In the following paper, the concept of rape, marital rape, sexual violence
and laws relating have been explained. The reasons for marital rape have been
high lightened. Further on the age of consent, age of consolidating a marriage
and the conditions required have been given according to the laws in the Hindu
and Muslim marriage acts have been specified. The main objective of this paper
is to answer the question whether marriage is a medium of consent for sexual
The paper proves that women have the right to refuse and marriage does not
amount to consent. Since marital rape is not fully criminalized due to factors
like society, male dominance and historical cultures it is important to know
laws regarding Indian penal code, grounds for divorce in marriage, Hindu laws
and fundamental rights have been specified.
The significance of financial constraints and education has been proven through
the national family health survey. Finally the paper discusses about personal
views and concluded why criminalization of marital rape is important.
Rape is a sexual assault that involves sexual intercourse taken place without
the persons consent. It is an act that violates the physical, mental and
psychological well being of an individual. According to the Protection of
Children from Sexual Offenses Act (POCSO) the age of consent has been changed
from 16 to 18 years. In India, rape done by a third member (outsider) falls
under section 375 and 376 of the Indian Penal Code, 1860.
Surprisingly, it does not involve marital rape under the same section. Before
arguing why or why not this form of activity is not rape, it is important to
understand what is marital rape and how does consent play a significant role in
marriage. Marital rape involves sexual intercourse with the other wedded partner
without her assent or by anger, force or compulsion. Girls above the age of 18
and boys above the age of 21 are legally permitted to get married and this age
is the age of consent for marriages.
The difference in the age of women and men has raised various questions such as
whether women are more mature than men at an earlier stage, to promote the
prejudiced idea that women must be younger than the man. There is no scientific
backing about how mature each gender can be, which gives a strong basis to the
law commission in its report to have a uniform age for men and women. This
differentiation leads to discrimination. But the main question is whether
marriage can be used as a form of consent for sexual intercourse.
Marriage is just not a relationship between two people but it is a relationship
between two families. Just because two families agree to consider the marriage
it does not amount to consent. Consent during a marriage is very important due
to the following reasons:
- Firstly, the man and women would be living with each other and since
marital rape is not yet criminalized it is essential for the women to be
comfortable and safe.
- Secondly, most of the women are not independent and are dependent on
their family which gives an upper hand and dominance.
- Thirdly, in a patriarchal society like ours people normalize men being
dominant, violent and abusive.
- Fourthly, divorce is considered a taboo in our society.
Keeping all these factors in mind it is important for the man and women to know
what they are dealing with. In the historic era, many families thought that it
is man's right to have sexual intercourse with his wife and the wife's duty is
to accept it without any objections. But this is the modern era and there have
been many changes in the areas of society, marriage, laws and mind-sets.
Another reason why marital rape is not criminalized because many wives will
voice their tights which will lead to multiple case of divorce which is
considered a taboo in India. Marriage does not amount to consent.
Consent means giving permission for something to happen. But marriage is a phase
of a thousand other little things that society fails to point out. Marriage is a
social contract not a blanket of consent used for sexual intercourse. It is on
the women's desire to indulge in any activity whether married or not.
The husband is charged for violence for beating his wife or any other acts of
cruelty that amount to domestic violence. But the fact that rape is not
criminalized which is more grave than violence.
In a crime, the mental element, mens rea is necessary to constitute the crime.
In rape cases the presence of mens rea proves it when the man is aware that the
women is not consenting for it. But men feel that they don't have any guilty
mind. They believe it is okay to force their wife. They deny mens rea.
Since a very long time, society has always considered women as being the
homemakers and a property of her significant other. The shield of wedding right
and women as a tool of sexual satisfaction and has no say over her sexuality has
impacted our legislators by disregarding offence of rape. This entitlement has
affected the uniformity and equity. Rape is just not a savage act bit also a
grave infringement of personal liberty and individual freedom.
To have a greater insight about marital rape its important to understand the
laws in India. Under section 375 of the Indian penal code- "sexual intercourse
by a man with his own wife, the wife not being under 15 years of age, is not
Under section 376 of the Indian penal code:
"Whoever, except in the cases provided for by sub-section (2), commits rape
shall be punished with imprisonment of either description for a term which shall
not be less than seven years but which may be for life or for a term which may
extend to ten years and shall also be liable to fine unless the women raped is
his own wife and is not under twelve years of age, in which cases, he shall be
punished with imprisonment of either description for a term which may extend to
two years or with fine or with both: Provided that the court may, for adequate
and special reasons to be mentioned in the judgment, impose a sentence of
imprisonment for a term of less than seven years".
The protection of women from domestic violence act, 2005, under this act marital
rape will under domestic violence. Under this act, the spouse has the right to
approach the court and plead for legal partition. Article 21 talks about right
to life and dignity and the supreme court of India has held in multiple cases
that the offense of rape abuses the fundamental right of article 21.
Right to privacy has been expressly stated in the constitution in many cases
like Kharak Singh v. State of UP
and the Puttuswamy case
right signifies the right to sit unbothered and not aggravated. A women is
entitled to her sexual privacy and she is not open to violate her privacy
whenever he wishes. marital rape just not physically and socially violate a
women's dignity but it also puts a lot of mental pressure and depression. The
women do not feel safe in their own households and are subjected to various
abuses and attacks if they try to raise their voice.
Marital rape is not completely criminalized it is considered to be more of a
wrongdoing against women and is given some legal consideration. The law has to
recognize criminalization of marital rape and methods to prove the same. This is
just not a method to stabilize the dignity of the women but also bringing a
change in the society for the protection and right of women.
Under the Hindu marriage act, section 5(i)(b) specifies consent during the time
of marriage wherein both the parties are capable of giving consent and not
suffering from any mental disorder, unsoundness of mind or is subject to
recurrent attacks of insanity. The bible preaches mutual consent of both the
parties and they shouldn't deprive each other forcefully. Under Muslim Marriage
the age of consent is sixteen years and if the male is less than twenty one
years and the women less than 18 years then the presence of the father if living
otherwise presence of guardian or mother.
There are various problems in this situation:
- Firstly marriage is considered as a consent given to the husband. The
whole institution of solemnizing of marriage forms a basis of sexual
intercourse between the couple. But this does not have any legal backing.
- Secondly, in a patriarchal society like ours we consider men as a
dominating character in the relationship and the man is usually older than
- Thirdly, the aggressive nature (drunk, overreacting, violent) of the man
is not considered cruel. It simply establishes the fact that women should
tolerate this behavior of their beloved husbands.
- Fourthly, in most rural parts of the country women are not financially
independent, uneducated and are constantly worry about their children which
gives an upper hand to the breadwinner.
- The last and most important factor is the unreason ability of the law
and not recognizing marital rape as an offense. Social disagreement is a
factor which stops the women from speaking up.
According to the national family health survey 5 (2019-2021) women among the age
of 18-49 who have been victims of marital rape, 83% report that their current
husbands were responsible and the rest 13% report that their formers husbands
were to be blamed. It has been concluded that the husband is the perpetrator for
married women who have been victims of sexual violence. Survey 4 held
approximately 5 years showed similar data.
Karnataka has the highest percentage (10.3%) of women been victims of marital
rape or sexual violence by their husbands. Followed by west Bengal(9%),
Bihar(8.1%) and Ladakh (7.7%). During this enquiry it was concluded that only a
small fraction of women asked for help. It was also surveyed that only 14% of
the total victims asked for help and 77% never asked for help seeking for their
rights in any form.
They also claimed that they never mentioned anything to their parents or
in-laws, the reason being that they would not get enough support due to various
factors like social standing, financial difficulties, and concern for their
children. It is important to know that wealth and education plays a very
significant role, the survey brought out 7.2% of women who have less than 5
years of schooling as victims of sexual violence. However, 2.9% of women victims
had 12 years or more schooling. Coming to financial independence, 10.2% women
constituted low wealth holdings and 3.1% were among the rich class.
After knowing how marital rape is and its hurdles to prove the offense it's
important to criminalize marital rape. In our society the notion of marriage as
a consent to sexual intercourse does not have a legal and logical backing. Since
women have the right to liberty and rape is an offense under the Indian penal
code, the act of rape done by the husband does not make it less grave. After
analyzing multiple offenses and circumstances we have understood that consent is
one of their key determining factors. Certain laws have been made in the 19th
and 20th century and since people change laws also have to be changed.
The paper couldn't stress enough on how important education and financial
stability of women is. The society, traditions and historic cultures are still
respected and prevailing but it does give license to grave offenses like marital
rape and having notions like women and obliged to give pleasure to their husband
since she has agreed to marry him. The law should be more concise on what
marital rape is and how it should be proven.
The data proves the percentage of women surveyed but the journey doesn't end
here, since the issue is not punishing the people, the motive is way beyond. It
takes years to punish a man but it takes centuries to change a mind-set.
Award Winning Article Is Written By: Ms.Aditi Sanjay
Authentication No: OT228246275045-9-1022