Marriage is a social institution and a socially approved relationship between
man and woman. The institution is acceptable in society because it meets men and
women's physical, social, psychological, cultural, and economic needs. There is
a concept of marriage consummation in almost every religion; the institution is
considered incomplete without the creation of a physical relationship between
husband and wife, and this can be a basis for annulment in a marriage. Sex
between spouse and wife is legal, however, because of the legality of sex,
women's consent and circumstances are overlooked, resulting in marital rape.
The term "marital rape" refers to sexual intercourse between a husband and his
wife in which the wife does not consent. Being a husband does not give a man the
right to force his wife to engage in sexual activity. It should be voluntary and
not pushed onto the woman. There are various reasons why this topic is not
widely discussed and highlighted, including women's fear of society and family,
their financial dependence on their husbands, illiteracy, a lack of sexual
education, poverty, religious views, societal norms, etc.
Only 36 countries, including India, have not made marital rape unlawful as of
2020. The current scenario reflects society's stereotypical mindset, which
considers a woman to be his husband's property and hence does not consider rape
or sexual abuse by their husband to be a criminal offence. [i]
Current Status Of The Marital Rape In India
Rape has been defined in Section 375 of IPC. Ironically enough, it is also where
the legality of marital rapes in India began. " Sexual intercourse between a
married couple, if the wife is not under the age of fifteen, is not rape,"[ii] reads
Exception 2 of the Section. The word "marital rape" can be described as any
undesired and forceful sexual intercourse between a husband and wife, however,
no statute or regulation defines the term.
While the law does not prohibit
marital rape, it does prosecute forceful sexual intercourse when the wife and
Spouse are judicially separated, according to Section 376 of the Indian Penal Code[iii], which stipulates the sentence for rape.
Rape of a wife older than 15 years is not considered rape. The establishing of a
marital relation is deemed implicit consent to have sexual intercourse under
current law. The legality of marital rape also breaches Article 21 of the Indian
constitution[iv], which protects life and personal liberty as well as a person's
right to privacy and dignity. Rape is a violation of the fundamental right to
live with dignity, as well as a violation of basic human rights. [v]
Marital rape deprives married women of their right to human dignity, privacy,
and choice over their bodies. The exemption for marital rape stemmed from an
antiquated view of marriage in which wives were viewed as the property of their
husbands. Wives, on the other hand, were treated similarly in the adultery law,
though significant changes were made in the adultery law.
Domestic Violence Act, 2005 establishes civil remedies for crimes against women,
such as marital rape, as well as protection from domestic violence and sexual
It is unpleasant that domestic violence is considered a civil wrong
rather than a criminal one. If marital rape becomes a criminal offence, it will
serve as a deterrence to future offenders.
Law Commission Reports
The 42nd Law Commission Report, published in 1971[vi], recommended that marital
rape should become a criminal offence. The subject was revisited by the Indian
Law Commission in 1976 and again in 2000, but no conclusive action was taken.
Two key recommendations were made in the report:
- First, it stated that the exclusion clause of IPC section 375 should not be
applicable in circumstances where the married couple has been judicially
separated. Although the cause behind this remained a mystery. It stated that:
such a circumstance, the marriage theoretically continues, and if the husband
engages in sexual relations with her against her will or consent, he cannot be
charged with rape. This does not appear to be right.
The report does not go
into detail on why it isn't correct. It suggests that permission is assumed in
instances when the husband and wife live together, but not in situations where
they do not.
- The second report recommendation dealt with sexual encounters which were
non-consensual between women aged 12 to 15 years. It claimed that such offences
should be punished in a distinct part, ideally not as rape, and should be a
little different. The reason for this is that before the recent revisions to the
IPC, rape committed by a spouse when the wife is between the age of 12 to 15 had
a separate sentence.
The report is notable for emphasising the presumption of
consent that exists when a married couple live together, as well as the
distinction between marital rape and other forms of rape, with marital rape
being considered less severe. The report, on the other hand, made no comment on
the exception clause itself, that is, whether the section's exception clause
should be kept or removed.
In a report submitted in January 2013, Amendments to Criminal Law were proposed
by Justice J.S. Verma Committee that marital rape exemption be repealed.
The complainant's agreement to the sexual conduct has nothing to do with the
nature of the accused's relationship with her. Even if marital rape is
recognised as a crime, there is a chance that courts will view it as less
serious crime than other types of rape.
This committee proposed that section 375 exception two be abolished, however,
the government stated that eliminating exception 2 of section 375 would not
prevent marital rape. Moral and societal awareness are critical in preventing
such acts. [vii]
Violation Of Fundamental Rights Of Women
Marital rape is also a violation of a woman's fundamental right, which is
guaranteed by Articles 14 and 21 of the Indian Constitution
- Violation of Article 14
Article 14 of the Indian Constitution provides the fundamental right to
equality, stating that "the State shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India"[viii].
As a result, while discrimination is prohibited by Article 14 of the
Indian Constitution., the IPC section 375 discriminates against sexual assault
with a wife and stranger. Female victims of rape by their own spouses are
discriminated against in this section. It is a violation of Article 14 of the
Constitution, which guarantees the right to equality before the law.
The Indian Penal Code was drafted at a time when society was patriarchal and
marriage was regarded as a sacrament only, which is why exception 2 was added to
section 375. Women were not recognised as independent legal entities, but it was
thought that after marriage, the wife's identity melded with the husband's.
However, statutes passed in recent years to protect women from violence and
harassment, such as the domestic violence act'[ix], 'sexual harassment of women
at work act[x], etc shows that husband and wife are now recognised as separate
legal identities.' Therefore, this exclusion obviously violates article 14's
right to equality by discriminating against married women.
- Violation of Article 21
The supreme court has interpreted Article 21 of the constitution in
various decisions. The scope of this article has been interpreted to include far
more than the literal promise of life and liberty. This right covers, the right
to live with dignity, the right to privacy, the right to self-determination,
- Right to live with dignity
The Supreme Court initially emphasised the concept of right to live with dignity
in Francis Coralie Mulin case[xi]. The court determined that Article 21 covers
the right to live with dignity, which encompasses basic necessities such as
adequate sustenance, clothes, and shelter, etc. Rape is also seen to be an
affront to the victim's right to live with dignity in many other instances. In
Bodhisattwa Gautam v. Subhra Chakroborty case[xii], the court examined marital
rape. The court ruled that the marital rape exception to rape is a violation of
a woman's right to live with dignity, and that any law that infringes on that
right and allows the husband to engage in sexual intercourse without her consent
- Right to Privacy
It is a violation of a women's privacy if her husband forces her to engage in
sexual activity against her will. As in Madhukar Narayan case [xiii] demonstrated, No
one has the right to infringe on her sexual privacy anytime he pleases. In
Suchita Srivastava case [xiv], the Apex Court ruled that the right to choose
sexual behaviour falls under Article 21's protection of personal liberty,
privacy, dignity, and bodily integrity. In the decision of Justice K.S.
Puttuswamy v. Union of India [xv], the Apex Court recognised the right to privacy
as a fundamental right. This decision makes no distinction between married and
unmarried women, and no other judgment contradicts it.
- Right to bodily self-determination
The concept of bodily self-determination is built on the principle that a human
being is the ultimate decision maker relating to his or her body or property.
The stronger the privilege of the individual making the decision, the more
private the decision is. The decision to have sexual intercourse is a sort of
self-assurance and self-expression for a woman, and it is her most private
The right to communicate and reject the consent is taken away by
Exception 2 of Section 375 of the IPC, which excludes married women from the
ambit of becoming rape victims in the matrimony. This deprives the married woman
of her right to true self-assurance and interferes with her most personal
However, the legal position on this issue has been terrible. In State
of Maharashtra v. Madhukar Narayan Mandikar case [xvi], the supreme court stated
that prostitution has the right to refuse sex, but astonishingly, the wife is
excluded and does not have protection over her own body.
The majority of developed countries have changed their laws on marital rape. In
comparison to other countries, India is lagging far behind in removing
Victorian-era provisions. For marital rape, there is a need for a separate
statute. If not, as proposed in the 172nd Law Report, marital rape should be
made a crime under the Indian Penal Code, 1860. The fact that it is difficult to
prove and, in a nation like India, it is also difficult to change statutes
regulating marital laws due to the presence of distinct personal laws, is a
major impediment to criminalising marital rapes.
The most crucial factor to examine here is not the difficulty of enforcing the
legislation, but rather its necessity. The implementation of the law will save
the dignity of women in relationships and the fundamental rights of women.
- Indian Penal Code,1860, §375, No. 45, Imperial Legislative Councill,1860
- Indian Penal Code,1860, §376, No. 45, Imperial Legislative Councill,1860
- India Const. art. 21
- Bhodhisathwa Gautam v Subhra Chakraborthy 1996 AIR 992, 1996 SCC (1) 490.
- 42nd Report 1971, Indian Penal Code, Law Commission of India.
- Justice Verma Committee Report - Committee Reports,
- India Const. Art 14.
- Protection of Women from Domestic Violence Act, 2005
- The sexual harassment of women at workplace (Prevention, Prohibition and Redressal) act, 2013, No. 14, Acts of Parliament, 2013 (India).
- Francis Coralie mulin v. Administrator, Union Territory of India,
- Bodhisattwa Gautam v. Subhra Chakroborty AIR 1996 SC 133.
- State of Maharashtra v. Madhukar Narayan, AIR 1991 SC 207
- Suchita Srivastava and Another vs. Chandigarh Administration, AIR 2010
- Justice K.S. Puttuswamy v. Union of India, AIR 2017 SC 416
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