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Marital Rape: The Lingering Indian Paradox

Rape is not only a categorical representation of the human defect in recognizing other people as human but also objectification of their physical and mental existence while degrading their bodily autonomy . According to a report of 'World Population Review' titled ' Rape Statistics by Country 2022', 'approximately 35% of women worldwide have experienced sexual harassment in their lifetime'.

Though rape is not a crime which is committed only by men against women, it many a times also reverse the genders, even replace the genders and to a greater extent, even replace the species. But according to a report of RAINN titled 'Victims of Sexual Violence : Statistics', 'women and girls experience sexual violence at high rates in comparison to men'.

The Constitution of India grants 'Equality before Law' and 'Equal Protection of Law' under Article 14 and 'Right to live with dignity' under Article 21 to every citizen including "girls and women". But what if these fundamental rights of a woman are being violated by her own husband who she considers as her better half, a life partner and a trusted person.

This violative behavior emerges from the place where women are often considered as sex objects and marriage is considered as a license to rape. Thus, this article throws light on the history of marital rape across the world and specifically in India along with further way forward.

Legality of marital rape across the world

Marital Rape got consideration as a crime across the world during 1970s, before which the idea of marital rape as a crime was alien to the world at large. In United States of America, Oregon passed a law in 1977 removing marriage or co- habitation as a legal defense to a charge of rape. And the very next year, Oregon vs Rideout (1978) became the first case in which a man was charged with raping his wife while they were still living together. In 1993 all 50 states of United States of America criminalized the crime of marital rape.

In the R vs R (1991) UKHL 12, the House of Lords in UK determined that under English criminal law, it is a crime for a husband to rape his wife.

As of 2019, marital rape has been criminalized in 150 countries. Though the situation across the world regarding the marital rape is still not very good, as criminalization of marital rape does not guarantee the effective implementation of legislations. In 2019, the then Executive Director of UN Women said in her forward that ' We have seen great progress on eliminating discrimination against women in laws, however it is no accident that family laws have been the slowest to change.

The shocking pervasiveness of intimate partner violence means that statistically home is one of the most dangerous places to be for a women'. According to the World Report on Violence and Health, intimate partner violence pertains to intimidating behaviors including forced intercourse and other forms of sexual coercion. This proves that marital rape along with other intimate partner abusive behaviors are prevalent to a great extent in the world at large.

Status of marital rape in India

In India rape is defined under section 375 of the Indian Penal Code, 1860 and section 376 contains provisions with regard to punishment for rape. In India marital rape is still not a criminal offense but there is an exception under section 375 of Indian Penal Code, 1860. Under section 375, exception 2 of the Indian Penal Code, a husband committing sexual intercourse with his wife who is below 15 years can be punished for rape. Though in Independent Thought vs Union of India case, the age of 15 years was replaced with 18 years by Supreme Court. But any non consensual sexual intercourse by a husband with his wife above 18 years of age is still not a criminal offense in India.

Further exceptions to non legality of marital rape is when the sexual intercourse has been done by coercion, threat, physical violence or mental torture with a wife of unsound wind or where she is unable to give her own consent. Thus, in above scenario it will be considered as a sexual abuse.

Sexual intercourse by a man with a woman with whom his marriage is void because he was already married and the other party was aware about the existence of a living spouse and first marriage, will amount to rape.

Sexual intercourse by a person with his own wife who is under a decree of separation or otherwise, is living separately is made an offence under the Indian Penal Code. Though the punishment with regard to above scenario is very minute in comparison to sexual intercourse with a wife below 18 years of age.

Provided that in all the above scenarios except for sexual intercourse with a wife below 18 years of age, the nature of sexual intercourse should be nonconsensual.

Although there is no direct and adequate provision with regard to marital rape being a criminal offense. But sec 498A of Indian Penal Code which was inserted specifically to deal with cases of cruelty against women is primarily used as an alternative to cases of marital rape. Though this section is not adequate to deal with the cases of rape as the nature of the offense of rape is very different from that of cruelty.

Indian judiciary have shown quite progressive views towards criminalization of marital rape. In Sakshi vs Union of India�, the Supreme Court had recognized the inadequacies regarding the law relating to rape and had suggested that the legislature should bring about changes in the law.

Recently Karnataka High Court's single judge bench of Justice M Nagaprasanna said that ' 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 the 'wife'.

Types of marital rape

In Nimeshbhai Bharatbhai Desai vs State of Gujarat⁴, the court laid down 3 types of marital rape:
  • Battering rape:
    This type includes physical as well as sexual violence towards wife.
  • Force only rape:
    In this type of rape husband use only that amount of force which can pressurize the wife for sexual intercourse.
  • Obsessive rape:
    The most vicious form of marital rape which can be termed as sadistic rape where perverse sexual acts in fierce form are involved.
These types were laid down by Hon'ble Gujarat High Court while emphasizing that 'a husband cannot be permitted to treat his wife like a chattel and violate her dignity'.

Problems arising with regard to criminalization of marital rape
  1. The biggest hurdle in the criminalization of marital rape is the burden of proving nonconsensual nature of sexual intercourse. There is a high risk of the legislation being misused, as criminalizing marital rape will mean entering the bedrooms of the people and figuring out their intent, which comes out to be very daunting.
  2. Indian society gives a lot of importance to the institution of marriage. Thus, the state would want to protect the institution of marriage for the larger stability of the society.
  3. On whom the onus of proving the consent will lie i.e. on victim or accused.

Important recommendations with regard to marital rape
The J S Verma Committee report⁵ which was set up after the Nirbhaya Gang Rape case gave suggestions with regard to criminalization of marital rape. It suggested that the exception clause should be removed, consent should be the basic principle for deciding the existence of rape, marriage should not be used as a defense against rape and extent and nature of punishment should be same as in case of rape.

The 42nd Law Commission⁶ suggested that there should be a separate section with regard to marital rape in Indian Penal Code.

Way Forward
  1. There should be a system drawn specifically for the cases of marital rape to prove the presence or absence of consent which will require specific additions in the existing provisions of evidence law.

  2. Exception to section 375 should be removed and a special provision with regard to marital rape should be adopted in Indian Penal Code.

Award Winning Article Is Written By: Ms.Ruchi Mahil

Awarded certificate of Excellence
Authentication No: AR210158527981-11-0422

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