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Marital Rape in India: Legal Perspectives and Shadows Unveiled

The word "rape" comes from the Latin "rapere," which means "to steal or carry off," referring to the common practice of ancient Romans who abducted brides from neighbouring tribes. Because rape is intrinsic to human evolution, it is considered a crime against humanity. Ancient texts frequently mention instances of spousal rape. All countries, societies, religions, cultures, and ethnic groups still commit this heinous crime against women today.

regarded as a human rights transgression "Rape" is the term used to describe when a man (a husband) forces a woman (a wife) to have sex against her will or permission. Rapists frequently use violence, intimidation, and the threat of severe repercussions to dominate their helpless victim and force them to give in to their lustful impulses. Incest, gang rape, date rape, child rape, serial rape, marital rape, statutory rape, mass rape by invading armies, and several other ubiquitous types of sexual assault on women's dignity are only a few examples of the various manifestations of rape.

Rape is one of the most heinous and common crimes committed against women. It is the 4th most common crime in India. Rape is defined under Section 375 of the Indian penal code,1860 also known as IPC.

Is Marriage A Contract Or An Agreement?

when two individuals of the same sex agree to get married. Above all, the marriage arrangement must be in writing and they must both have reached the age of majority at that time. The requirements for a legally binding marriage vary throughout religions. All of the foregoing is still true; it is only being done in accordance with their religious customs and traditions.
  • Let's examine the complex topic of marital rape, including its definition, history, legal status, similar laws in other nations, and difficulties in creating laws pertaining to it in Indian legal jurisprudence.

What Is Meant By Rape Under The Law And Its Punishment?

Under Section 375 of IPC, 1860 a man is said to commit rape if he penetrates his penis or inserts, to any extent, any object or a part of the body, not being the penis into the private part of a woman or manipulates any part of the body of a woman under any circumstances:
  1. Against her will;
  2. Without her consent;
  3. With her consent where her consent is obtained by putting her into fear of death or hurt or when her consent is obtained when she is intoxicated or in a state of unsound mind; or
  4. When she believes she is lawfully married to that person but he is not her husband; or
  5. When she is under the age of 18 or when she is unable to communicate consent.

This is rape. There are two exceptions under this Section; the second exception states that a man who does not engage in intercourse with his wife who is not under the age of 15 years is not said to have committed rape.
Further, the punishments for rape are given under Section 376 of the Indian Penal Code, 1860; whenever a person has committed rape he shall be punished with rigorous imprisonment which may extend up to life imprisonment and fine. When it comes to marital rape, it is not defined under IPC due to which a certain class of women is still struggling.

Now It Is A Turn For Marital Rape:

What Is Marital Rape?
There is now no legal provision for marital rape in India. In general, we can comprehend marital rape. Generally speaking, marital rape refers to situations in which a woman is coerced into having sex after marriage against her choice and without her consent. It is defined as one partner forcing the other partner to engage in sexual activity.

History And Nature Of Marital Rape:

As previous understanding of the husband-wife relationship was predicated on the idea that males were superior to women. In a household setting, since men were the only providers, they should be shown greater respect and power, while women were viewed as secondary. It was considered a marital right for the woman's husband to control her body, regardless of her preferences or personal likes and dislikes. To protect their honour from the advancing troops, women in Rajasthan engaged in abhorrent customs like "Sati," when they dove into their husbands' funeral pyres. In legend, the sacrifice was extolled as a symbol of women's virginity and faithfulness.

The voices in favour of equal rights for women started to become more prominent in Indian society as society changed and women started to carve out their own place and succeed in a variety of fields, driven by the global winds of change. The silent revolution has given way to a loud and decisive voice as women's independence, dignity, and right to autonomy over their bodies are being discussed in Parliament, on social media, and through public interest lawsuits that are currently being monitored by the Supreme Court of India.

How Does It Affect A Woman?

In India, marriage and family disputes are also regarded as private matters, but they also violate a woman's right to self-defense in cases where she lives in an abusive relationship with her husband or, on occasion, with her in-laws. She falls subject to abuse at home. One of the most frequent forms of physical, emotional, or psychological abuse that women experience after being married is domestic violence. The worst thing about such a heinous crime against a woman is that, even though her family is aware of it and has persuaded her to stay, very few people come forward to report it.

As a result, we frequently lose an innocent soul. A woman's mental health is destroyed by all these problems; she suffers from trauma day and night for weeks and months, and she is viewed negatively by society if she takes any action to defend herself or is perceived as a disobedient wife.

Constitution Of India:

When a woman is abused by her spouse, her basic rights are being infringed. The Indian constitution stipulates that each citizen has the right to equality and equal protection, as well as the right to life and personal liberty, in Articles 14 and 21, respectively. A woman is nobody's property because she has the same rights as everyone else, notwithstanding the belief held by some men that the person they marry is their property.

In a variety of fields, including athletics, education, and politics, women have repeatedly demonstrated that they are just as talented as men. They will do every effort to accomplish the goal if given the chance or opportunity. Even though they were granted these rights years ago during the drafting of the Indian Constitution, women still have to battle for them. Marital rape is a heinous crime that is prohibited by law in many nations. The Indian government needs to give it some serious consideration.

Marital Rape Outside India And Its Punishment:

Since 1979, a number of nations have made marital rape illegal by amending their penal codes, eliminating their exemptions, or passing laws to protect married women. Several nations, including Brazil, Austria, Belgium, Finland, Canada, Dominican Republic, Ireland, and Israel, have taken the initiative in recent years to change the penal code or decriminalise certain activities before or after the 1980s.
  • In Austria, where marital rape was made a crime in 1979, the maximum penalty is 15 years in prison.
  • Finland outlawed and extended the maximum sentence to four years in 1994. The severity of the punishment increased if the victim was a married woman.
  • Jordan: a spouse who rapes his wife during their marriage faces a minimum of ten years in solitary confinement.
  • Ireland: the criminal legislation there no longer exempts marital rape.
  • Germany: A change was made in 1947 to eliminate the exception.
  • In 1997, the Dominican Republic made spousal rape a crime.
  • In the US, marital rape is now a crime.
  • Israel: In 1980, the Israeli Supreme Court made marital rape a crime with its ruling. It was regarded as a felony offence, punishable by up to 16 years or 20 years.
India: Although marital rape is not yet illegal, there is an exemption to this rule under Section 375 of the Indian Penal Code. A man who has sexual relations with his wife who is older than 15 is not regarded as having raped her. While having sexual relations with a divorced wife is regarded as rape, and under a different legislation, the offender faces a maximum 7-year prison sentence.

Indian Laws On Marital Rape:

India is one of the 36 nations in the world today that hasn't made marital rape a crime. The majority of developing countries are those that do not yet have laws against marital rape.

Case: In the 2018 case Nimishbhai Bhartibhai Desai vs. State of Gujarat, the issue of whether or not a husband compelling his wife to have oral intercourse with him constitutes rape and whether it is punishable under Section 376 of the IPC was brought up.

In taking this case, the court stated that marital rape has not yet been made a crime in our nation. Congressmen are afraid that this will undermine the institution of marriage and that wives will use it as an excuse to act against their husbands and bring false accusations against them. Matrimonial rape is illegal because it is considered to be the same as rape committed by a husband against his wife. Therefore, if a husband beats his wife, he will be prosecuted under the IPC for assault; however, if he forces her to have sex, he will only be charged with assault under a lawful marriage, not rape.

When a spouse sexually assaults a married woman and gets penalised for assault rather than rape, how is that fair? A wife's length of rape can be determined by an investigation, but it cannot reveal the extent of her suffering over the previous few days, weeks, months, or occasionally even years. Even if a husband does something once, it is still a crime against his wife, whom he is sworn to protect and not to put in danger, degrade, or degrade in any manner.

For the harm he has done to a human body, he needs to be punished. The physical and psychological harm he has inflicted cannot be quantified, and no one can make up for his actions. Not every victimised woman chooses to come forward and disclose her violent relationship, thus we should stand behind these women. It is our duty as dignified Indian citizens to support, comfort, and mentor her while also defending another woman.
Married women should likewise be protected, even if it is now recognised that a judicially separated wife in India is protected by distinct law. In order to safeguard Indian women against marital rape, I believe that a modification should be made to remove the second exemption provided under Section 375 of the Indian Penal Code, 1860. It's past time for the Indian judiciary to act and issue a historic ruling regarding marital rape.

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Written By Shifali, A Student Of B.A. L.L.B (Hons) 3rd Year At Lovely Professional University, Punjab 

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