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  • Prachi jain

Marital rape

Updated: Nov 19, 2023

legality of marital rape

Any unwelcome sexual actions carried out by a spouse or former spouse that are done without the victim's consent or against their will, and that are done under, intimidation, or when the victim is incapable of giving consent. The victim may experience intercourse, anal or oral sex, forced sexual activity with other people, or other sexual actions that they find to be embarrassing, painful, or unwelcome. Rape is a crime that depends on the woman's lack of permission. It's crucial to understand that lack of permission need not always take the form of the word "no." The situation's context should be used to make the assumption. If a woman consents to sexual activity throughout a marriage.

The law does not appropriately address the crime of marital rape. If the lady is older than fifteen, the law does not prosecute rape committed during a marriage. Only when a woman is legally separated from her husband and engaging in forced sexual activity is it a crime. Also keep in mind that since marital rape typically takes place inside the home, there are frequently no witnesses to the crime. Marital rape has not yet been recognised as a concept. We have been advocating for legislation to make it a crime, but in order to do so, we must first gather data on rape incidents that occur within marriages.

Research shows that marital rape frequently has serious and long-lasting implications for women, contrary to the historical assumption that it is a relatively unimportant occurrence that causes minimal stress. Marital rape can cause damage to the private parts of the body, discomfort, bruising, torn muscles, exhaustion, and vomiting. Other physical effects that can occur during sexual violence against women by their husbands include fractured bones, black eyes, bloody noses, and knife cuts. Miscarriages, stillbirths, bladder infections, infertility, and the possibility for contracting sexually transmitted diseases like HIV are just a few of the specific gynaecological effects of marital rape.

Currently, acts of sexual assault committed during a marriage are specifically excluded from the definition of rape under exception 2 to Section 375 of the Indian Penal Code (IPC). However, exception 2 to Section 375 of the IPC also made it clear that sexual intercourse between a man and his own wife, while she is under the age of 15, is rape, whether it was carried out with or without her agreement. It is asserted that this restriction was necessary to prevent men from abusing their martial privileges before they were ready. When a woman is older than 15, a man cannot be charged with raping his own wife. Section 375 of the IPC's Exception 2 is clearly violative of Article 14 of the Indian Constitution (equality before law). Exception 2 to Section 375 of IPC tends to discriminate against married women

In Independent Thought V. Union of India, The Hon’ble Supreme Court of India on 11th October 2017, In view of the above discussion, I am clearly of the opinion that Exception 2 to Section 375 IPC in so far as it relates to a girl child below 18 years is liable to be struck down on the following grounds:–

(i) It is arbitrary, violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Article 14, 15 and 21 of the Constitution of India;

(ii) It is discriminatory and violative of Article 14 of the Constitution of India and;

(iii) It is inconsistent with the provisions of POCSO, which must prevail.

Therefore, Exception 2 to Section 375 IPC is read down as follows: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape"

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. Although there have been significant improvements in Indian domestic violence legislation, these have been focused on 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 woman 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. Yet the punishment for marital rape is still not complete because in order to male it complete the age groups of spouses should be expanded and it should include all age groups, only then the real meaning of punishment for marital rape will be defined and the crime rates connecting to rape altogether will decline.

It is acknowledged that changing the law regarding sexual offences is a difficult and delicate task, and this is especially true in a nation like India where there is simultaneously an extensive and diverse system of personal and religious laws that may conflict with the new amendments to the statutory criminal law. A fundamental reorganisation of the structure of sexual offences is not advised, despite the necessity for significant modifications to the law on sexual offences, such as making them gender-neutral and eliminating the inequities. The Indian Penal Code has to be amended to make marital rape a crime. However, merely declaring a behaviour to be unlawful is insufficient. There must be additional action taken to sensitise the judiciary and the police.

1. Parliament should declare marital rape to be a crime under the Indian Penal Code.

2. The penalty for marital rape ought to be the same as that set down in Section 376 of the Indian Penal Code for rape.

3. The penalty shouldn't be reduced because the parties are married.

4. The wife's failure to resist violently, scream, or shout should not be used as justification for the accusation.

5. If the wife's husband is found guilty of the alleged marital rape, she should have the option of obtaining a divorce judgement. Even though rape or cruelty as grounds for divorce may apply in cases of marital rape, it is important to have the legal position clarified.

The general public must also be educated about this crime if the true goal of criminalising marital rape is to be accomplished. To do this, society must confront the widespread misconception that rape by a spouse is not a serious crime.


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