A Critical Analysis on the Criminalization of Marital Rape

Introduction :

India celebrates 70 years of Independence and still women of the nation are neglected and are not truly free and independent. Rape per se is an offence against women, violating her dignity and self-respect and when it occurs within four walls of a matrimonial home, it reduces the woman to the status of an object used mainly for sexual gratification. Marriage is a sacred social institution in India. The most unique aspects of the relationship between husband and wife are the legal sanctions attached to their sexual relationship. But, marriage has now become a license to rape. How can husband be given the right to rape his wife? Rape is Rape. How can the institution of marriage be called a sacred one if women suffer physically, mentally and emotionally without any remedy against it. To answer this, the paper has discussed the concept of marital rape, the existing laws in India, the judicial cases, the International scenario and need to review marital rape laws.

Concept : The sexual intercourse between husband and wife is considered  legal because Marriage in Indian Society  is a legally sanctioned contract between a man and woman, and  it is the very foundation of a stable family and a civilised society. However, such institution veils acts like sexual cruelty and other forms of brutality in the household. Marital rape is one such brutality. Marital rape can be defined as any unwanted intercourse or penetration (anal, vaginal or oral) obtained by force, threat of force or when wife is unable to consent.

Though marital rape is the most common and repugnant form of masochism in Indian society, it is hidden behind the iron curtain of marriage. Social practices and legal codes in India mutually enforce the denial of women sexual agency and bodily integrity, which lie at the heart of women human rights. Rape is rape. Be it stranger rape, date rape or marital rape. The law does not treat marital rape as a crime. Even if it does, the issue of penalty remains lost in a cloud of legal uncertainty. The legal system must be forced to accept rape within marriage as a crime. Further, women themselves must break free of societal shackles and fight for justice. They must refuse to comply with the standards applied to them as the weaker sex.

The offence of marital rape has not been sufficiently accounted for in the law. The law does not punish rape within marriage if the woman is above fifteen years of age. Forced sexual intercourse is an offence only when the woman is living separately from her husband under judicial separation/custom. It must also be remembered that situations of marital rape occur within the confines of the home, and therefore there are often no witnesses to the crime.

Among all the crimes against the women, marital rape seems to be the most under reported crimes in the country. The reason for this is the lack of awareness among people and also the fact marital rape is not an offence in the IPC under Section 375. Further a study done by International institute of Population Sciences, Mumbai reported that 26 per cent of women in Pune, 23 per cent woman in Bhubhaneshwar and 16 percent in Jaipur often have sex with their husbands against their will. Such statistics clearly illustrate the victimisation of women and sexual intrusion in marriage being a common phenomenon.

Indian society can still be considered to be a conservative society, where the woman is restricted from discussing her sexual as well as her personal life with anyone. Even if woman complaints then also most of them restrict themselves to mental and physical harassment Even if they try to do, there is no law that can book a husband for rape if the wife’s age is more than 15 years.

Types Of Marital Rape :

The following three kinds of marital rape are identified by legal scholars as generally prevalent in the society :

Battering rape: In battering rapes, women experience both physical and sexual violence in the relationship and they experience this violence in various ways. Some are battered during the sexual violence, or the rape may follow a physically violent episode where the husband wants to make up and coerces his wife to have sex against her will. The majority of marital rape victims fall under this category.

Force-only rape: In what is called force-only rape, husbands use only the amount of force necessary to coerce their wives; battering may not be characteristic of these relationships. The assaults are typically after the woman has refused sexual intercourse.

Obsessive rape: Other women experience what has been labelled sadistic or obsessive rape; these assaults involve torture and/or perverse sexual acts and are often physically violent.

History of the anomaly of marital rape :

18th century English law had a set of rules where the wife was considered being dependent on her husband, incapable of independent existence. Husband and wife were marked as one entity, and all the rights of the wife (including her sexual rights) were subsumed by those of her husband. Exception 2 of section 375 was a result of these blanket rules that arose in 18th century English law.

The husband was the master to the wife and enjoyed privileges over her body and could not be fathomed for raping his wife. Women were treated like chattel by their husbands. In 18th century England, women were confined to the domestic sphere, and the state ensured that they remained dependent on their male counterparts. It is strange to presume that this still applies to modern day India in the 21st century where women have become individualistic and capable of giving assent. Women are no longer dependent. They are independent citizens under law.

Laws In Other Countries :

Most of the common law countries like Australia, South Africa and Canada have followed the England system and have abolished marital rape law exemption. For instance, in Australia under Section 73(4) of the Criminal Law Consolidation Act, 1953 provides “No person shall, by reasonably of the fact that he is married to some other person, be presumed to have consented to an indecent assault by that other person.”

Similarly, in South Africa the concept of exemption on spousal rape has been repealed. Under Section 5 of Family Violence Act 1993: “Notwithstanding anything to the contrary contained in any law or in common law, a husband may be convicted of the rape of his wife.”

Even Canada also has repealed the exemption in the spousal rape in 1983.


In India marital rape exists de facto but not de jure. While in other countries either the legislature has criminalized marital rape or the judiciary has played an active role in recognizing it as an offence, in India however, the judiciary seems to be operating at cross-purposes. In Bodhisattwa Gautam v. Subhra Chakraborty the Supreme Court said that rape is a crime against basic human rights and a violation of the victim’s rights most cherished of fundamental rights, namely, the right to life enshrined in Article 21 of the Constitution. Yet it negates this very pronouncement by not recognizing marital rape. Though there have been some advances in Indian legislation in relation to domestic violence, this has mainly been confined to physical rather than sexual abuse. Women who experience and wish to challenge sexual violence from their husbands are currently denied State protection as the Indian law in Section 375 of the Indian Penal Code, 1860 has a general marital rape exemption. The foundation of this exemption can be traced back to statements made by Sir Matthew Hale, C.J., in 17th century England. Hale 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, whom she cannot retract”

This established the notion that once married, a women does not have the right to refuse sex with her husband. This allows husbands rights of sexual access over their wives in direct contravention of the principles of human rights and provides husbands with a licence to rape; their wives. Only two groups of married women are covered by the rape legislation those being under 15 years of age and those who are separated from their husbands. While the rape of a girl below 12 years of age may be punished with rigorous imprisonment for a period of 10 years or more, the rape of a girl under 15 years of age carries a lesser sentence if the rapist is married to the victim. Some progress towards criminalizing domestic violence against the wife took place in 1983 when Section 376-A was added in the Indian Penal Code, 1860, which criminalized the rape of a judicially separated wife. It was an amendment based on the recommendations of the Joint Committee on the Indian Penal Code (Amendment) Bill, 1972 and the Law Commission of India. The Committee rejected the contention that marriage is a licence to rape. Thus, a husband can now be indicted and imprisoned up to 2 years, if

  1. There is a sexual intercourse with his wife,
  2. Without her consent and
  3. She is living separately from him whether under decree or custom or any usage.

However, this is only a piecemeal legislation and much more needs to be done by Parliament as regards the issue of marital rape. When the Law Commission in its 42nd Report advocated the inclusion of sexual intercourse by a man with his minor wife as an offence it was seen as a ray of hope. The Joint Committee that reviewed the proposal dismissed the recommendation. The Committee argued that a husband could not be found guilty of raping his wife whatever be her age. When a man marries a woman, sex is also a part of the package. Many women organizations and the National Commission for Women have been demanding the deletion of the exception clause in Section 375 of the Indian Penal Code which states that sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

However, the Task Force on Women and Children set up by the Woman and Child Department of the Government of India took the view that there should be wider debate on this issue. The mandate of the Task Force was to review all existing legislation and schemes pertaining to women. Of the four recommendations made by the Task Force vis-à-vis rape under the Indian Penal Code, the most significant pertains to the definition of rape. It took the position that the definition of rape ought to be broadened to include all forms of sexual abuse. As per the recommendation, the Law Commission proposed definition of sexual assault could be adopted in place of the existing definition of rape in Section 375 IPC as it is wide, comprehensive and acceptable. However, like the Law Commission, the Task Force also stopped short of recommending the inclusion of marital rape in the new definition. As of now, the law in India is wholly inadequate in providing supporting mechanisms for women to exercise bodily integrity and sexual autonomy.

Infringement Of Fundamental Rights :

Several states have recognised marital rape as an offence breaking the chauvinistic view. In earlier times, a woman was considered to be the sexual property of the woman. However, now this view has changed and she is equal to her husband.

The exception under Art. 375 which permits a man to have sexual intercourse with his wife without her consent is the infringement of Article 14 and Article 21 of the Constitution. Article 14 protects a person from discrimination. But the exemption under Section 375 of IPC, 1860 discriminates a wife when it comes to protection from rape. Article 21 provides the fundamental right to life and live with human dignity. The current law fails to look at consent of a woman as an elementary condition for sexual element; and taking away the element of consent from married woman when cohabiting is not only immoral but also unconstitutional.Even in Bodhisattwa Gautam v. Subhra Chakrabortythe Supreme Court said that ‘rape is a crime against basic human rights and a violation of the victim’s most cherished of fundamental rights, namely, the right to life enshrined in Article 21 of the Constitution.’ Yet the current law negates this very pronouncement by not recognizing marital rape, thus, directly violating the Right to life with dignity under Article 21.

The Constitution under Art.51A (e) states that it is the fundamental duty of every citizen of India to denounce practices that are derogatory to the dignity of woman. Thus the legislative framework should make amendment under Section 375 of IPC and save married woman who face evil of forceful sexual intrusion at the hands of their husband.

Criminalization of marital rape :

  • Arguments against Criminalization
  • Due to near impossibility of proving marital rape, its criminalization would only serve as an increased burden to the already overburdened legal system.
  • Dissatisfied, angry, vengeful wives might charge their innocent husbands with the offence of marital rape.
  • There is an implied consent to have sexual intercourse when a woman marries a man.
  • Marital rape laws would destroy many marriages by preventing any possible reconciliation.
  • Arguments for Criminalization
  • A study conducted by the Joint Women Programme, an NGO found that one out of seven married women had been raped by their husband at least once. They do not report these rapes because law does not support them.
  • It may be showed that criminalization of marital rape, serves to recognize rape in marriage as a criminal offence and would have a deterrent effect on prospective rapists husbands.
  • Women foisting malicious charges, it may be noted that if proving a claim of rape in marriage is hard, proving a fabricated claim will be even more difficult.
  • Expression of love through sexual intimacy is not the same ass forced sex.
  • A marriage in which the husband rapes his wife is already destroyed. Withholding justice and denying equal protection for preserving marriages can be an improper goal of law.
  • Suggestions for Reform
  • Marital Rape should be recognized by Parliament as an offence under the Indian Penal Code.
  • The punishment for marital rape should be the same as the one prescribed for rape under Section 376 of the Indian Penal Code.
  • The fact that the parties are married should not make the sentence lighter.
  • It should not be a defense to the charge that the wife did not fight back and resisted forcefully or screamed and shouted.
  • The wife should have an option of decree of divorce if the charge of marital rape is proved against her husband.
  • Corresponding charges in the matrimonial laws should be made.

Conclusion :

The continuous exemption of marital rape from the purview of criminal law sustains the assumption of the wife as exclusive property of the husband. It is conceded that changing the law on sexual offences is a formidable and sensitive task, and more so in a country like India, where there is presence of a varied and differentiated system of personal and religious laws that might come into conflict with the new amendments in the statutory criminal law.

Can the state really enter the realm of the home? The answer to this is “yes”. It already does, in the cases of cruelty, divorce and dowry demands, then why leave the most atrocious and heinous crime outside the ambit of the State and laws. Why the area of marital rape remain beyond its pale? The immediate need is criminalization of marital rape under the Indian Penal Code. But, mere declaration of conduct as an offence is not enough. Something more is required to be done for sensitizing the judiciary and the police. There is also a need to educate the masses about this crime, as the real objective of criminalizing marital rape can only be achieved if the society acknowledges and challenges the prevailing myth that rape by one’s spouse is inconsequential.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

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