The idea of the “sacrosanct” institution of marriage dished out by the mainstream Indian cinema is a myth and is contrary to women’s perceptions of reality. 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’s sexual agency and bodily integrity, which lie at the heart of women’s 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.
Marital Rape (also known as spousal rape in marriage) is non-consensual sex in which the perpetrator is the victim’s spouse. It is a form of partner rape, domestic violence, and sexual abuse. To put it in simple words, forcefully having sex with your partner without their consent which is considered as Rape even if you are married. In India rape by an outsider is a penal offense under section 375 and 376 of IPC.
The question that is often raised is “if marriage in India is a contract for legal sex, among other things – where a man doesn’t need to ask for permission and is free to impose himself on the wife?” While most of the developed world has penalized marital rape, surprisingly, there is no law to protect married women against marital rape in India – It was said that marital rape can’t be made a criminal offence in India because of high illiteracy rate, poverty, extreme religious beliefs and the very ‘sanctity’ of marriage. The best way that the law protects women subjected to marital rape is by charging the husband with a minor offence of cruelty, the punishment of which goes up to three years in jail or a fine. In worse cases, she can seek restraining order and protection under domestic violence legislation.
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.
Position in India
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” 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. 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.18 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 firstly, there is a sexual intercourse with his wife, secondly, without her consent and thirdly, she is living separately from him, whether under decree or custom or any usage. 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.
Violation of Article 14 and 21 of the Indian Constitution
Article 14 of the Indian Constitution ensures that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Although the Constitution guarantees equality to all, Indian criminal law discriminates against female victims who have been raped by their own husbands. At the time the IPC was drafted in the 1860s, a married woman was not considered an independent legal entity. Rather, she was considered to be the chattel of her husband. As a result, she did not possess many of the rights now guaranteed to her as an independent legal entity, including the right to file a complaint against another under her own identity , which essentially exempts actions perpetrated by husbands against their wives from being considered acts of “rape,” is largely influenced by and derived from this already existing doctrine of merging the woman’s identity with that of her husband.
Criticisms against the need for criminalization of marital rape
- There is no need to give legislative attention to marital rape, as it is quite uncommon.
- Due to the 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.
As per the Constitution of India, every law which is passed must be in conformation with the principles and ideas which are enshrined in the constitution. Any law which has been made failed to meet its required standards are considered to be ultra vires and it can be struck down or to be declared unconstitutional. Here, the exemption of Section 375withdraws the protection of married women on basis of her marital status. Countries like the UK, United States and others have criminalized marital rape. This is a testament to the fact that India is holding onto an archaic and regressive law. It is illogical, ethically and morally wrong. Rape is a reprehensible crime whether a woman is married or not. It is a crime against humanity.
 ( (1996) 1 SCC 490)
 (Exception to Section 375 of the Indian Penal Code, 1860.)
 (Section 376-A of the Indian Penal Code, 1860)