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Silent Suffering: The Legal Battle Against Marital Rape in India

Recently, while denying bail to the mother-in-law of the complainant Hon'ble Justice Dinesh Joshi of Gujarat High Court has said "A man is a man, an act is an act; rape is a rape; be it performed by a man, the 'husband', on the woman, 'wife'. Finally! Someone said it out loud. Despite the progress that we have seen in the Indian laws for women and all the promises made for the protection of women, still according to the National Family Health Survey approximately around 12% women are forced to do sexual act or sexual intercourse with their husband against their will and wish. It is disheartening to see India as a successful nation is still lacking behind providing justice to the married women of our nation.

Marital Rape: The harsh truth behind those four walls

Justifications heard and given behind not criminalizing marital rape in India are Firstly, the unnecessary lessons to Indian women to not to go against their Husband's will, furthermore the uncalled-for presumption for two adults getting married to have a sexual intercourse and lastly the unreasonable remedy of marital rape "domestic violence" as the name suggest domestic, a private matter of a family in which the court must not intervene.

In today's world almost every country recognizes unwanted sexual act between husband and wife as a crime, whereas in India there is exception on this which is Section 375(2) of the Indian Penal Code, 1860. This section pertains to Rape and sub-section is exception to rape which states that sexual act or sexual intercourse by a married man with his wife, not under the age of 15 will not be considered as rape.

In the case of Independent Thoughts vs. Union of India, the Hon'ble Apex court has raised the age limit from 15 to 18 now this provision covers that a husband who has sexual act or sexual intercourse with this wife who is above the age of 18 years will not be considered as Rape. Therefore, Marital Rape is still not a crime in India. Out of 36 countries India is one who have not criminalized marital rape.

According to NFHS- 2019, 53% of the unemployed women witness marital rape while 26% of employed women also witness it. Therefore, it is irrelevant to the husband the degree of dependency by the wife on the husband. There are 12% men who think forceful sexual intercourse is their right.

Jurisprudence behind Marital rape laws:

Understanding the jurisprudence behind marital rape is a complex subject as the laws and their interpretation evolve with time and need of the society. Historically, many jurisdictions did not recognize marital rape as a crime but then with the evolving times, many have taken action and has made laws for it. Evolving societal attitudes and a deeper understanding of individual rights have prompted legal reforms to recognize that marriage does not imply a blanket consent to sexual activity.

International human rights instruments, such as the convention on the Elimination of All forms of Discrimination against women, have had a major impact and has made many nations to recognize marital rape as violation of human rights. But then when it comes to India it is a secular country where its citizen lives by their customs, religious beliefs, traditions which is coming in the way of criminalization of marital rape as a much-debated issue and eventually as a challenge. The jurisprudence of marital rape often intersects with family law, including divorce proceedings, as allegation of marital rape are going to impact these areas.

Types of Marital Rape on the basis of the degree of their seriousness:

Sexual coercion by non-physical means: Under this the wife is repeatedly made to realize and fulfill her duties towards her husband which is to indulge in sexual intercourse. It can also be threats like that of divorce. This one is not so serious with comparison to that of physical force.
  • Obsessive Rape: Under this type the wrongdoer is obsessive, is an addict to sex and his actions in this relation are violent. This type is the most brutal type.
  • Force only Rape: In this type force is only used primarily to coerce sex, here violence occurs predominantly just for sexual intercourse and only to the degree of satisfaction of sexual urges.
  • Battering Rape: Psychological, verbal, emotional, and physical abuse become part of the process, when beating and the trauma are combined with rape it is termed as battering rape.

Marital rape the subject around the Globe:

Countries like Brazil, Austria, UK, Canada and many more has criminalized Marital rape some have made provisions in the existing laws and some have made new acts all together to protect married women. Every country mentioned has so or the other punishment for the offence be it imprisonment for one year to imprisonment for twenty years. These countries have understood and realised the need of evolving society and has made the required changes to protect the women of the nation.

A national survey found that 10% of all sexual assault cases reported by women involved a husband or ex-husband attacker. Article 2 of The Declaration of the elimination of violence against women includes force as well as penetration by any object, even if it is of a slight degree. The intention behind this provision is to give the benefit of doubt to the victim and not to the criminal.

In 1995, a resolution was passed in Beijing during the Fourth World Conference on United Nations Women's Conference in Beijing Declaration and Platform for Actions where it was stated that women have the right to refuse sexual demands by her husband. It was also mentioned that violence against women under international law includes "physical sexual and psychological violence occurring in the family including marital rape.

The United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) stated and this sort of violation against women violates the basic principle of equality of rights and human dignity. The committee in the year 2017 also made a recommendation to India to remove the immunity to marital rape.

Justifications against Marital Rape:

  • Sex-role socialization theory: This theory differentiates males and females according to their gender and the general behavior connected to their gender. Men are considered to be commanding, authoritative, and dominating, while women are considered to be gentle. Justification is made with the general behavior attached to a gender.
  • Social constructionism theory: This theory runs on the lines of patriarchy and justifies acts as a way of long-gained power that men have over women whom they marry. Laws are considered to be made in favor of men so that men can use their wives as property.
  • Marital unity: After marriage, the husband and the wife are considered to be a single unit, and the identity of the women merges with her husband.
  • Less serious: Marital rape is considered to be less serious in comparison with non-marital rape.
  • Possible abuse: Marital rape criminalization is seen as forming chances of misuse of the laws by wives with intentions of revenge and causing suffering to their husbands.

Marital rape was legalized in the year 1736, during that year Matthew Hale former Chief Justice of England and Wales came up with the Contractual Consent Theory which stated that no man can be found guilty for marital rape he said that because in marriage wife gives a matrimonial consent to her husband which she cannot deny or forbid from after marriage. But in 1991 England criminalized the offence of marital rape. All major political parties of India still have an orthodox thought about marital rape.

The concept of exception of section 375(2) which is also known as marital rape exception is based on two assumptions which is consent in perpetuity and expectation of sex. Consent in perpetuity means Shahswat Sahmati which means that it is assumed that upon marriage, a woman surrenders her agency to her husband, including when it came to consent for sexual intercourse and in the latter assumption it is assumed that a woman in marriage is duty bound to fulfill sexual responsibility because the main aim of marriage is reproduction for which the husband and wife will have to indulge in sexual acts.

Laws/ Remedies available for marital rape:

Only resort available to the women is Judicial Separation on the cost of her being abused and her being victim of such a heinous crime. Domestic Violence Act along with Section 498A of the Indian Penal Code, 1860 is a remedy available for marital rape which considers marital rape to be an offence under the said act which therefore, provides a lesser term of punishment than an offence of rape.

The piece of this legislation is away to reach to the end goal of criminalizing marital rape. It is true that there is a remedy but then while providing the above-mentioned remedy the nation has failed to understand the degree of the offence because when it comes to punishment for cruelty under the Indian laws the punishment is three years with fine but then punishment for rape is imprisonment for not less than ten years which may extend to imprisonment for life. Therefore, when the when marital rape is added in the concept of cruelty, it is not considered as rape technically because rape has different punishment to that of cruelty, hence the remedy as of now is not fully justified.

Constitutional validity of Section 375(2):

Marital rape is violation of promising fundamental rights guaranteed under the Indian Constitution that is Article 14 and Article 21 which is Equality before law and Right to life and personal liberty respectively. Men lives by the old and shallow concept of Patriarchy and think that their wives are their slaves, their property they fail to understand and realise that women too have their Fundamental Rights, their privileges given to every citizen of India but because of the shallow and old idea of patriarchy the very own married Indian women are being deprived of the privilege as they are being discriminated on the ground of their marital status as there are laws for rape but not for marital rape.

The ambit of Article 21 is huge and it also includes the right to live a dignified life which is being violated when the women of our nation have to face such abuse at their own house. The minister of state for home affairs in 2015 stated that the concept of marital rape cannot be suitably applied in the Indian context due to factors like level of education, illiteracy, social customs and values, and most importantly the mindset to treat the marriage as a sacrament but does this give a green flag on the fact that women are being abused, exploited, are not safe at their own homes, violation of their fundamental rights? In the case of Bodhisattwa Gautam v. Shubhra Chakraborty, the Supreme Court that it is a crime against basic human rights and is also violative of the basic Fundamental Rights.

Further, in the case of Bhodhisathwa Gautam vs. Subhra Chakraborthy (ibid), Supreme Court held that a married women also has the right to human dignity, right over her own body and right to privacy, getting married does deprive them on these rights and cannot be taken away from them if they are married.

In the case of KS Puttaswamy vs. Union of India (Aadhar card case) the right to privacy was considered to be a fundamental right within the ambit if Article 21 which also includes the ability to make intimate decisions mainly focusing on one's sexual or procreation nature and decisions in respect of intimate relations.

Marital rape is not only violative of fundamental rights like Article 14 and 21 but also of a fundamental duty which is Article 51A (e) of the Indian Constitution which states that is the duty of every Indian citizen to condemn the practices that derogates to the dignity of women.

Law Commission recommendations:
The 172nd Law Commission Report made the recommendation that there is a need for substantial changes with regard to rape. Particularly, with marital rape it was recommended that the exception that is Section 375(2) and Section 376 A of the Indian Penal Code, 1860 should be deleted and the ambit of physical violence be increased and force sexual intercourse between husband and wife be included in it.

The 42nd Law Commission Report which came much before the abovementioned report recommended that prosecution of this offence is very rare and the offence of marital rape be not called rape at all in technical sense and the punishment for the same may be provided in a separate section. Justice Verma Committee also made a recommendation that removal of the exception under section 375(2) to marital rape.

Judicial stand on Marital Rape:

In the case of Nimishbhai Bhartibhai Desai vs. State of Gujarat (2018), one of the issues before the court was whether a husband who is forcing his wife to indulge in oral sex would be considered as committing rape on the wife and will he be liable for the punishment for rape under section 376A of the Indian Penal Code?

To which the court the hon'ble High court of Gujarat held that there are various factors which are being considered by the politicians that criminalizing marital rape will shake the holy institution of marriage and also women can misuse the provision against their husband.

The court further held that marital rape can be unseen by law as it is equal to rape committed by a husband upon his wife so if any husband assaults his wife he would be punished under the Indian Penal Code, 1860 for the offence of assault his wife but if the same husband forces his wife to indulge in sexual intercourse, he would be liable for the offence of assault only under valid marriage and not for rape.

In the case of Sree Kumar vs. Pearly Karun, the Hon'ble High court while mentioning the facts of the case held that even if the wife was subject to forceful, without her will and consent sexual intercourse due to which she has been living separately from the husband, then also it will not attract the provision of rape and the husband cannot be held liable for section 376A of IPC.

In the case of Dileep Singh v. State of Bihar, the victim made the contentions that the accused who is the appellant in the mentioned case has forcibly raped her and later promised her to marry her to which she agreed and to have sexual relation with him later, she became pregnant and then she revealed this to her parents, and her father tried to get her married to the appellant to which he failed, and she was constrained to file a complaint.

The trail court and the High Court convicted the accused but the sane was set aside by the Supreme Court mentioning that consent given by a woman believing the man's promise to marry her would fall within the expression 'without her consent only it is proven that the from the very beginning the man never intended to marry her and the promise was mala-fide. When the prosecutrix had taken a conscious decision to participate in the sexual act on only being impressed by the accused's promise was not false from its inception with the intention to seduce her, then section 375(2) of the Indian Penal Code, 1860 is not attracted and established.

In the landmark case of Independent Thought vs Union of India (ibid), the major outcomes of the judgment were that the offence of Child Marriage was criminalized by enacting the Prohibition of Child Marriage Act, 2006 which states that rape of any minor girl that is girl under the age of 18 will be rape and her marital status will be irrelevant at that point of time, but then the change was not made in the Indian Penal Code, 1860 which says that the age of 15 will be considered if the husband is forcing his minor wife for sexual intercourse. Therefore, A guideline was issued for the age of 15 to be changed with the age of 18 years.

It was further held that the unnatural distinction is contrary to Article 15(3) of the Indian Constitution and opposed the very essence of Article 21. The ratio given by the court behind the direction of striking down the exception 2 of the section 375 in relation to girl child below 18 years of age, the court mentioned that it is arbitrary, tyrannical and not fair, just and reasonable as it violates the fundamental rights of the girl child and the said provision is contrary to the POCSO Act.

The judiciary seems to have completely made peace with the myth that to its utmost convenience that the rape within marriage is not possible or that the stigma of rape of a woman can be salvaged by getting her married to a rapist. The question which arises out of this is that how can Supreme Court ignore such a huge violation of fundamental rights of a married woman, the right to her body and to protect her from any abuse and to protect her dignity?

Actions taken for criminalizing marital rape and the current scenario:

With the need of the society and understanding the seriousness of the issue many people, social activist has come forward in groups with an aim to get the marital rape criminalized. It is the opinion of a large section of the society that marital rape is as heinous as murder, culpable homicide or rape per se and not having laws pertaining to marital law is a huge discrimination between married and unmarried women, therefore, a Public Interest Litigation is filed in the hon'ble Delhi High Court by All India Democratic Women's Association, foundations, forum to engage men and many more.

The major contention of the petitioner was to declare the exception as unconstitutional. While the respondents to the petition, was NGO- Men's welfare Trust representing the victimized by the alleged large no. of men at the hands of women who file false marital rape case. The respondents also mentioned a stat which said that almost 62,000 men commit suicide every year which is more than women with false rape charges being the reason.

The PIL had sought that there should be clear guidelines for registration of cases related to marital rape under framed guidelines and laws, so accountability, responsibility and liability of the authorities concerned can be fixed. But unfortunately, the High Court did not entertain the petition as the court was of the view that this comes under the ambit of legislature and not Judiciary.

Meanwhile, in 2017, A case was filed by a wife against her husband for multiple offences under the Indian Penal Code, 1860 which included cruelty, making threats of causing harm and rape along with abusing daughter to which he was charged with sexual assault under the Protection of Children from Sexual Offences Act, 2012. Soon after the complaint was filed the husband, husband filed a Writ Petition in Karnataka High Court wherein he pleaded to invoke marital rape exception and the charges against him maybe dropped which was rejected by Justice M. Nagaprasanna the court relied on Justice Verma Committee which recommended deleting the marital rape exception.

The court held that the exception was regressive and violated the right of equality by treating the wife as subordinate to her husband. It is pertinent to mention that the court mentioned that 'no exception under law can be so absolute that it becomes a license for the commission of a crime against society.'

The Hon'ble Supreme Court bench comprising of Chief Justice of India Justice D.Y. Chandrachud and Justice P.S Narasimha have clubbed all the petitions relating to marital rape and yet to decide the fate of the exception to rape that is marital rape.

Effects of criminalizing Marital rape:

The rate of crime will definitely increase but then the women will be protected because their husbands will have the fear of being punished because their criminal acts which will eventually lead to decrease in the rate of crime. The nation will be shown that the criminalization of marital rape will have a deterrent effect on the prospective rapist husband and will serve as to recognize rape in marriage as a criminal offence. It will be made clearly that expression of love through sexual intimacy is not as same as forced sexual acts. The misconception of implied consent of a woman to have sexual intercourse with her husband will come to an end.

No doubt criminalizing will only serve as an increased burden to the already overburdened legal system but then we need to ask ourselves that is this reason a valid reason for what married women of our nation going through? Can we not think or implement some other ways to lower the burden? Is the burden on the legal fraternity above the protection of women of our nation and their fundamental rights of life with dignity, life without discrimination, right to privacy and many more rights guaranteed under the Indian Constitution.

The marital rape exemption is a remnant of British Colonial Law. England overturned the exemption in 1991, but India is still dealing with the exemption ramification in 2023. 150 countries have criminalized marital rape. State says that it can't interfere in the institution of marriage because it is private matter but let's say there is an instance where wife is subject to cruelty or domestic violence then will the state not interfere in that instance, the state will because these two aspects are something which have already been criminalized so the state will have to take the required steps and provide legal redress to the women, but the concept of marital rape is not yet criminalized therefore, it is being taken lightly right now. Therefore, it is the need of the hour. Rape victims face issues like Sadness, Post-traumatic stress, fear, Low self-confidence, trauma, sexual instability.

It is said that when a woman comes to know that she will have to indulge in sexual acts it comes as shock for her. It affects women's health mentally and physically, women in our country since their birth are taught to make compromises, settle for less and never go against their husband even when she is being traumatized for days, weeks, months or years. Rape has a very bad and harsh effect on any victim of the offence. Imagine, it happening with someone who with all her trust and courage has left her everything and has come to live with someone, and that someone is committing rape on her every night.

We don't need to differentiate between rape and marital rape, if a victim of rape gets justice and the offender is convicted, then why not a married women be served justice and why not her husband be punished? Article 14 and 21 under constitution of India are provided to all irrespective of gender so, those rights should not be violated even not of married women. Forced sex is the biggest reason for domestic violence in India. Out of 10 domestic violence case 8 has the complaint of forced sexual intercourse too but then the action is only taken according to section 498A (cruelty).

Forced sexual intercourse is still considered as domestic violence and only monetary compensation, judicial separation like remedies are given in the name of justice. There is a need of clear guidelines, registration of cases and if the offence of marital rape is proven then it shall be considered as a ground for divorce. The concept is needed to be addressed both socially and legally to spread the awareness. The society is not rational to the concept of marital rape and so are not the laws. Women of our nation are being exploited. Justice needs to be served.

  1. The Indian Forum: A journal magazine on contemporary issue
  2. Marital Rape: A heinous crime by the times of India
  3. All you need to know about marital rape
  4. Social Science Research Network
  5. Marital Rape an Unaddressed Stigma
  6. Case laws from IndianKanoon

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