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Criminalization Of Marital Rape: Legal Void in India and the Global Struggle for Women's Rights in Marriage

Marriage, a sacred institution, raises complex questions about rights and consent. Legal definitions of rape, based on the absence of consent, create problems when applied within a marriage. The contentious issue of marital rape remains unaddressed by law in India, making it one of the last 36 countries to not criminalize this form of marital violence. Globally, many jurisdictions do not criminalize marital rape, often due to exceptions in the law for spouses.

This legal loophole, commonly referred to as the "spousal rape exemption clause," leaves victims unprotected within marital bonds. India similarly lacks laws that criminalize marital rape, despite providing safeguards against other forms of abuse.

This absence of legal protection underlines the gap in addressing the entire spectrum of women's rights in marriage. Cases of involuntary sexual activity committed by the husband are left unaddressed, undermining women's dignity and autonomy. When we examine the concept of marital rape, its global prevalence and the specific Indian context, it is clear that protection of women's rights in marriage requires urgent attention.

What Is Marital Rape?

Marital rape refers to an act of non-consensual intercourse or penetration that occurs within a marriage or intimate relationship. It involves one spouse forcing the other to engage in sexual activities without their express and voluntary consent. Marital rape is a violation of the victim's autonomy, dignity and well-being and is considered a form of domestic violence.[1]

Type Of Marital Rape

Marital rape can take many forms and it is important to remember that any non-consensual sexual activity within a marriage is a violation. Here are some types or manifestations of marital rape:
  • Forcible Spousal Rape: Involves the use of physical force or threats to force the victim to perform sexual acts against her will.
  • Battering Rape: This occurs when a sexual assault is accompanied by physical violence or abuse. The perpetrator may use force not only for sexual coercion but also to maintain control and dominance in the relationship.
  • Non-Physical Coercion: Spousal rape can also involve non-physical forms of coercion, such as emotional manipulation, verbal threats, or economic control, to force the victim into unwanted sexual activity.
  • Sexual Assault in the Context of Intimate Partner Violence: In relationships where there is a pattern of domestic violence, sexual assault may be one component of overall abusive behavior.
  • Sexual Coercion: Involves forcing or manipulating a spouse to engage in sexual acts without their freely given consent. It does not necessarily involve physical force, but it can still be a violation of autonomy and consent.
  • Incompetent Spousal Rape: This occurs when one spouse is unable to give informed and voluntary consent due to factors such as intoxication, drug addiction, illness, or other incapacitating conditions.

History Marital Rape In Indian Law

The concept of decriminalization of marital rape came in India from the British 1736 former lord chief justice of England and Wales sir Matthew hale given contractual consent theory

According to Matthew heal a married man cannot be held libel for forceful sexual intercourse with her wife as his theory says that when a woman married to a man, she gives her matrimonial consent to her husband and she cannot revoke her consent after marriage. This consent is permanent. So, the British government added this provision in their law and at that time India was under the control of British government they at added this concept in Indian law also sec 375 of Indian penal code which was made by the Britisher on 6th October 1860 [2]

Sec 375 of Indian penal code defines rape Rape. A man is said to commit "rape" who, except as provided below, has intercourse with a woman under circumstances falling under any of the six following descriptions:
  1. Against her will.
  2. Without her consent.
  3. With her consent, when her consent was obtained by fearing death or injury to her or any person in whom she is interested.
  4. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes him to be another man to whom she is, or believes herself to be, lawfully married.
  5. With her consent, if, at the time of giving such consent, by reason of unsound mind or intoxication, or of administering by him personally or through another any stupefying or unwholesome substance, she is incapable of understanding the nature and consequences of what she consents to.
  6. With or without her consent, when under sixteen years of age. Explanation: Penetration is sufficient to constitute intercourse necessary for the crime of rape.
  7. Sexual intercourse by a man with his own wife, who is not under fifteen years of age, is not rape.
  8. With or without her consent, when under sixteen years of age. Explanation: Penetration is sufficient to constitute intercourse necessary for the crime of rape.

Exception: Sexual intercourse by a man with his own wife, who is not under fifteen years of age, is not rape.

This exception of section 375 which says sexual intercourse with wife whose age is above fifteen years will not be considered as rape. this exception takes marital rape out of ambit of section 375.

Concept Of Marital Rape Is Based On Two Assumptions

Consent in perpetuity (Shaswat Shamati)
According to this concept it is assumed that upon marriage a woman surrender her consent to her husband including consent for sexual intercourse it is based on Matheus hell theory

Exception to sex
It is assumed that when a woman married to a man that woman becomes duty bound to fulfill sexual responsibility. according to this concept the main object of marriage is to have sexual intercourse and produce child. so, in order to have children's sexual intercourse is very important so the wife is duty bound for sexual intercourse and she cannot refuse from it.

Medical Issue In Marital Rape Victim
Marital rape causes physical, psychological and mental health issue among victim some of them are mentioned below:
  1. Sadness
  2. Post-Traumatic Stress
  3. Fear
  4. Low Self-Confidence
  5. Rape Trauma
  6. Sexual Instability
  7. Heavy Bleeding From Vagina
  8. Pain In Instating

Some time because of mental pressure victim commits suicides as nor the law neither their family member will entertained these problem as in India marriage is a sacrament and India have only sec 498A which deals with the cruelty with wife

Criminalization Of Marital Rape In Other Country
Poland was the first country to explicitly criminalize marital rape in 1932. Australia, under the influence of second wave feminism in 1976, was the first common law country to pass reforms to criminalize marital rape. Since the 1980s, several common law countries have criminalized marital rape, such as South Africa, Ireland, Israel, Ghana, etc. In the last two decades, several Scandinavian countries and the Communist bloc have followed suit.

The New York Court of Appeals struck down the Code's spousal immunity exception in 1984. All 50 states of the United States have criminalized spousal rape in 2002, Nepal criminalized marital rape. The Supreme Court ruled that the marital rape exception violates the constitutional right to equal protection of the law and the individual's right to privacy.[3]

International Laws
One of the well-recognized facts is that marital rape is a crime that is highly damaging to women's human rights. Marital rape violates jus cogens laws such as the right to life, liberty, protection from violence, etc. It also violates rights related to the autonomy and well-being of the individual in the family.

These international laws directly or indirectly include the issue of marital rape within their scope. Two of the most important international provisions dealing with this issue are DEVAW and the Beijing Declaration of the United Nations.[4]

In 1993, the United Nations Declaration on the Elimination of Violence Against Women (DEVAW) declared that any violence against women, including marital rape, was recognized as a violation of women's basic human rights granted to them under international law. After its immediate adoption, the General Assembly asked all UN member states to implement a policy for the protection of women as soon as possible. Although DEVAW standards are not binding, they have a very high persuasive value

In 1995, the Beijing Declaration was adopted as an outcome of the Fourth World Conference on Women in Beijing in 1995. This declaration reiterated that in international law, violence against women also includes physical, sexual and physiological violence occurring in the family, thus it will also include rape in marriage.

Marital Rape In India
As per report of nation female health survey 2019 (NFHS 2019) 53% Of the unemployed woman's witness marital rape while 26% of employed woman's also witness it. 12% of man in India consider forced sex as their right after marriage. cases of marital rape are 3%to 43% in different state around 5.6 % women forced by males for physical intercourse and 3.7% woman's face physical violence.

In 45% case of physical violence sexual violence is also there but complain are only filed under sec 499 of Indian penal code. forced sex is the biggest reason for domestic violence in India. marital rape in India still considered as a domestic violence and no legislation is there in India but considering marital rape as domestic violence

In 2015 RTI foundation question the constitutionality of marital rape before the supreme court of India the supreme court of India asked the legislation about their view on its Indian parliament given his view in form of affidavit and said "criminalization of marital rape will have bad effect on Indian society [5]

In 2017 all India democratic woman's association and Khusbu saifi filed a petition The Delhi High Court delivered a split verdict on the criminalization of marital rape in the country. Justice Rajiv Shakdher struck down the existing law as unconstitutional, saying that the right to withdraw consent is at the heart of women's right to life and liberty. Justice C. Harishankar rejected the plea to criminalize marital rape, saying the legislature must amend the law as the matter "requires consideration of various aspects including social, cultural and legal".

In late 2022, a Dalit activist, Ms. Ruth Manorama, filed a fresh petition in the Supreme Court challenging the marital rape exemption. On 9 January 2023, a bench comprising Chief Justice D.Y Chandrachud and Justice P.S Narasimha struck down these petitions and posted all of them for hearing on 21 March 2023.the supreme court of India didn't criminalized it.but Chief justice of India given his statement in this case " the right to say no to sex should be there even after marriage

J.S Verma Committee
After Nirbhaya rape case which was one of most brutal rape case of India. J.S VERMA committee was formed in order to review the criminal laws reform of India this committee given many suggestions. criminalization of marital rape is one of suggestion given by the committee but the government of India ignored this suggestion . His reasoning was that "the whole family system will be under more pressure and the committee may be doing more injustice".

Moreover, she believed that sufficient remedies already existed, including Section 498A of the Indian Penal Code, the Protection of Women from Domestic Violence Act, 2005 (PWDVA, 2005) and various other personal laws dealing with marriage and divorce.[6]

Indian Constitution
Section 375 of the Indian Penal Code (IPC) deals with the offense of rape. Exception II of Section 375 IPC decriminalizes rape by husband on wife. The right to equality and the right to life as enumerated in Article 14 and Article 21 of the Constitution of India are violated in circumstances of marital rape. Article 14 of the Constitution of India guarantees to every person equality before the law and equal protection of the laws.

The aforementioned legal protection has been further strengthened by Article 15, which places a greater degree of control on the State to ensure that its people are not discriminated against on the basis of caste, sex, race, place of birth or religion. Any disparate treatment of a person, in this case rape victims, must be justified by an intelligible difference that is somehow related to the goal the law seeks to achieve.

The right to sexual autonomy, bodily integrity and the established right to reproductive choice includes the right not to be raped under Article 21. The State has also not presented any reasonable objective in line with the status and rights of women in the 21st century. , which is achieved by discriminating against women raped by their husbands versus women raped by men, not their husbands.

By providing a different/separate punishment for the rape of a husband on his estranged wife than the rape of any woman by any man, the law discriminates against married women who are "separated" from their husbands. A man is a man; an act is an act; rape is rape, whether it is committed by a man "husband" on a woman "wife"1. The institution of marriage should not, cannot, and should not be understood to grant any uniquely masculine privileges or license to unleash an evil beast.

The institution of marriage is given far greater priority than the dignity of a woman.[7] Even if we accept that there was a state interest in protecting the institution of marriage, treating non-consensual sex in marriage as lawful and the consequent harm it causes to the victim is in no way proportionate to such an interest, if it exists. Rape is a horrific crime that has numerous consequences including mental trauma and adverse health outcomes. It would be arbitrary to decriminalize marital rape on the basis that by entering into marriage a woman consents to a permanent sexual relationship from which she cannot withdraw.

Also, the status of marriage does not automatically mean the granting of consent to sexual intercourse. The cruel act of sexually assaulting a wife without her consent cannot be described as rape if it is committed by her husband2. The marital rape exception (MRE) violates the wife's right to consent to marital sex. It places the privacy of marriage on a higher pedestal than the privacy and dignity of the individual in marriage3. The wife's consent should in no way be implied by the relationship between the accused and the complainant.

The nature of the inquiry into whether the complainant consented to the sexual act is not affected by the relationship between the accused and the complainant. The argument that consents was implied by the relationship between the accused and the complainant is completely absurd and should not be accepted by the honorable court.

Marital rape is one of biggest issue in India as the the concept of marital rape is a British country concept and now the British countries also changed their law so Indian should also change their laws regarding marital rape. in many cases supreme court of Indian supported the criminalization of marital rape but the parliament never favored this in order to maintain social balance but this is violation of human right.

As the Indian constitution guarantee every person have right to life and personal liberty so when a man committee marital rape violate woman's right. right to life and personal liberty

  • Constitution Of India 1950
  • Indian Penal Code 1860
  1. Available at last visited at 23rd December 2023
  2. Available at last visited at 25th December 2023
  3. Available at last visit 24th December 2023
  4. Available at last visit 24th December 2023
  5. Available at last visited at 20th December 2023
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