File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Marital Rape in India: A Comprehensive Examination

Marital Rape is also known as spousal rape, is non consensual sex in which the perpetrator is the victim's spouse. It's a form of domestic violence and sexual abuse. Sexual intercourse with one's spouse without consent Despite being a serious violation of human rights, it's not recognized as a crime in many parts of the world, which can make it difficult for victims to seek justice. The unlawful sexual activity carried out forcibly or under threat of injury against a persons will who is beneath a certain age or incapable of valid consent

The impacts of marital rape can be devastating. It can lead to severe physical and psychological harm, including injuries, depression, anxiety and post-traumatic stress disorder. It's important to understand that everyone has a right to consent, and that includes within marriage, no one should ever be forced into unwanted sexual activities, regardless of their relationship status.

Historically many societies didn't recognize marital rape due to the notion of 'implied consent' in marriage. However, this view has changed significantly over time, and martial rape is now widely considered a serious offence. Despite these changes, marital rape is still not recognized as a crime in many parts of the world. This can make difficult for victims to seek justice and protection. Its important to remember that everyone has the right to personal safety and consent, even within marriage. No one should be subjected to any form of violence or abuse.

Legal Implications and laws in India:

In India, the legal framework around marital rape is complex and often contradictory. The Indian Penal Code (IPC) Section 375 defines rape but exempts acts of sexual intercourse by a man with his wife, provided she is not under fifteen years of age. This marital rape exemption is based on outdated notions that marriage provides irrevocable consent to sex and that a wife is the property of her husband. This exemption not only fails to protect women from sexual violence within their marriages but also reinforces patriarchal norms and gender inequality.

The antiquated beliefs that a wife is her husband's property and that marriage grants irreversible consent to sex are the foundation of this exemption for marital rape. This exemption perpetuates gender inequality and patriarchal norms while failing to shield women from sexual assault in marriage.

However, there have been some legal advancements. In 2017, the Supreme court in Independent Thought v. Union of India ruled that the part of Exception 2 to section 375, which excused marital rape of minors between the ages of 15-18, was unconstitutional. This means that the term 15 years in the exception now needs to be read as 18 years.

The Demand for Marital Rape Laws: A Fight for Justice:

Women's rights activists, legal scholars, and victims of marital rape have been driving the growing demand in India for the criminalization of marital rape. They contend that women's basic rights to life, dignity, and bodily integrity are violated by the laws that are in place because they are founded on patriarchal norms.

Additionally, they cite the need for India to change its legal system based on international standards, citing the 150 countries that have made marital rape illegal. In addition to legal reform, the campaign to criminalise marital rape also aims to subvert social norms and attitudes that marginalise women and their rights in marriage.

The Domestic Violence Act of 2005:

It makes reference to any type of sexual abuse in a married or cohabiting relationship that may constitute marital rape. It does, however, only offer civil remedies. In India, victims of marital rape are unable to file a criminal complaint against their offender.

Arguments in favour of criminalizing marital rape:

There are many compelling arguments for criminalizing marital rape, Firstly, it respects and upholds the principle of consent, which should be fundamental in all relationships. Secondly, it acknowledges that violence is unacceptable, regardless of the context. Lastly, it promotes gender equality, affirming that women have the same rights and protections within marriage as outside it.

Arguments against criminalizing marital rape:

There are a number of reasons why criminalising marital rape is frequently raised. Some individuals are concerned that it might be abused in tense relationships for personal grudges. Some contend it might upend the institution of marriage or that concrete proof is hard to come by. However, these viewpoints are frequently criticised for putting society norms ahead of personal freedoms and security.

Various Debates or Discussions about this Issue:

The debate around criminalizing marital rape is ongoing in India. It's a complex issue involving legal, societal, and cultural aspects. Various groups, including legal experts, activists, and NGOs, are advocating for change, while others voice concerns about potential misuse and societal impact. It's a topic that's actively discussed and debated in the public sphere.

Laws guarding Marital Rape in India:

  1. Article 21: The rights to life and the pursuit of a dignified existence. Every citizen has the right to a decent and healthy life free from interference from the government or any other party, as guaranteed by Article 21. If this right is violated, the victim may file a complaint with the court using Article 32 of the Indian Constitution to seek constitutional remedies against the offence.
  2. The Indian Constitution: The Indian Constitution not only protects its citizens from all wrongdoings, but it also makes it very evident what is right and wrong. It grants its citizens rights, but it also bestows on them the corresponding responsibilities. Every citizen owes duties to the government and to other citizens.
  3. The 1860 Indian Penal Code: The primary criminal code in India is the Indian Penal Code, 1860. The extensive act is broken down into 511 sections and 23 chapters. In this context, the pertinent sections of the IPC, 1860 are as follows:
    • Section 319: Hurt A person is considered to be harmed if they inflict physical suffering, illness, or disability upon another.
    • Section 321: Intentionally injuring someone Anyone who performs an act knowing that it will likely cause harm to someone else or with the intent to cause harm to someone else and succeeds in doing so is considered to have voluntarily caused harm to others.
    • Section 322: Intentionally causing great harm Any individual who intentionally causes harm, or who knows they are likely to cause harm, is considered to be voluntarily causing grievous harm if they knowingly cause grievous harm.
    • Section 351: An assault is defined as when a person makes a gesture or prepares to use criminal force against another person.
  4. Remedies available to victim:
    • Under section 498A of the Indian Penal Code, 1860 The term 'cruelty' under this section refers to conduct that may push a woman to commit suicide, cause injury, or put her life or bodily and mental health in jeopardy. A women might classify martial rape as cruelty and file criminal proceedings against her husband as a result.
    • Under Section 354 of Indian Penal Code, 1860 This section can help victims of marital rape because it punishes anyone who uses force to violate a women's modesty.
    • Under Section 13 (1) of Hindu Marriage Act, 1955 If their husband has treated them cruelly, martial rape victims can sue section 13(1) to file a divorce lawsuit against their husband. Martial Rape is a form of cruelty in and of itself.

Legal Position
In State of Maharashtra v. Madhukar Narayan Mandikar the Supreme Court made reference to one aspect of personal bodily security. Tragically, the court has unfairly removed the spouse while denying her autonomy over her own body. In contrast, women who have been raped by strangers are criminalised for that crime but not for marital rape. In this case, it was decided that a prostitute possesses the right to refuse sexual relations in the unlikely event that she is not interested.

Within the case of Sree Kumar vs. Pearly Karun, the Kerala High Court observed that since the spouse was not living separately from her husband under a declaration of partition or under any usage or custom, even if it means that she might be forced to have sex with her partner against her will and consent. In this instance, the spouse moved in with her husband for two days as part of the settlement of the ongoing separation proceedings, and during that time, she was forced to have sex against her will. The spouse was then found not guilty of raping his wife, even though he had done so.

The court seems to have completely conceded that rape during marriage is impractical and that a woman's shame from assault can be avoided by marrying her assailant.

Marital Rape should be made a crime under Indian Penal Code of 1860, For married women who are being raped by their husbands, a provision should be made.

In India, the problem of marital rape is multifaceted, involving long-standing social norms, difficult legal situations, and worries about possible legal abuse. As important as it is to address legal misuse, it is just as important to ensure that legitimate victims receive justice. It is necessary to take a nuanced, balanced approach that upholds the rights of all parties and works to advance justice, gender equality, and women's dignity.

For the sake of justice and equality, we must embark on a difficult but Without a doubt, marital rape violates a woman's right to dignity and well-being; therefore, legislation against it needs to be implemented in order for a progressive nation like India to prosper. Perhaps laws such as the Uniform Civil Code.

A country cannot advance and be deemed superior until men and women are united and accorded equal treatment, with a particular focus on women in all spheres of society.

In order for a nation to be considered developed, both of us must work together to guide it from darkness to light and from death to life. First, the nation's fears of social evils must be moved, and only then can the light shine for the benefit of our country and the entire universe. Necessary journey to create a society free from marital rape. Let's not forget that as we proceed, the change we want to see starts with us, with our attitudes, our willingness to speak up, and our unwavering commitment to demanding justice for every married rape victim.

  • Herring, Jonathan (February 2014). Family Law: A Very Short Introduction. p. 35. ISBN 9780199668526.
  • Gan, K. (September 2004). "Sex a conjugal right". Archived from the original on 12 October 2004. Retrieved 20 April 2005.
  • Mandal, Saptarshi (2014). "The Impossibility of Marital Rape". Australian Feminist Studies. 29 (81): 255–272. doi:10.1080/08164649.2014.958124. S2CID 141826626.
  • Bare act, Indian Penal Code, 1860.
  • Marital Rape, kersti yllo, M. gabriela torres.

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers

Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


How To File For Mutual Divorce In Delhi


How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Increased Age For Girls Marriage


It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...

Facade of Social Media


One may very easily get absorbed in the lives of others as one scrolls through a Facebook news ...

Section 482 CrPc - Quashing Of FIR: Guid...


The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of t...

The Uniform Civil Code (UCC) in India: A...


The Uniform Civil Code (UCC) is a concept that proposes the unification of personal laws across...

Role Of Artificial Intelligence In Legal...


Artificial intelligence (AI) is revolutionizing various sectors of the economy, and the legal i...

Lawyers Registration
Lawyers Membership - Get Clients Online

File caveat In Supreme Court Instantly