"The male psycho-sexual logic looks at penetration as punishment. This is the
rape that disciplines, the rape that penalizes me for the life I have presumably
led. This is the rape that tames, the rape that puts me on the path of being a
good wife. This is the rape whose aim is to inspire regret in me. This is the
rape whose aim is to make me understand what my husband can do with my body as
he pleases. This is rape as ownership." - MeenaKandasamy
Humans are social beings and therefore cannot endure their existence in
solitude. They need to collaborate through the institution of marriage for the
establishment of a family and the procreation of the offspring. Human beings
have myriad kinds of needs and desires that they want to fulfil in their life.
It includes the desire of earning money, reputation and sexual desires, etc.
Criminal offences are the wrongful acts that are done while lying low and in a
concealed manner. As we all know that the offence of theft is constituted when a
movable property is taken away without the consent of the owner. This implies
that only by the absence of consent an act becomes an offence punishable by law.
Thus, here we can naturalize the concept and the significance of the term
"consent" that how important it is, especially when it comes to fulfilling
sexual desire. Marriage does not imply the consent of the wife for having
intercourse with the husband throughout their life.
The concept of consent is an integral part of a civilized society. The
fulfilment of sexual desire within the institution of marriage without obtaining
the consent of the wife indicates the deviation from this civilized form and
marks the element of barbarism in society.
Discerning the marital relationship
Marriage is construed to be an essential Sanskara out of the total sixteen
Sanskaras according to Hinduism. The need for marriage arose for the purpose of
regulating a man's life, mainly his sexual life and to fulfill the religious and
social obligations. The concept of 'Pativryata' was idealized in ancient times
in which woman's individuality was sacrificed. It was considered her prime duty
to provide all the services according to the needs of her husband. She was
considered as a river that merges into the sea called 'husband' losing her own
Evolution of marriage
The rigidity of the system of marriage has been largely whittled down over
centuries as society has evolved. Industrialization, urbanization, and other
progressive phenomena have affected the marriage system and thereby resulted in
its evolution. The rights of women have also been recognized across the globe.
The education of women pervaded the awareness regarding these rights. Adding to
that the laws has been evolved befitting the needs of modern society in the
sphere of marriage.
An insight into "consent"
Sexual consent can be broadly divided into three aspects. Firstly, it involves
the willingness of having sexual intercourse. Secondly, this internal
willingness is communicated to the other person by words or behavior either
implicitly or explicitly. Thirdly, people need to perceive the communicative
cues to discern the willingness of other person.
The Indian society has been governed by patriarchal psychology for a long time
which has resulted in the subjugation and suppression of the females at the
hands of the males. Their psychology has been portrayed in the laws made by
them. The exception of marital rape provided under section 375 of the Indian
Penal Code, 1860  is based on the archaic concept of the 'Doctrine of
Coverture' which did not treat men and women as equals and the woman was merely
the property of her husband.
The Section 375 of the Indian Penal Code,1860 deals with the offence of rape.
Explanation 2 of the same entails the definition of consent in rape, but it is
not applicable in the case of the sexual act of a man with his wife, providing
sheer immunity to the husband in sexual acts. Section 376B of the Indian Penal
Code,1860  makes the husband guilty of having sexual intercourse without her
consent during judicial separation.
Thus, it clearly exhibits the minds of the framers that they thought that the
concept of consent does not hold water within the bounds of marriage which is
nothing but clear absurdity. Section 375 treats consent as event-specific which
means that consent for one specific sexual act does not mean a continuing
consent for further sexual acts in subsequent situations, but on the other hand,
the exemption to consent in marriage shows that once consent is always
consenting for having sexual intercourse, thus, framers did not pay heed to this
event-specific difference in consent in marital sexual intercourse which is
discriminatory against the marital rape victims.
Marital rape is a consequence of a man's psychology of sex as a power drive
rather than a passion drive i.e. it is the way to control and subjugate their
wife. The common belief that a husband can do no wrong to his wife and woman is
safe within her own family as it is a sacred institution led to this immunity
given to marital rape in the laws.
Justice Verma Committee (2013) was established after the gruesome Nirbhaya rape
case of Delhi, which held that consent is a vital part of sexual intercourse and
the marital relation between the offender and victim serves no rationality. The
report supported its recommendation with the precedents of criminalizing marital
rape in various parts of the world. Even after criminalizing the marital rape,
it is essential to treat the consent in marital rape in the same manner as in
other rape cases otherwise it will be too difficult for the victim to rebut the
presumption of consent.
The problem in proving the consent in marital rape rises from the fact that the
victim would have past sexual relations with her husband, so it would be hard to
discern in which act the consent was given and in which one it was withdrawn.
The testimony of the victim and the injuries inflicted on her during the
physical act will serve as the major shreds of evidence in deciding such cases.
The testimony of the medical examiner and the family members will also be
Marriage: the borderline for human rights
The most unreasonable fact that we come across is, beating and harassing one's
wife comes under cruelty and makes him guilty under Section 498A of the Indian
Penal Code,1860  while on the other hand, raping wife is not an offence, this
makes us interpret that physical autonomy is provided to the woman in the
marital tie but not sexual autonomy. This partial recognition of the rights of
women is nothing but gross injustice to victims.
The Indian judiciary does not have any binding verdict on marital rape and still
differs in discerning it from state to state, where on one hand, the Kerala High
Court has recognized marital rape as a ground to take divorce upholding the
sexual rights of women in marriage, while on the other hand, there are some
judgements in which marital rape is not accepted as an offence.
division bench of the Delhi High Court in the case of RIT Foundation v. Union
 gave a split verdict where R. Shakdher J. ruled in favour of
striking down of the Exception 2 to section 375 of Indian Penal Code and
observed, "Consensual sex is at the heart of a healthy and joyful marital
Non-consensual sex in marriage is an antithesis of what matrimony stands for in
modern times i.e., the relationship of equals. The right to withdraw consent at
any given point in time forms the core of the woman's right to life and liberty
which encompasses her right to protect her physical and mental being."
He also highlighted the loophole in the given exception that it did not put into
consideration the right to refusal of wife to have sexual relations with her
husband when he is suffering from sexually transmissible diseases like HIV or a
condition when she is in her menstrual period or having ill health, thus
foregrounded the right to health of women in their marital relationship which is
part of Right to Life under Article 21 of the Indian Constitution.
The Supreme Court in Independent Thought v. Union of India
 raised the
bar of 15 years in exception 2 of section 375 IPC to 18 years and recognized the
rights and bodily integrity of a girl child, but failed to criminalize the
marital rape in general. However, the Supreme Court has upheld the basic human
rights of women in various decisions.
In the landmark judgment of K.S. Puttaswamy v. Union of India
apex court held that sexual privacy is a fundamental right and a forced sexual
act is a clear violation of that right. This judgement has no clear exception
for a married woman, thus the Supreme Court has indirectly upheld the right of
In the case of Joseph Shine v. Union of India
, D.Y. Chandrachud J.
remarked that "�the delineation of the private and public sphere becomes
irrelevant as far as the enforcement of Constitutional rights is concerned� the
enforcement of forced female fidelity by curtailing sexual autonomy is an
affront to the fundamental right to dignity and equality." Hence, the Supreme
Court has taken a progressive approach in recent years in upholding the rights
of women in the marital sphere.
While on the other hand, government defend their standing for not criminalizing
it on the reasoning that criminalizing marital rape will lead to demolishing the
institution of marriage, but it fails to recognize that rape is an act that
destroys the marriage and family at large in itself. Thus the government needs
to accept the fact that such offence exists and disturbs the moral fabric of
Marital rape is the criminal act of rape in itself and its gravity and the
suffering of the victim do not change when committed by her husband, if so, then
why there is no less punishment granted to the husband when he murders his wife.
So, there is no rationale for immunizing marital rape in our progressive
society. We have accepted the cruel acts like domestic violence and harassment
of wife for dowry in the marriage and have made laws dealing with them for the
protection of the victim, but then what stops us from recognizing the outrageous
offence of marital rape.
The offence is committed against society, thus the punishment must be decided on
a human to human basis rather than permeating the relationship bias in deciding
the guilt in crimes and if so then it would defy the purpose of our criminal
Cases and Statutes:
- Meena Kandasamy, When I Hit You: Or A Potrait Of The Writer As A Young
Lady 101 (Juggernaut 2018).
- Raveena RaoKallakuru and PradyumnaSoni,Criminalising of Marital Rape in
India: Understanding Constitutional, Cultural and Legal Impact, 11 NUJS
L.Rev. 1, 121 146-148 (2018).
- Astha Bhattacharya, Supreme Court Recognizes Sexual Rights of All Women.
So How is Marital Rape Still legal? , THE PRINT, https://theprint.in/campus-voice/supreme-court-recognises-sexual-right-of-women-how-is-marital-rape-still-legal/725574/,
(last visited 19 April, 2022).
- Pranshu Bharti, Consent During Sex Should Always be Legally Essential-
Marriage or No Marriage, THE WIRE, https://thewire.in/women/marital-rape-consent-law,
(last visited 19 April, 2022).
- Justice J.S. Verma, Report Of The Committtee On Amendments To Criminal
Law 113 (2013)
- Indian Penal Code, 1860, � 375 No. 45, Acts of Parliament, 1860 (India).
- Indian Penal Code, 1860, � 376B No.45, Acts of Parliament, 1860 (India).
- Indian Penal Code, 1860, � 498A No.45, Acts of Parliament, 1860 (India).
- RIT Foundation v. Union of India, MANU/DE/1638/2022.
- India Const. art. 21
- Independent Thought v. Union of India, (2017) 10 SCC 800.
- K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
- Joseph Shine v. Union of India, AIR 2018 SC 4898.
Written By: Prakshal Jain
, Student at Jagran Lakecity University, Bhopal