Marital Rape – Legal, Cultural and Social Perspective
One of the most debatable and controversial topics after gay marriage would be “marital rape” not only in India but also globally. This subject raises many hypocrisies about our society and the law. On one hand, rape is deemed a grave offense, often punishable by stringent measures such as life imprisonment or the death penalty. On the other hand, the same act within the bounds of marriage is often justified by archaic customs and rituals.
In India, marital rape remains an exception to the crime of rape under the Bharatiya Nyaya Sanhita. In this paper we will be focusing on the subject of marital rape, whether it should be criminalized, the legal aspect, the cultural attitude, and the social stigma attached to it.
Introduction
Among many sexual and domestic violence against married women marital rape is the most common. It not only harms the body of the victim physically but also mentally, emotionally and socially. Not only in India but in many countries marital rape is not considered a crime but this raises the question “Does marriage make the wife’s human rights disappear’’ or does the wife become ‘less human after marriage’.
Marital rape or spousal rape means indulging in sexual intercourse with one’s spouse without consent. The absence of consent is an essential element and need not include physical violence. Marital rape is deemed to be a form of domestic violence and sexual abuse.
Even though, traditionally sexual intercourse within marriage was regarded as a right of spouses, involvement in the act without the consent of the spouse is now broadly classified as rape by many societies across the world, renounced by international conventions, and progressively criminalized. The Gujarat High Court has said that rape remains a grave offense, even if it is committed by the victim’s husband, and pointed to marital rape being illegal in several countries across the world.
In a judgment on December 8, where he rejected bail for a man accused of rape, Justice Divyesh Joshi of the Gujarat High Court said that “a man is a man; an act is an act; rape is rape, be it performed by a man, the ‘husband’ on the woman ‘wife’”. In his order on December 8, Justice Joshi said, “Marital rape is illegal in 50 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia and several others. In the United Kingdom, which the present Code largely draws from, has also removed the exception according to a judgement rendered by the House of Lords in R v. R in the year 1991. Therefore, the Code that was made by the rulers then, has itself abolished the exception given to husbands.”
According to a 2014 report National Intimate Partner and Sexual Violence Survey, in the United States, about 19.3% of women and 1.7% of men have reported rape during their lifetime. The intimate partners of about 45.4% of females and 20% of males were perpetrators, participants, or facilitators in the rape.
Legal Aspect
The criminal justice system has always been strict towards women’s safety. Under the Bharatiya Nyaya Sanhita (BNS) marital rape is exempt from prosecution under Section 63, which states that non-consensual intercourse between a husband and wife is not considered rape if the wife is over 18 years old. This clause, rooted in colonial-era laws, reflects societal views of marriage as a space where consent is presumed. However, this exemption contradicts Articles 14 (Right to Equality) and 21 (Right to Life and Personal Liberty) of the Indian Constitution.
Marital rape is also a violation of the fundamental right of a woman specifically under Articles 14 and 21 of the Constitution of India. The lack of criminalization of marital rape infringes on the fundamental rights of women. Even though this crime of marital rape occurs within the private sphere of a marriage, it is the responsibility of the state to penetrate this private sphere, then a woman is left without remedy when raped by her husband.
Article 14 of the Indian Constitution deprives equality before the law and equal protection of the laws, that the state cannot deny these rights to any person within India. While Article 21 states about protection of life and personal liberty, this means a state can only deprive a person of their life in accordance with a just, fair, and reasonable procedure established by valid law. The judiciary has made strides, such as the Supreme Court’s decision in Independent Thought v. Union of India (2017) which raised the age of consent for marital intercourse to 18. Yet, marital rape for women above 18 remains unaddressed.
However, some argue that these reasons are erroneous and that marital rape should be criminalized. They point to the lack of alternative remedies for women who are being raped by their husbands and tend to argue that the exception clause is unconstitutional. Hrishikesh Sahoo v. State of Karnataka case decided if the marital rape exception to Section 375 of the IPC violates the fundamental rights of married women. The Supreme Court has deferred a hearing on petitions to criminalize marital rape. The petitions seek to strike down the exceptions in IPC and BNS. A recent affidavit from the Centre argues that criminalizing marital rape would impact conjugal relationships and lead to “serious disturbances” in marriage.
Cultural Attitude and Stigma
Talking about the cultural attitude of Indian society towards marital rape is not very sad. Indian culture does not yet recognize marital rape as an offense against a wife.
Patriarchal Mindset
Society in India is a patriarchal society where the male is considered the head of the family which means the control of the lives of females remains in the hands of male members of the family. Exception 2 of section 365 of IPC represents the patriarchal mindset of the society where the husband possesses right over the body of his wife and it is believed that the wife must fulfil all the sexual desires of her husband.
Taboo
In India, marital rape is a sensitive topic and is not talked by many wives due to the stigma attached to it. Many cases of marital rape are not even reported and the few cases which are reported do not have any remedy to render. Approximately 10-14% of married women are raped by their husbands in the United States. Approximately one-third of women report having ‘unwanted sex’ with their partner.
Normalising Abuse
Historically, most rape statutes read that rape was forced sexual intercourse with a woman, not your wife, thus granting husbands a license to rape. Women who are raped by their husbands are likely to be raped many times—often 20 or more times. They experience not only vaginal rape but also oral and anal rape. Researchers generally categorize marital rape into three types; force-only rape, battering rape, and sadistic rape. Sometimes marital rape victims are not considered as victims and are also blamed for their exploitation.
Conclusion
Marital rape is a serious issue that affects women physically, emotionally, and mentally. However, in India, it is still not recognized as a crime, leaving many women without legal protection. This reflects outdated beliefs that prioritise the institution of marriage over the rights and dignity of women. While many countries have updated their laws to criminalize marital rape, India continues to lag behind.
It is important to understand that marriage does not mean giving up the right to say no. Every woman deserves respect and the freedom to make decisions about her own body. To address this issue, we need both legal reforms and social change. The law should protect women from marital rape, and society must challenge beliefs that allow such abuse to continue. Only then can marriage truly be a relationship built on equality, respect, and consent.
Written By:
- Aditi Akhouri (BA LLB 5th Year, Banasthali Vidyapith)
- Vedant Shekhar (BBA LLB 5th Year, ILS, Ranchi)
