"A man is a man; an act is an act; rape is a rape, be it performed by a man the
'husband' on the woman 'wife'."
In Indian culture, marriage is viewed as a sacred institution that should be based on respect,
love, and trust. But a distressing reality the prevalence of marital rape remains within
these walls of this institution. Englishmen made laws to control Indians when England ruled
India. After marriage, women were regarded as the man's chattel under the majority of these
rules, which are still in effect today and are based on Victorian and English regulations.
According to them, a man has a total authority over his wife's physical being and every aspect
of her life. Men were therefore viewed as socially privileged for having sex with women
without their consent. This essay provides information on marital rape in India, including its
definition, legal standing, historical development, causes, the vital need for legislative
What Is Marital Rape?
The term "marital rape" (also known as "spousal rape") describes non-consensual sexual
contact between a man and his wife that was either induced by force, the threat of force or
abuse, physical or psychological violence, or when she was incapable of consenting. It
encompasses any penetrations (whether anal, vaginal, or oral) made against a woman's will or
without her consent.
India is one of the 150 nations in the world where marital rape is not
recognized by the law.
Unexpectedly, we all hold a belief in this particular type of magic, when a man
and a woman sign a certain paper, take part in a traditional rite, or repeatedly
walk around a
fire and after that, poof, she's consented to have sex with the man whenever he
Legal Status In India:
Despite worldwide awareness and campaigning against sexual abuse, India is still struggling
to recognize and confront this serious problem. Marital rape is not explicitly criminalized in
India. The country's judicial system maintains the "marital rape exception," which protects a
husband from being prosecuted for raping his wife.
Exception 2 to Section 375 of the IPC:
The section that defines what the offence of rape is says: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under
fifteen years of age, is not rape". It basically means that if a married man compels his wife to
have sex against her consent, regardless of physical threats, such as slipping her off a roofie
or threatening to murder her parents, she cannot file a rape complaint with the police. This
exception is based on the Doctrine of Coverture, which states that women in society have a
non-independent locus standi as a result of male-dominated culture.
The Indian Penal Code (IPC) was introduced in 1860, allowing the exception of marital rape
for women over the age of 10 years. It was later amended in 1940 to include women over 15
years old. In 2000, the Law Commission rejected its removal, citing interference in
relationships. Following the Nirbhaya gangrape and murder, the Justice J.S. Verma
Committee recommended removing the exception, but it was not accepted by a parliamentary
panel in 2013
The Supreme Court in Independent Thought v. Union of India
and the Delhi High Court in RIT Foundation v. Union of India
held that the part of Exception 2 of section
375 which excused marital rape of minors between the ages of 15-18, was unconstitutional,
which means that the term 15 years in the exception now needs to be read as 18 years.
Currently, there are no criminal penalties for marital rape when a wife is over 18 years old.
In March 2022, Justice M. Nagaprasanna of the Karnataka High Court declined to throw out
a rape charge against a man accused of raping his wife and keeping her as a sex slave and
expressed the opinion that the institution of marriage cannot be used to confer any special
male privilege or a license for unleashing a "brutal beast" on the wife.
ln an analogous vein,
the Court noted in September 2022 that in order to protect women against forced pregnancies,
marital rape must be seen as falling under the definition of "rape" for the purposes of the
Medical Termination of Pregnancy (MTP) Act.
The Bhartiya Nyaya Sanhita (BNS) Bill, 2023 also retains the provision legalizing marital
rape, unless the wife is below 18. This non-recognition of marital rape contributes to the
invisibilities of trauma and health implications to the women.
So, to cut a long story short, India's rape laws have changed significantly since the
independence, however the exemption for marital rape has remained constant.
Right To Health:
The right to Good Health is a fundamental right enshrined in Article 21 of the Indian
Constitution. Individuals' physical and mental well-being are considered to be part of their
health. Every person has the right to a peaceful and healthy living. The consequence of
decriminalizing marital rape is a breach of this basic right since it lowers a woman's physical
and emotional well-being and causes substantial psychological and bodily injury at the
command of her husband. Furthermore, violent sexual intercourse coupled by extreme assault
and battering can have a terrible effect on a woman's physical and mental health, as well as
induce different Sexually Transmitted Diseases (STDs).
The Distressing Statistics:
The absence of legal protection against marital rape is an urgent women's rights
India, given that estimates from the third (2005-06)r ound of the National
Family Health Survey (NFHS) revealed that the prevalence percentage of Intimate
Partner Violence (IPV) against women ranges between 3% to 43% in different
states of the country.
The 5th round of the survey, held in 2019-2010, suggests
that 1 in 3 women in India aged 18-49 experience
spousal violence. According to this study, 5.6% of married women were physically
into having sex with their husbands, 2.7% were coerced into having unwanted sex,
were threatened with physical violence into having sex against their will.
Under-Reporting Obscures The Problem's Real Scope.:
The NFHS survey warns against "under-reporting" because anecdotal evidence gathered by
the study indicates that approximately 9 out of 10 victims of intimate partner violence refused
to disclose the violence or abuse they suffer due to a variety of factors, including fear of
stigma, reprisals, and entire reliance on the spouse.
According to the NFHS11, 82% of married
males were sexually aggressive with their wives, as did 13.7% of former husbands, making
spousal sexual violence a major problem. It was also shown that 90% of survivors of marital
sexual assault did not take any action or seek help.
Despite the circumstances, marital rape is still considered a domestic violence issue in India.
As a result, the remedies available to a victim are civil in nature and are restricted to
"protection orders, judicial separation, and monetary compensation" under The Protection of
Women from Domestic Violence Act, 2005.
'No exception under law can be so absolute that it becomes a license for the
of a crime against society'.
The Countries Which Have Criminalised Marital Rape:
Poland was the first country to expressly outlaw marital rape in 1932. The
marital rape in Australia began in the state of New South Wales in 1981 and
expanded to the other states between 1985 and 1992. Since 1993, marital rape has
been a felony in each of the US's 50 states.
The exemption was similarly abolished in Nepal in 2002 after the country's Supreme Court
ruled that it violated both the right to privacy and equal protection under the law. Since 1992,
marital rape has been prohibited in the UK, where it is seen as a form of domestic violence.
Several nations have passed laws eliminating the marital rape immunity in the 1980s
including Canada, Ireland, South Africa along with others.
Factors Contributing To Marital Rape Perpetuation:
- Patriarchal Standards:
India's patriarchal culture often views wives as property of the husband, requiring them to obey and fulfil their husbands' wishes.
- Fear of Social Stigma:
Victims are compelled to keep their traumatic experiences a secret out of fear of social stigma, victim-blaming, and family dishonour.
- Religious and Cultural traditions:
Although some religious and cultural traditions in India may not support marital rape, they may unintentionally uphold the notion of female servitude and marital enslavement.
- Limited Awareness:
A sizeable portion of the Indian population still doesn't understand what marital rape is because of a lack of education and exposure to progressive ideas.
- Weak Enforcement of Existing Laws:
Although India has laws prohibiting sexual assault and domestic abuse, enforcement is patchy and does not specifically address marital rape.
The Vital Need For Legal Reform And Social Change:
Criminalization of Marital Rape:The legal system can recognize women's rights to be free from violence, regardless of their marital status, by removing the marital rape exception.
- Establishing helplines, counselling centres, and shelter homes can provide much-needed support and assistance to survivors of marital rape.
Education and Awareness:
- Comprehensive educational programs should be implemented at schools, colleges, etc to raise awareness about marital rape, consent, and gender equality.
- Addressing patriarchal norms and stereotypes is critical to effectively combating marital rape. Encouragement of gender equality and mutual respect within marriages will aid in breaking the cycle of violence.
Enhancing Law Enforcement:
- It is critical to train law enforcement organizations to handle marital rape cases sympathetically and quickly. Effective enforcement of current laws can serve as a deterrence to potential offenders.
Susceptible To Misuse:
While many may call for the criminalization of marital rape, many campaigners believe that
we must not ignore the rights of males in this discussion. They contend that making marital
rape a crime might encourage some women to purposefully make false accusations against
Given the nature of the crime and the absence of any witnesses in the bedroom,
it would come down to "her word vs. his." In marital relationships, a medical evaluation
would be pointless unless there was some type of cruelty involved. It would also be difficult
to pinpoint the exact moment when consent was denied or rescinded.
This, combined with
gender-specific rape laws and established evidence law norms like the presumption of lack of
consent and entire reliance on a rape victim's only testimony even in the absence of
corroboration, make it a formidable provision with a high danger of misuse. Its prohibition
has also been hampered by worries that disgruntled wives may use "rape" accusations against
husbands as leverage for coercion, blackmail, or punishment.
The Institution Of Marriage And How It Facilitates Special Treatment:
The Delhi High Court heard the last rebuttals from the organisations in favour of retaining the
marital rape exception in January 2023,with attorney J. Sai Deepak bringing the Men's
Welfare Trust's case(petitioner) to a close. Sai Deepak and RK Kapoor both cited Supreme
Court rulings that stated marriage created a special relationship between the parties and that
this allowed for different classifications of sexual offenses against women. They contended
that since the legislature obviously intended differential treatment depending on marital status, it was incorrect to state that the definition of rape in Section 375 applies uniformly to
all situations in which a woman does not give permission.
Sai Deepak argued before the bench that marriage had altered everything. He stated that rape
is an act with context or surroundings. As a result, context and consent are inextricably
linked. What does it matter if the consent is given five minutes before the wedding or after? A
number of factors come into play. He further asserted that married women who are coerced
into having non-consensual sex by their husbands already have access to adequate legal
remedies under the Indian law.
India's struggle to criminalize marital rape has been precarious. In May of this year, the Delhi
High Court issued a 1:1 split ruling on the question of criminalizing marital rape, stating that
the matter will be heard by the Apex Court. The two-judge bench of Rajiv Shakdher and C
Harishanker disagreed on whether some sexual actions performed by a husband may be
considered constitutional or not.
In July 2023, the Supreme Court had decided to defer the hearing of the marital
until the constitution benches complete their ongoing hearings.
In a nutshell, marital rape remains a serious issue in India, but progress can be made by
making it a criminal offense, increasing awareness, and challenging traditional patriarchal
values. Even now, many women are unaware that they have the legal ability to prosecute their
husbands for such offenses, or that their consent is necessary before their spouse may make
even the most subtle sexual approach.
Women must be educated about their legal rights.
Those who have been assaulted should have the guts to come up and speak. Articles 14
,15, 19, and 21of the Indian Constitution protect fundamental rights, including the right
to live in dignity, the right to privacy, the right to sexual autonomy, and the right to
"Expectations of sex in marriage cannot lead to forcible sex", as rightly submitted by
senior advocate Rebecca John before the Delhi High Court in RIT Foundation vs Union of
India. Thus, it requires a collective effort from individuals, communities, lawmakers, and civil
society to create a culture of consent, respect, and gender equality. Only then can we hope to
eliminate the lasting impact of this terrible crime and ensure everyone's safety and justice.
Award Winning Article Is Written By: Ms.Shailja Singh
Authentication No: NV368915987295-19-1123