Marriage is a religious ceremony and it means that any sexual act within wedlock
is not wrong and is legal. The definition of rape remains equivalent, i.e.
sexual intercourse or sexual penetration once there's a lack of consent. So, an
essential ingredient to prove the crime of rape is to prove the lack of consent.
This burden to prove the lack of consent usually rests on the victim. In some
instances, as in the case of minors, likely, consent doesn't exist as they're
expected by law to be incapable of willing to such sexual acts. On the opposite
hand, there are also instances were consent is likely to exist and often, this
presumption exists once the victim and the culprit are married.
instances, the thought of marital rape becomes hostile. India is one of the 36
countries that also haven't criminalized marital rape. In many jurisdictions
across the planet, marital rape isn't recognised as a crime by law and society.
Even when countries recognise rape as a criminal offence and prescribe penalties
for the equivalent, they exempt the appliance of that law when a marital
relationship exists between victim and culprit, often referred to as the marital
rape exception clause. The law in India doesn't criminalize matrimonial rape.
The Indian Penal Code, 1860 doesn't acknowledge that as a criminal offence for a
husband to rape his wife.
It's an aspect of marriage that is not being taken
care of by the existing laws. Women have been given the right to protection, but
her husband who she married with full belief, tries to harm and torture her by
having forceful sex without her consent. Rape within marriage could be an idea
that agonizes the wife to the core. Rape can be viewed as an act of violence
against a woman, to outrage her modesty by all means. The Supreme Court of India
has described it as a shame and therefore the gravest crime against human
dignity. Rape isn't just a physical assault but is the destruction of the full
persona of the victim. In light of this, the idea that a woman has to have sex
with her husband regardless of her consent is unacceptable to a civilized
Looking at some cases and also the history of judgment on the intense injury by
the husband on the wife. Within the case of Queen Empress v. Haree Mythee
was determined that within the case of a marriage, the law
of marital rape doesn't apply between husband and wife after the age
of fifteen years . In this case, the husband was guilty under section 338 of
the Indian Penal Code, 1860 for rupturing the vagina of his eleven years old
wife inflicting an injury resulting in her death.
In R v. R
, which was an English criminal code case it
was commanded that it's a criminal offence for a husband to rape
his wife. Both the Court of Appeal and also the House of Lords upheld the rape
conviction declaring that marital rape exemption doesn't exist in English law
. R bust into his wife's parents' house whereas they were out and
made her do sexual activity with him without her consent. He was arrested with
the charge of rape under section 1(1) of The Sexual Offences Act, 1976. In
Emperor v. Shahu Mehrab
, the husband was guilty below section 304A of The
Indian Penal Code for inflicting the death of his minor wife by rash and
negligence act of sexual activity along with her.
In Saretha v. T. Venkata
, the Andhra Pradesh High Court held that there can be no doubt
that a decree of restitution of conjugal right 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 State of Maharashtra v. Madhukar Narayan Mardikar
, the Supreme Court
referred to as the right to privacy over one's body. It was set that a
prostitute has the right to refuse sexual activity. All stranger
rapes are criminalized and every female, aside from wives, are given the
right of privacy over their bodies thereby envisaging the right to withhold
consent and refuse sexual intercourse. The difficulty is that it's been accepted
that matrimony is sacred. Instead of, making the wife worships the
husbandís every need, particularly sexual, it's supposed to flourish, mutual
respect and trust. Itís far more traumatic being a victim of rape
by somebody familiar, a friend, and worse to have to cohabit with him.
Justification for Marital Rape not being a crime in India:
A rigid patriarchal society that suppresses women's voice and culture where
marriage is the building block of the society. The former Chief Justice of India
Dipak Misra said that marital rape should not be a crime because it will create
absolute anarchy in families and our country is sustaining itself because of the
family platform which upholds family values. The social traditions and
values create such an environment where matrimonial rape cannot be criminalized.
The Indian government suggested that those seeking to stop women from being
raped by their husbands were blindly following the Western countries.
that once a woman is married, she hands over continuous sexual consent to her
husband is deeply embedded in our society. Matthew Hale of England had declared
that the husband cannot be guilty of rape committed by himself upon his lawful
wife, for by their mutual matrimonial consent and contract the wife hath given
her up in this kind unto her husband which she cannot retract . In
an affidavit submitted to the Delhi High Court, the union government said a law
criminalizing marital rape can become an easy tool to harass the husbands,
absurdly arguing if all sexual acts between a husband and his own wife qualify
to be marital rape then the judgment whether it is marital rape or not will
singularly rest with the wife .
This argument that women will
falsely accuse their own husbands has been used multiple times and even if they
do judiciary is there to help. The only argument or justification that is valid
is that marital rape is a heinous crime and violently oppressive. Indian
constitution guarantees equality but the marital rape law discriminates against
a woman who is being raped by their own husband which is definitely
The Indian law has clearly failed to provide proper protection to women as they
are still being treated as property of the husband and he has all the rights to
utilise her. The topic of marital rape is crucial in establishing equality for
married women. We have analysed the validity of the arguments which are backed
with the concept of family, marriage, and the role of women in society. We also
established how all the justification for the criminalisation of marital rape
has no legal standing. Several jurisdictions around the world have recognised
marital rape as an offence and they are breaking the hold of the ancient
tradition. Even the Supreme Court of Nepal has ruled that forced sexual
intercourse within a marriage constitutes marital rape.
Unfortunately, India is
lagging behind. There is nothing to believe that marital rape doesnít happen in
Indian families. It is prevalent in every city, every township, and every
village of India. The only difference is that we have turned an unsighted eye to
the issue. The time is mellow for the Indian Legislature to wake up from its
years of dormancy and make amendments to the Indian Penal Code.
- (1891) ILR 18 Cal 49
-  1 AC 599
- AIR 1917 Sind 42
- AIR 1983 AP 356
- AIR 1991 SC 207
Award Winning Article Is Written By: Ms.Aditi Gupta
Authentication No: MA106334887417-4-3221