If no permanent injury has been inflicted, nor malice, cruelty nor dangerous
violence shown by the husband, it is better to draw the curtain, shut out the
public gaze, and leave the parties to forget and forgive.
Sexual violence in marriage has a history as long as the institution of marriage
itself. But for the millennial generation, marital rape like other forms of
sexual assault is considered a private trouble and not a public issue. Sadly,
sexual violence against women and girls still remains deeply entrenched and
politicized around the globe. Perhaps no other allegation of crime exposes a
woman's credibility to such intense hostility and imposes the penalties of shame
and stigma to a more severe degree than alleging rape.
Such extraneous points of
critique not only help in creating an atmosphere of shame and stigma associated
with sexual violence, but are also seen as crucial in creating an affirmative
defense and inevitably building the case against rape victims.
In recent times, India's rape culture
has often found itself under the
international media spotlight. Latest controversies include the 2012 Delhi gang
rape, 2017 Unnao rape case
, 2018 Kathua rape case, and many others which sparked
global outrage and drew attention to India's outdated laws that were failing to
protect women from sexual assault. Amidst the sea of problems that surround
sexual violence in India, one prominent but still unresolved issue is the legal
system's continuous recognition of the legal immunity bestowed upon men who rape
Concept of Marital Rape
The definition of rape as defined under Section 375 of the Indian Penal Code (IPC)
includes all forms of sexual assault involving nonconsensual intercourse with a
woman. So in short, Rape is an offence which is violative of a woman's life,
dignity and self-respect but when it occurs within the four walls of a
matrimonial home, it reduces the woman to the status of an object used merely
for sexual gratification.
Marital rape can be done by the utilization of force solely. A person may use
physical force, threat of force on his spouse or to any other person, or implied
harm based on prior assaults causing the woman to fear that physical force will
be used if she resists. It is basically a non-consensual act of violent
perversion by a husband against his wife where she is physically and sexually
Marital Rape can be in the form of Forced Only Rape
where the husband uses
threats and violence only to the degree necessary to coerce his wife to have
sex. The second one comes in the form of Battering Rape
assault along with rape and other forms of physical violence are combined and
the third is called 'Obsessive Rape' where the abuser seems to be a sadist
and a nymphomaniac and therefore the act in itself is violent.
In many countries including India, the offence of marital rape has not been
sufficiently accounted for in the law. The law does not punish rape within
marriage if the woman is above fifteen years of age. Forced sexual intercourse
is an offence only when the woman is living separately from her husband under
judicial separation/custom. It must also be remembered that situations of
marital rape occur within the confines of the home, and therefore there are
often no witnesses to the crime.
History of Marital Rape
Historically, the term rapio
, means 'to seize'. Rape is, therefore, forcible
seizure, or the ravishment of a woman without her consent, by force, fear, or
fraud. Rape can be viewed as an act of violence on the private person of a
woman, an outrage by all means and the ultimate violation of the self of a
woman. The Supreme Court of India has aptly described it as 'deathless shame and
the gravest crime against human dignity'.
The Patriarchal framework that administers families had constantly considered
women as an unimportant property of her spouse or guardian. So rape was
considered as theft of ladies and wrong against a spouse or guardian. This
belief system impacted the legislatures in disregarding offense of spouse rape
by giving it shield of marital, right of the spouse and by this they considered
that ladies cannot protest for sexual satisfaction with her better half as they
have no will over her own sexuality. This discernment has degraded women's'
entitlement to uniformity and equity.
For centuries politicians and judges claimed that marital rape did not exist
within the law and as a matter of public policy could not occur. For example, in
2013, in the case of Mandy Boardman, recalled that her husband, drugged and
raped her over a three-year period. Boardman's case raises important
questions about the role of law in the prosecution of rape as well as how
familiarity or family remains an embedded feature in the mitigation of sexual
Rape is not only savagery against ladies but rather a grave infringement of a
person's basic ideal to life and individual freedom. Connection amongst casualty
and culprit does not transform it. Social disgrace associated with marital rape
as a smothered women's voice against her husband, who uses his preferable
position over break her trust and individual dependability. Today there are many
countries that have either enacted marital rape laws, repealed marital rape
exceptions or have laws that do not distinguish between marital rape and
These countries include Albania, Australia, Belgium, Canada,
China, Denmark, France, Hong Kong, Ireland, Italy, Japan, New Zealand, Norway,
Philippines, Scotland, South Africa, Taiwan, Tunisia, United Kingdom, the United
States, and recently, Indonesia. The criminalization of marital rape in these
countries indicates that marital rape is now recognized as a violation of human
rights. In 2006, it was estimated that marital rape is an offence punished under
the criminal law in at least 100 countries and India is not one of them as even
though marital rape is prevalent in India, it is hidden behind the sacrosanct
curtains of marriage.
Effects of Marital Rape
Despite the historical myth that rape by one's partner is a relatively
insignificant event causing little trauma, research indicates that marital rape
often has severe and long-lasting consequences for women. The physical effects
of marital rape may include injuries to private organs, lacerations, soreness,
bruising, torn muscles, fatigue and vomiting. Specific gynecological
consequences of marital rape include miscarriages, stillbirths, bladder
infections, infertility and the potential contraction of sexually transmitted
diseases including HIV.
Women who are raped by their partners are likely to
suffer severe psychological consequences as well. Some of the short-term effects
of marital rape include anxiety, shock, intense fear, depression, suicidal
ideation, and post-traumatic stress.
Immunization of Marital Rape from criminalizing it as an offence
The common law origins of marital rape immunity can be traced to the writing of
18th Century English jurist Sir Matthew Hale. In 1736 his highly acclaimed
treatise, maintained that the husband cannot be guilty of a rape committed by
himself upon his lawful wife, for by their mutual matrimonial consent and
contract the wife hath given up herself in this kind unto her husband which she
cannot retract. No prior English common law articulated this standard, but
Hale's new rule found broad support among parliamentarians and subsequently
influenced legal developments in the British colonies and in the United States.
Nearly every state legislature enacted laws that shielded husbands from criminal
punishment for raping their wives.
Conceptually and legally, wives' sexuality and sexual independence came within
the ambit of property rights conferred to husbands. This common law standard
established throughout the United States. As the Supreme court of Alabama
claimed, it 'was a grave breach of marital duty' for wives to refuse intercourse
with their husbands. 
In 1869, John Stuart Mill had observed that marital rape is never welcome to
women for it represents a surrender of dignity so absolute in nature, that it
lowers the stature of the wife beneath that of a slave. The basic premise for
this assumption lies in the fiction that the wife is considered to have given
her irrevocable consent to sexual intercourse to the husband at the time of the
marriage and hence the husband cannot be held guilty of rape, which he may
commit upon his wife.
The tenets of the marital rape exemption were based on the
notion of 'irrevocable implied consent' . Therefore for centuries, courts
have refused to recognize marital rape as a crime for which wives deserved any
relief or safe harbor. That is, women lacked any right to refuse sexual
intercourse and their consent was irrelevant.
Present legal position of Marital Rape in other countries
In United States researchers estimate that 10% to 14% of married women
experience rape in marriage. When researchers examined the prevalence of
different types of rape, they found that marital rape accounts for approximately
25% of all rapes. Till recently, the general rule was that a husband could not
be convicted of the offence of raping his wife as he is entitled to have sexual
intercourse with his wife, which is implied under the contract of marriage.
1993, marital rape became a crime in all fifty States, under at least one
section of the sexual offence codes. The existence of some spousal exemptions
in the majority of States indicates that rape in marriage is still treated as a
lesser crime than other forms of rape.
In England, earlier as a general rule, a man could not have been held to be
guilty of rape upon his wife, for the wife is in general unable to retract the
consent to sexual intercourse, which is a part of the contract of marriage.
However, the marital rape exemption was abolished in its entirety in 1991. The
House of Lords held in R. v. R
. that the rule that a husband could not be
guilty of raping his wife if he forced her to have sexual intercourse against
her will was an anachronistic and offensive common-law fiction, which no longer
represented the position of a wife in present-day society, and that it should no
longer be applied.
Corresponding amendments to the statutory law was made
through Section 147 of the Criminal Justice and Public Order Act, 1994. This
judgment was also affirmed by the European Court of Human Rights in the decision
of SW v. UK
In Australia a person can apply to a judge or magistrate for an order allowing
him/her to marry if he/she has reached the age of 16 years. However, by 1991
every state in Australia had abolished the marital rape exception.
In New Zealand, a person under 20 years of age but over 16 years old can only
marry with parental consent. The age of sexual consent for women is also 16
years. There is no exception for marital rape in the Crimes Act, 1961 of
New Zealand. It was abolished in 1985.
India's Current Stance On Marital Rape
In India, marital rape exists de facto but not de jure. While in other countries
either the legislature has criminalized marital rape or the judiciary has played
an active role in recognizing it as an offence, in India, the judiciary seems to
be operating at cross-purposes. Women who experience and wish to challenge
sexual violence from their husbands are currently denied State protection as the
Indian law in Section 375 of the Indian Penal Code, 1860 has a general marital
Section 375 of IPC, echoes very archaic sentiments, mentioned as its exception
clause- Sexual intercourse by a man with his own wife, the wife not being under
15 years of age, is not rape.
Section 376 of IPC provides punishment for rape where the rapist should be
punished with imprisonment of not less than 7 years to life or for a term of 10
years and shall also be liable to fine unless the woman raped is his own wife
who is under 12 years of age, in which case, he shall be punished with
imprisonment of 2 years with fine or with both.
Thus no laws explicitly
prohibit a man from raping his legally wedded wife except in the following
- Sexual intercourse or sexual acts by a man with his own wife, the wife
being under 15 years of age 
- Sexual intercourse by the husband upon his wife during a period of
Even the United Nations Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW), of which India is a signatory, has viewed
that this sort of discrimination against women violates the principles of
equality of rights and respect for human dignity. Further, the Commission on
Human Rights, at its 51st session, titled 'The elimination of violence against
women', recommended that marital rape should be criminalized.
The Law Commission of India in its 172nd Report considered the issue of marital
rape but chose to ignore the voices that demanded the deletion of Exception 2 to
Section 375 IPC on the ground that 'it may lead to excessive interference with
marital relationship' and may destroy the institution of marriage.
Indian Constitutional Guarantee And Exceptional Clause of Penal Statute with
regards to Marital Rape
Section 375 of the IPC is probably the only provision that in itself
discriminates between two groups of the same sex; married women and unmarried
women. One part protects all women from sexual violence but at the same time
permits marital rape of a married woman by her husband.
This discrimination is
in violation of Article 14 of the Constitution of India. Through various
judgments of the Supreme Court, it is now clear that right to life under Article
21 of the Constitution includes right to privacy, sanctity of females and to
make choices relating to sexual activity.
Marital rape is also a violation of the fundamental right of a woman
specifically under Articles 14 and 21 of the Constitution of India but the lack
of criminalization of marital rape infringes on the fundamental rights of a
woman. Even though this crime of marital rape occurs within the private sphere
of a marriage, it is the responsibility of the State to penetrate through this
private sphere. If the State does not penetrate this private sphere, then a
woman is left without remedy when raped by her husband.
Right to Equality and Non-discrimination
Article 14 of the constitution grants equality before law and the equal
protection of law. There have been many instances where persons who have
approached the court in order to realise their rights under Article 14 but the
situation has not been so in cases of instances of criminalizing Marital rape.
However, while analysing the case of Navtej Singh Johar v. Union of India
Justice Chandrachud makes some important remarks about the public/private divide
in constitutionalism: this is because, in order to engage in a stereotype-based
analysis of the adultery provision, one must necessarily apply constitutional
norms to and within the family structure, normally thought of as part of the private sphere
This leads him to make the following important observation:
'It is the duty of this Court to break these stereotypes and promote a society
which regards women as equal citizens in all spheres of life- irrespective of
whether these spheres may be regarded as public
.... While there
has been a considerable degree of reform in the formal legal system, there is an
aspect of women's lives where their subordination has historically been
considered beyond reproach or remedy.
That aspect is the family. Marriage is a
significant social institution where this subordination is pronounced, with
entrenched structures of patriarchy and romantic paternalism shackling women
into a less than equal existence Constitutional protections and freedoms
permeate every aspect of a citizen's life the delineation of private or public
spheres become irrelevant as far as the enforcement of constitutional rights is
concerned. Therefore, even the intimate personal sphere of marital relations is
not exempt from constitutional scrutiny.'
Right to live with dignity
In Francis Corale v. Union Territory of Delhi
 for the Court emphasized on
the concept of the right to live with human dignity to be intrinsic of Right to
Life under Article 21 and all that comes along with it, namely, the fundamental
necessities required for living such as adequate nutrition, clothing and shelter
over the head and facilities for reading, writing and expressing oneself in
diverse forms, freely moving about and mixing and mingling with fellow human
The Supreme Court has held in a plethora of cases that the offence of rape
violates the right to life and the right to live with human dignity of the
victim of the crime of rape. In The Chairman, Railway Board v. Chandrima
, the Apex Court went as far as to observe that rape is not merely an
offence under the Indian Penal Code, but is a crime against the entire society
at large. In Bodhisattwa Gautam v. Subhra Chakraborty
, the court observed
that more than rape being a sexual offence it is an act of aggression which aims
at degrading, humiliating and mortifying the women at large.
Thus any law which gives the right to the husband to force himself upon his wife
without her consent is a gross violation of the constitutional right of a woman
to live with dignity.
Right To Sexual Privacy
Recently, the apex court has accepted Right to Privacy to be an intrinsic part
of Fundamental Rights under Article 21. The court in Justice K.S. Puttaswamy v.
Union of India
, overruled the decisions of M.P. Sharma and Kharak
 and made it clear that the right to privacy is a fundamental right and
it will not lose its status amongst the Golden Trinity of Article 14 (Right to
Equality), Article 19 (Right to Freedom) and Article 21 (Right to Life and
An important aspect of the right to privacy includes gender priority which
implies not only the prevention of the incorrect portrayal of private life but
the right to stop it from being represented at all. A woman of easy virtue is
also entitled to privacy and no one has the right to invade her privacy. Every
female has the basic right to be treated with decency and proper
dignity. Thus, by not recognising marital rape as a crime violates the law
of privacy of a woman and thereby infringes her much cherished fundamental
Right to Health
Right to Good Health is an important aspect of Fundamental Rights as contained
in Article 21 of the Indian Constitution. Good health includes the physical
and mental well being of an individual. Every individual is entitled to a
peaceful and healthy lifestyle. The effect of decriminalization of marital rape
is a violation of this fundamental right as it degrades the physical and mental
well being of a woman and causes serious psychological and physical harm on the
behest of her husband.
Also, forceful sexual intercourse accompanied by severe
assault and battering can have a disastrous effect on a woman's physical and
mental health and also cause various STDs. Therefore, exempting marital
non-consensual intercourse from the definition of rape is a gross violation of
her fundamental right to good health.
India's Judicial Stand on Marital Rape
Tracing the history of judicial decisions on infliction of serious injury by the
husband on the wife the court in Emperor v. Shahu Mehrab
 , the husband was
convicted under section 304A Indian Penal Code for causing death of his
child-wife by rash or negligent act of sexual intercourse with her.
In Saretha v. T. Venkata Subbaih
 , the Andhra Pradesh High Court held:
'There can be no doubt that a decree of restitution of conjugal rights thus
enforced offends the inviolability of the body and mind subjected to the decree
and offends the integrity of such a person and invades the marital privacy and
domestic intimacies of a person'.
In the landmark case of Independent Thought v. Union of India
, the SC has
taken a major step to protect the girl child by criminalizing the sexual
intercourse with a wife below 18 years as it is discriminatory and violates the
fundamental rights of the Constitution of India.
In 2005, the Protection of Women from Domestic Violence Act, 2005 was passed
which although did not consider marital rape as a crime, did consider it as a
form of domestic violence. Under this Act, if a woman has undergone marital
rape, she can go to the court and obtain judicial separation from her
husband. However, the same doesn't entirely protect the women from the
crime and give her protection and justice in this regard. The whole legal system
relating to rape is in a mess, replete with paradoxes and major legal lacunae
come in the way of empowering women against marital rape.
Very recently, the Gujarat High Court in its recent judgment on Nimesh Bhai
Bharatbhai Desai v. State of Gujarat
, while examining the law relating
to sexual offences observed that husbands need to be reminded that marriage is
not a license to forcibly rape their wives. Marital rape is in existence in
India, a disgraceful offence that has scarred the trust and confidence in the
institution of marriage. A large population of women has faced the brunt of the
non-criminalization of the practice.
However, in a separate case, the High Court of Delhi dismissed the petition to
criminalize marital rape, maintaining that the drafting of the law is the
function of the legislature rather than the court, while the court is more
concerned with the interpretation of the law than its drafting. This reasoning
is unfortunate, especially in view of the Supreme Court's unequivocal verdict in
the case of State of Maharashtra v. Madhukar Narayan
 that every
woman is entitled to her sexual privacy and it is not open to for any and every
person to violate her privacy as and whenever he wished.
Suggestions and Conclusion
The NHFS-4 reports that 31% of married women have been subjugated to physical,
sexual and emotional violence at the hands of their spouse in 2015-16.
Marital rape should be criminalized in India, and this can be achieved by
applying an individualistic approach to violence against women. NGO's have
succeeded to achieve public awareness and to pass legislation on domestic
violence, but marital rape has not been fully criminalized by abolishing the
distinction between marital rape and stranger rape.
Marital rape will never be criminalized until legislators and the society
acknowledge women's individual rights within the marriage. In the era of legal
reforms and revolutions, it is of utmost importance to take steps towards
criminalizing marital rape so that we can move a step forward towards the road
of progress in real sense. In a country like India, such reform is far from the
reality as neither the lawmakers of this country nor the Indian judicial systems
are prepared to bridge the gap between marital rape and rape as they are both
heinous crimes which could scar the victim for life.
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(Last Visited on September 2, 2020)