Marital rape refers to a sexual interaction by a husband with his wife, against or without her
consent. If a couple is lawfully wedded and the age of the wife is more than 15 years, then the
husband can coerce his wife into sex.
In short, marital rape is a form of rape allowed by law.
More than two-thirds of married women in India have been forced during sexual activity,
says a UN report. This raises some pertinent questions for Indian society.
- Does a woman's consent for marriage mean sacrificing her right to say
- Can women
raped by their own husbands have no redressal in the court of law?
- Can we afford to remain
silent on such daily assaults of Indian women?
The ongoing fight to criminalize marital rape seeks answers to these questions.
Marital Rape: The Legal Story So Far
Marital rape is mentioned in Section 375 of the Indian Penal Code (IPC).
Exception 2 of
Section 375 says- the rape of a wife by her own husband is not a crime.
The roots of this provision are found in two doctrines of the British colonial
The first doctrine was given by Matthew Hale, the Chief Justice of King's Bench.
"Husband can't be guilty of rape. By their mutual matrimonial consent and
contract the wife
has given up herself in this kind to the husband".
The second Victorian doctrine that influenced marital rape immunity is the Doctrine of
According to this doctrine, a woman had no independent legal identity of her own
marriage. Her identity was merged with that of her husband and all her property
on to him.
Section 375 of IPC (1870), heavily influenced by these doctrines, continues to
work on such weaker sex
notions of women.
No wonder, the continued existence of this provision in the 21st century is
from all sides!
- A batch of petitions is being heard in the Delhi High Court for
declaring marital rape
as a crime. The PILs were filed by the NGO RIT Foundation, All India Democratic
Women's Association, and 2 other individuals in 2015.
- Justice Verma Committee, formed after the draconian Nirbhaya Case (2012)
recommended making marital rape a criminal offense.
- At the international level, the UN Convention on Elimination of Violence
Women (UN CEDAW) also suggested that India should criminalize marital rape.
- More recently, the Kerala High Court allowed 'marital rape' as a valid ground
The combined message of these efforts is to assert that women have an identity
and agency of
their own. Being in a marital relationship can not be used as a cover to violate
Reasons why marital rape should be criminalized in India:
More than 100 countries around the globe have criminalized marital rape. And yet
evil continues to enjoy legal immunity in India!
There are plenty of reasons why this immunity requires a relook today:
Violation of Fundamental RightsMarital rape is a direct assault of women's right to life with dignity (Article 21).
Forcing a woman for sex and inflicting violence on her, is a blatant breach of her
dignity. It is also a cruel suppression of her dissent.
Marital rape also violates the right to equality enshrined under Article 14. The notion
that consent for marriage denotes 'consent in perpetuity', imposes undue coercion on
Inconsistency in LawRecently, in the Chhattisgarh High Court, a wife framed multiple charges on her
husband. This included charges under Section 376 (rape), Section 377 (carnal
intercourse against law of nature), and Section 498A ( domestic violence)
The Court bound by law had to dismiss the husband on the ground of Exception 2
This highlighted a major inconsistency in the law:
- Domestic abuse of the wife is a punishable offense under Section 498A and the
Domestic Violence Act of 2005. However, similar physical harm caused through
sexual assault enjoys legal immunity.
- Another inconsistent provision is that a man can rape his wife if she is aged 15
or more. This stands contrary to the laws on child marriage and child abuse.
- In fact, this provision is a naked endorsement of the existence of such social
Impact on women's health and psychology Cases of marital rape are mostly driven by the husband's low self-esteem,
unemployment, urge to assert power, alcoholism, etc. Violence borne out of such
angst can inflict unthinkable and long-lasting impacts on victim women.
Paul Bart rightly remarks here:
" Rape is a power trip, not a passion trip"
Marital rape causes immense physical pain as it is nothing but a sexual assault.
fact, the pain of repeated abortions, poor reproductive health, and even
that victims may go through are inexpressible.
Even if the physical wounds get healed, the mental trauma can haunt the victim
lifetime. Victims often slip into clinical depression, post-traumatic stress
(PTSD), anxiety, fear, and vicious cycles of guilt.
Children in the family also get bruised for life with such incidents.
Misogynist presumptions One common assumption in society is- a woman's duty, an obligation if you may, to
keep her man happy. It is because of this assumption that women do not even consider
it a problem if they are mistreated for sex.
The second assumption has formed over generations. It believes that women need to
be 'straightened' by their husbands. In other words, the idea of 'wife the wife'.
It is because of such deeply ingrained myths that marital rape is socially as well as
legally accepted in India. In fact, they are considered so natural that the victims do not
even feel the need to report the matter.
Image of India to the WorldThe marital rape immunity is not just degrading India from within but also
on the global front. It projects a very orthodox and backward image of India.
Indian government's consistent defense for continuing this legal immunity
impacts the country's perception.
Our country is on the list of 36 infamous countries including Pakistan,
Nigeria, etc. who haven't criminalized marital rape. This goes against the image
progressive gender-just nation that India wants to portray to the world.
Today people are more aware of the atrocities associated with marital rape.
Despite this, the
government of India has shown repeated reluctance in criminalizing it.
Venkaiah Naidu recently said that "the entire family system will be under great
marital rape be criminalized."
In the Independent Thought v. Union of India Case
(2017) also, the government
marital rape exception.
The government argued that criminalizing marital rape is 'against the
institution of marriage'.
It is against Indian culture and will destabilize the whole institution of
However, the judgment by the Honourable Supreme Court in the case cleared the
misogyny hovering over the government.
The Court remarked:
" marriage is not institutional but personal. Nothing can destroy the
'institution' of marriage
except the statute that makes marriage illegal and punishable".
Thus, it is high time that the Government of India uproots this archaic norm of marital rape
immunity. It is a long-overdue decision for making homes safer for women.
In fact, criminalizing marital rape is a necessity for India to progress towards a more equal,
just, and humane society.
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Written By:Varun Singh
Email: [email protected]
, Ph no: +91-99582 67942