Her friends used to tell her it wasn't rape if the man was your husband. She
didn't say anything, but inside she seethed; she wanted to take a knife to their
- F. H. Batacan
Rape in marriage is a serious and prevalent form of violence against women.
Marital rape can be defined as unwanted intercourse, penetration obtained by
force, threat of force when the wife is unable to give consent. According to the
patriarchy believes and the laws which are prevailing in India marriage is
considered to be as the pious thing where two person's came together from their
different life to live together to form a happy life, family and with a thought
to create a healthy and happy sexual relationship between them where the wife
expects respect, love, good health and wealth from her husband along with trust,
faith and believe in their relationship.
But today this sacrament just revolves
around only lust and sex as our society is not upgraded to have sexual
relationship before marriage so youngsters found marriage as an option to meet
up their demands and also according to the Hindu marriage act , marriage is a
sacrament between two individual who came together for the procreation of the
child. Also marriage between two individual not only creates biological
relationship but the emotional relationship also. 'Consent' being the essential
element for demonstrating the gravity of sexual relationship between husband and
wife. Taking this into consideration if there is no consent from either of the
person who is in a sexual commitment can leads too RAPE.
Rape is thus, is an unlawful sex without the consent of the person due to
physical torture which leads to endangers life of the person.
In India Rape is an offense under section-375 of Indian Penal Code- 1860.
Accordingly, the non-consensual relationship between non spouses is a crime but
the non-consensual relationship between matrimonial spouses is a crime to, but
In India it is not considered so or is it still debatable. According to the law
which is prevailing in India i.e. Hindu Marriage Act once the marriage is
performed husband gets the liberty/license over the wife to any extent.
because of the patriarchy that husband gets to do violence and sexual assault on
his wife and it is exceptional and excusable. The patriarchy believes that wives
are the most unimportant asset in men's life so if they will talk about forced
sexual relation between them it will be regarded as theft of ladies and will be
against their husband.
Matrimonial rape is excusable it was stated by the statement of Sir Mathew Gale,
Chief justice in England during the period of 1600's: "the husband cannot be
guilty of rape committed by himself upon his lawful wife, for by their mutual
consent, matrimonial consent and contract, the wife have given her consent by
performing all the ceremonies and that consent cannot be taken back".
According to the exception stated in section-375 of Indian Penal Code, 1860 that
sexual intercourse by a man to his own wife not under the age of 15 years, is
not a rape. This would eventually impact the dignity and respect of the wife and
thus leads to the violation of her right to equality her life and personal
liberty i.e. Article 14& 21 of the Indian constitution. The exception clause
under secrion-375 of Indian Penal Code gives power to the husband to disrespect
the wife up to any extent this exception is ridiculous and absurd.
Is Marriage A License To Rape?
Rape in marriage is a serious and prevalent form of violence against women. Few
truly believe that the relationship between two spouses is confidential and
generally women in India doesn't really know or have information regarding the
unnatural sexual abuse which they have been facing since long and this is not it
even the educated women does not wants to raise voice if they are facing such
abuses from their husband's and if out of 100% women population 10% wants to
raise voice against the rape in the marriage there is no law to protect her
rights in India to describe the non-consensual rape which has been committed in
the matrimonial relationship as Matrimonial Rape
The court believes that they have created a law namely Protection Of Women
From Domestic Violence Act, 2005
but that does not indents to give relief to such
wives who have been facing matrimonial rape or this act is for the protection of
women and it is civil wrong which believes in giving punishment extended to the
extent of one year imprisonment. Is that enough the women are facing hell lot of
problems to maintain the life of her husband her children her family and when
the husband came home upset he decides to reduce his stress by having
non-consensual relationship? Is it justified why women have to face all of the
problems on their own?
The supreme court of India describes Rape as deathless shame and the gravest
crime against human dignity
and it is just so same as the matrimonial rape the
difference is this that it done by the person from whom the lady expects trust,
faith and is having emotional relationship (husband), but patriarchy believes
are still prevailing husband is treated as god and raising voice against him is
a curse. Any sexual assault or physical abuse is excusable during marriage.
In India, everyone believes that unless the thing which they are doing is
punishable or is a crime everyone keeps on doing it. Similarly, matrimonial rape
is not punishable under any code in India so it is an exception. Moreover it is
to be considered as the violence under domestic violence act women because it
provides civil remedy to the victim like the concept of judicial separation
under Hindu Marriage Act and also the crime which the husband is doing over his
wife like sexual assault or physical violence considered to be as inclusive in
Further it punishes the respondent (not even stated as criminal who
committed the sexual assault on her wife) only in the case of breach of
protection order by the respondent (includes the husband and the relatives of
husband) and to the extent of cruelty under 498 A of IPC , this section was
introduced mainly to protect the women from the demand of dowry and this offence
is considered to be as cognizable in nature only when the aggrieved person or
her relative makes complaint to the officer in charge.
Also cruelty under section-498 A of IPC is considered to be a ground for divorce
as per section-13 of the Hindu marriage Act,1955. The only safe guard to the
married women against the sexual act of her husband is on when the couple were
separated by judicial separation ,by the court under section 376-B of IPC . This
safeguard is not to the woman who is in matrimonial relationship.
statement given by the wife against women is inadmissible according to INDIAN
EVIDENCE ACT 1872. Section 122; this section prevents the women from disclosing
any communication made by her partner in the course of marriage with an
exception that unless a suit between the married person means a proceeding
between the married person in family court proceeding (in assault like divorce).
According to Article 14 and Article 21 of the Indian constitution which
guarantees fundamental rights which is mentioned under part-III of the Indian
Constitution which talks about Equality before Law and Right to life and
According to Article-14 of Indian Constitution which talks about Equality before
Law and equal protection of law which ensures in providing equal opportunity to
the citizens of India but herein in the case of matrimonial rape the wife is
deprived of this right i.e. Equal Protection of Law because the exceptional
clause under section-375 of Indian Penal Code states that sexual Intercourse or
sexual acts by a man with his own wife, the wife not being under fifteen years
of age, is not rape.
This provision violates equal protection of law between the
victims- the married and unmarried women and equality before law on penalizing
the rapist -stranger and the husband who committed the similar crime. The equals
to be treated equally.
The exception of section-375 is violating Article-21 of the Indian Constitution
which talks about right to life and personal liberty herein constitution of
India empowers to protect the rights of married women too. The exception in
section-375 of Indian Penal Code is violating the free will and consent of the
married women with her husband with whom her emotional strings are attached.
- Right to live with human dignity Supreme Court has rightly pointed out
that rape of women violates Human dignity. The provision which affects the
dignity of a married women is violating the article-21 of the Indian
- Right to sexual privacy, any form of forceful and unwanted sexual
intercourse violates the right of privacy. And every women is entitled to
her sexual privacy This clause violates her sexual privacy, in the
Role Of Judiciary:
Judiciary is silent in making laws for punishing the offender of the marital
rape. Many petitions have been filed but women are getting no response out of
them. The Delhi High Court on February 2015 and The Kerala High Court on October
2015 refused to entertain a PIL challenging a provision section 375 exceptional
clause as unconstitutional. Further the judgment came from Additional Sessions
Judge, Virender Bhat, in October last year stated a controversial statement that
"girls are morally and socially bound not to indulge in sexual intercourse
before a proper marriage, and if they do so, it would be to their peril and they
cannot be heard crying that it was a rape".
These cases shows rape in marriage is not an offence , and to be notable- even
rape outside marriage will not a rape if the rapist marries the victim ,this
subject is came arise from Justice Devadass judgment in madras high court bench,
he granted bail to the rapist to' mediate' with the victim. Later Supreme Court
Judgment ruled that out, "as under no circumstances rape case can be
compromised". If not the marriage after rape will the remedy to the victim of
Justice Chandrachud noted:
"Sexual autonomy constitutes an inviolable core of the dignity of every
individual. At the heart of the constitutional rights guaranteed to every
individual is a primacy of choice and the freedom to determine one's actions.
Curtailing the sexual autonomy of a woman or presuming the lack of consent once
she enters a marriage is antithetical to constitutional values.
Proving rape by a spouse can often be more difficult, because it can be more
difficult to prove that the victim did not give her consent. While this can be
fairly straightforward to prove in the case of stranger rape, married couples
usually have consensual sex, so it can take evidence of marital discord or
separation to show that the sexual activity was not non-consensual.
According to the Ministry of Home Affairs, a crime is committed against a woman
in India every three minutes. The National Crime Records Bureau reports 1,85,312
crimes committed against women in 2007-75,930 of which were considered to be
of domestic violence (Cruelty by husband or relatives).
Torture and molestation
were the most widespread felonies. The actual figure could be ten times higher
as many cases go unreported with victims unwilling to speak out, fearing the
shame and stigma associated with being a divorced or separated woman in
traditional Indian society.
While attitudes towards women in educated, urbanized
areas have improved, those of rural India remain unenlightened. Both men and
women see violence as a part of gender relations. And even with the
implementation of Protection of Women from Domestic Violence Act, 2005, marital
rape continues to go largely unreported and women have, at some point of married
life, undergone some form of sexual abuse- including marital rape.
The most common rationale for the marital rape exemption is Hale's notion that a
marriage constitutes a contract. The terms of this contract include a wife's
irrevocable consent to have sexual intercourse with her husband, whenever he
wishes. This has fostered the notion that a husband has a "marital right
sexual intercourse. According to the theory of implied consent, marital rape can
never occur because all sexual contact within a marriage is assumed to be
The contract theory, also based on Hale's statement, is intertwined with the
implied consent theory. Under the contract theory, Hale stated that when a woman
marries, she gives up her rights to her body because she has formed a contract
with her husband that cannot be retracted. And this 'contract' justifies any
forceful demand of sex from the husband
Despite the fact that matrimonial rape receives less public and judiciary
attention it is considered to be one of the most serious forms of violence
between the spouses. The women who are raped by their husbands are subjected to
assault, violence and severe emotional consequences. Rape in considered to be a
heinous crime either it is rape or matrimonial rape. It is not important to see
whether the woman is married or unmarried and who committed is a stranger or the
The exception clause in section-375 of ipc is absurd and is violating
the provisions of Article-21 of the Indian Constitution. A new provision for
marital rape has to be constituted it should not be deal with the protection of
women from domestic violence act, 2005. This goal will be successful only if the
crime against women -marital rape is held criminalized. Marital rape should not
be still decriminalized just because he is her legally wedded husband. The
marital rape is a rape.
- Gurmeet Singh, Advocate, For M/S Gurmeet Singh & Associates,
Advocates and Legal Consultants,
Website: www.gurmeetsinghandassociates.com /.in, Email:
[email protected], Ph No:+91 8750002000
- Ms. Priya Chawla
- Adv.Vidushi Jain
- Adv. Hritwik
- Adv. Aman
- Sh.Aman Karamvir,
- Adv. Tripty Rajput,
- Ms. Divya Kaushal,
- Adv. Alpana