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Marital Rape: No Means No Even After Marriage

Marriage is the most sacred social institution in India. When a man and a woman get married, they promise to always support and love each other in sickness and in health. The bond between a man and a woman is said to represent eternity and a triumph of love and respect.

But in recent times, the term marital rape has come into light and has become a major topic of debate. How can an institution like marriage be considered sacred if the wife constantly suffers with physical and mental trauma? Rape is rape. So why does our Penal Code treats 'she's my wife as a defense?

The patriarchal society has always treated a woman as her husband's property. According to them the only job of a woman is to serve her husband. But a marriage should not be viewed as a license for the husband to rape his wife in impunity. But the main question that arises here is that how can rape be justified in a marital bond? In order to answer this question one needs to understand the concept of rape first.

Being persons, then, women are citizens; and no state has a right to make any new law, or to enforce any old law, that shall abridge their privileges or immunities.-Susan B. Anthony

What Is Rape?

  • The word rape has been derived from the Latin verb rapere, which means to seize or take by force. According to the Cambridge dictionary, the term rape means to force someone to have sex when they are unwilling, using violence or threatening behavior.
  • In the Indian Constitution section 375 deals with the offence of rape. This section defines rape as sexual intercourse with a women against her will, without her consent, by coercion, misinterpretation or fraud or at a time when she has been intoxicated or duped, or is of unsound mind and in any case if she is under 18 years of age.

    For any act to become an offence of rape under the Indian Penal Code two conditions are needed to be fulfilled:
    1. Actus Reus

      It means an act done in pursuance of mala fide/evil intention.

      So, in order to constitute the offence of rape a man must commit any one of the following 4 acts:
      1. If a man penetrates his penis into her mouth, vagina, urethra or anus of a women to any extent or forces her to do such an act with himself or any other person
      2. When a man inserts an object or any part of the body apart from his penis into the vagina or the urethra or the anus of a women or forces her to do so with himself or any other person.
      3. If a man manipulates any part of the body of a woman in order to cause penetration into the vagina or urethra or the anus.
      4. If a man applies mouth to the vagina, urethra or anus of a women.
    2. Mens Rea

      It means the guilty mind/evil intention of an accused.
      It will be considered rape only on the grounds that:
      1. The act happened against her will
      2. The act happened without her consent
      3. With her consent, when her consent had been obtained by putting her or any person in whom she is close to, in fear of death or of hurt.
      4. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
      5. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
      6. With or without her consent, when she is under sixteen years of age. Explanation (Penetration is important to constitute the sexual intercourse necessary for the offence of rape.)

There are certain exceptions for rape as well:

  1. A medical procedure or an intervention shall not shape as the offence of rape.
  2. Sexual intercourse between a man and his wife will not be considered as an offence of rape, given that his wife is not under 15 years of age.
The second exception is known as marital rape.

Marital Rape

Marital rape is a very serious form of intimate violence. According to the Oxford English dictionary, the definition of marital rape is defined as, the sexual intercourse forced on a woman by her husband, knowingly against her will. The issue of marital rape is very common but often not talked about. In fact, many people don't know how prevalent it is, or the need for stronger laws criminalizing it.

There are principally three kinds of marital rape:
  1. Force-only rape - Husband uses enough force to coerce the wife into having sexual intercourse.
  2. Battering rape � When the women are raped and simultaneously battered by their husbands (beaten, pushed, slapped etc.) In this kind of rape, women suffer both physical and sexual violence.
  3. Sadistic/obsessive rape � This involves torture. Pornography is frequently involved in this form of rape.

Marital Rape Laws In India

Legally, marital rape is not an offence in India and doesn't come under section 375 of the IPC which deals with the offence of rape.

It was presumed that marriage gives authority to the husband regarding consent for sex and criminalizing marital rape in turn would weaken the family values.

Under section 375 of the Indian Penal Code, the definition of rape is when a man has sexual intercourse without the other person's consent. This section explains the offence of rape and when an act becomes rape. It also provides certain exceptions, one of which is medical procedure and intervention and the other one is sexual relations between a husband and wife, who is not fifteen years or below is not considered rape.

But what if the wife is above the age of eighteen years and the husband forces her to get intimate with him without her consent? Section 375 of the IPC only considers the rape of a minor girl as a crime. The law here does not give equal representation to all women and thus, stands biased.

We all think that the section 375 does not address the offence of marital rape but the important fact here is that the second exception states the phrase sexual intercourse by a man with his wife, which means they are legally married. Section 375 addresses the offence of marital rape but with its limitation of age.

This interpretation means that if a girl is above the age of eighteen and if she is married then the husband gets a license to have sexual relations with her without her consent.

The foundation of this statement can be traced back to the statement made by Sir Matthew Hale, C.J., in the 17th century England. He wrote:
The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, which she cannot retract.

According to this statement once married, a woman cannot refuse sexual relations with her husband. Marriage constitutes permanent consent that cannot be retracted.

Constitutional Validity

The rape laws of our country do not include marital rape as an offence and ,thus, violates Article 14, 15 and 21 of the Indian Constitution.

Article 14 states equality before the law and equal protection of law. In this scenario, the law does not give equal protection to all the women. The second exception for the offence of rape clearly discriminates between a married woman above the age of 15 and below the age of 15. This exception, by not giving punishments, encourages sexual coercion if the women is above the age of 15 and is married. Thus, Article 14 of the Indian Constitution is violated.

Article 21 provides for the right to life and personal liberty. It also includes the right to privacy, dignity, health, safe environment, etc. In the case of Suchita Srivastava v. Chandigarh Administration, the Supreme Court clearly mentioned that the right to make choices in sexual activity is also included under the right to personal liberty which is a part of Article 21.

The Supreme Court also in its judgement for K.S. Puttuswamy v. Union of India recognized the right to privacy as the fundamental right. Thus, any forced sexual act violates their privacy which is their fundamental right. Here, the second exception not only violates the right to privacy but also the right to live a healthy and dignified life.

In order to protect women from domestic violence, the Protection of Women from Domestic Violence Act, 2005 was enacted by the legislature. This act does not consider marital rape as a crime but treats it as a part of domestic violence.

Under this act if the woman is subjected to marital rape then she can approach the court not against the offence of rape but for separation from her husband on the grounds of cruelty.

Cruelty is the violation of the fundamental right of life and dignity which the Indian Constitution entrust. Hence, cruelty is a major ground for dissolution of marriage.

Section 498-A

This section states that Whoever, being the husband or the relative of the husband of a woman, subjects such women to cruelty shall be punished with imprisonment for a term which may extend to 3 years and shall also be liable to fine,

According to this section, cruelty constitutes of:
  1. Any deliberate conduct which is of such a nature that is likely to induce a woman to commit suicide. Moreover, it may cause a serious injury or danger to life or health (mental as well as physical) of the woman; or

  2. Harassment of the women where such harassment is with an intention of coercing her or any person related to her to meet any illegal demand for any property or valuable security. Moreover, it includes coercion on account of failure by her or any person related to her to meet such demand.

Stand of Various Organizations On Marital Rape

The issue is the consent of the women, and if it isn't there, it is rape, says UN chief Helen Clarke
  • The United Nations Convention on the elimination of all Forms of Discrimination Against Women (CEDAW) viewed, India's such kind of discrimination against women violated the principle of equality of rights and violation of human dignity or respect of women, in spite of it being one of its major signatories.

  • According to the UN population Fund, more than two-thirds of married women in India, aged between 15-49 have been beaten or forced to have sexual relations.

  • In 2011, the international Men and Equality Survey stated that one in five men have forced their wives or partners to have sex.

  • The Pan Rajput committee which was appointed by the center to look into the matter of marital rape submitted its report to the Women and Child Development (WCD) ministry and has recommended that as a pro-women measure, marital rape should be considered as an offence irrespective of the age of the wife and the relationship between the perpetrator and survivor.

  • WCD minister Maneka Gandhi also voiced her support on the view that marital rape was a form of domestic violence against women and was unacceptable. According to her, violence against women should not be limited to violence by strangers. She further stated that violence against women is not always about a man's need for sex, many times or not it's also about his need for power and subjugation. In such a situation, it should be treated with seriousness.

  • Justice J S Verma committee has also recommended the criminalization of marital rape. It is also observed that sexual violence was being legitimized under Armed Forces Special Powers Act (AFSPA). Most of the suggestions of this committee have been incorporated under the Criminal laws (Amendment) Act 2013, such as extending the definition of rape to include non-penetrative acts of sexual nature. However, the proposals made by the committee for the offence of rape were rejected.

  • According to the International Centre for Women (ICRW) and the United Nations Population Fund's (UNPFA), One-third of husbands have admitted to having sexual relations with their wives without their consent.

India is among the thirty- six countries where marital rape is still not criminalized. It is a fact that women who are raped by their husbands are more prone to various other types of domestic violence. It is a very serious form of crime and requires the urgent attention of the government. Recently, a private bill (THE WOMEN'S SEXUAL REPRODUCTIVE AND MENSTURAL RIGHTS BILL, 2018) was presented in the Lok Sabha by member of the parliament, Dr. Shashi Tharoor.

The bill talks about the deletion of exception 2 from the section 375 of the IPC, which clearly states that the sexual intercourse between a married man and a woman is not considered rape. Positive changes are happening in India and better laws are being implemented for women but an offence like this not only damages a woman physically but it hampers her mental state as well. So, the Indian government should pay special attention in this matter and take adequate steps in order to ensure that right to dignity and self-respect of a woman is not violated.

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