of women's married lives due to the increasing
number of cases each day.
Like in a country like India, neither the people who make the laws and
regulations of the country nor the judicial system of the country are prepared
to deal with the reality that the wide gulf between spousal rape and rape is
unprepared there are reforms that can endanger the victim's life.