Marital Rape: Meaning and Laws

Marital rape is effectively excluded from India's list of crimes by the exception 2 of the section, which states that "sexual relations or sexual intercourse by a male partner with his wife may not be regarded rape if his wife is not a minor, i.e., under the age of eighteen."

Marital Rape and Laws

In addition, until five years ago, rape laws as they exist now did not even provide protection for females between the ages of fifteen and eighteen. In the case of Independent Thought v. Union of India, the Supreme Court determined that the provision should read "the wife not being under eighteen years of age," raising the original age limit from fifteen to eighteen (2017).

While other nations acknowledge that rape is rape and should be punished regardless of the relationship between the perpetrator and the victim, India is one of the thirty-two nations in the world where wives cannot file a criminal complaint against their male partners for engaging in extramarital sex. What prevents India, a rising "superpower," from punishing this notorious outlier, then? It won't take much of a critique to reduce the causes to their most fundamental components: sexism and misunderstandings. These two elements are the basis of what is arguably the biggest barrier to India criminalizing marital rape: a rigidly patriarchal society that cuts off women's agency over their bodies and gives way to a unified culture where, in the archaic sense of the word, marriage and family still hold paramount importance as the pillars of society.

Of all, it is primarily the responsibility of women to uphold this culture, as they are supposed to make "sacrifices" in order to protect the "sanctity of marriage." In a nation like India, one of the largest democracies on the world, where governmental acts become the function of opinion rather than of force and the public's desire is implemented into law by the public representatives themselves, public opinion plays a crucial part in forming these constructions.

When is Marital Rape Consider as a Penal Offence or Charged as Rape?

Marital rape is not an offence under normal circumstances; however, there are certain prohibited actions, and if any husband performs them against the will of his wife, it is considered a penal offense; for example,

  • If a husband forces his wife to have sodomy (or unnatural sex); he will be charged under Section 377 of the Indian Penal Code.

  • If a husband, in order to derive pleasure, beats or injures his wife during a sexual relationship, he will be charged with cruelty.

  • If a couple is judicially separated (under Section 10 of the Hindu Marriage Act, 1955) and the husband engages in a coercive sexual relationship with the wife, the husband will be charged with rape.

A Critical Analysis of Marital Rape

Therefore, the effort in India to make marital rape a crime goes beyond merely altering the legislation on paper. Attacking the deeply established attitude that still sees the wife as her husband's property rather than as a unique person with agency is the goal. It involves challenging the idea that marriage is sacred.

The majority of ancient societies classified rape as a theft offense committed against the parent or the husband rather than the lady. So, by definition, a husband could not rape his wife because, throughout a marriage, a man was free to do as he pleased with his wife. Rape of a woman was once viewed as a property crime committed against a husband or parent rather than a violation of the woman's right to self-determination. Her virginity or sexual purity was the trait that was to be concealed from a girl. Because a man effectively "owned" his wife, it was impossible for him to be charged with raping her.

This is because a woman's "purity" could not be compromised by the husband. Marriage was defined as a legal compact in which a woman "delivered herself" to her husband for life by the British Jurist Sir Matthew Hale. The focus on women's chastity rose in the 18th and 19th centuries with the rise of middle-class thinking and Victorian morality, and rape started to be considered as a peril that women faced outside of the home that the male characters in their families had to protect them from.

The Indian Penal Code, which was created in 1860 under the English Common Law system, was influenced by these laws and ideals. Several provisions, particularly Section 375, which categorically excluded marital rape from the scope of punitive sexual offenses, were shaped by the majority of the public's views on marital morality. Cut to a century and a half later, feminist movements have emphasized the value of consent and given women the freedom to denounce sexual abuse regardless of who committed it, even in India. As a result of these activist campaigns, India's anti-rape legislation underwent progressive revisions in 1983 (The Criminal Law (Second Amendment), 2002 (Amendment to Indian Evidence Act), 2012 (Protection of Children from Sexual Offences Act), and once more in 2013. Nevertheless, India still defends a man's freedom to rape his wife. Why?

The UPA administration established a committee a week after the Nirbhaya gang and murder case in 2012 to provide recommendations regarding "potential revisions to the Criminal Law to enable for speedier trial and higher punishment for individuals conducting sexual assaults of severe kind against women." The Commission suggested significant revisions in its 644-page report, which it completed in 29 days after receiving 80,000 ideas. A few of its proposals, including the one on marital rape, were taken into consideration when The Criminal Law (Amendment) Act was approved in 2013. A Parliamentary Standing Committee argued that enacting the judiciary committee's suggestion to prosecute marital rape would significantly strain the whole family structure.


The victim of marital rape has significant and enduring repercussions because they are forced to remain in an unhappy marriage with no respect, no love, and no dignity. Some social groups believe that marriage is a holy institution, and that enacting such a legislation will cause couples to fail. But

  • What happens when a husband exerts pressure on his wife?

  • Does that sacredness even survive?

  • When the wife's physiological integrity is compromised, does this sanctity not disappear?

In direct conflict with the constitutional guarantee that every Indian citizen has the right to equal protection under the law, Exception 2 of Section 375 divides women into two categories based on their marital status, giving priority to one single woman in protecting them from rape and turning a blind eye to the married ones. The marital law exemption discriminates against women who have been raped by their husbands by denying them equal protection against rape and sexual harassment, despite the fact that Article 14 of the Indian Constitution guarantees equality. Article 21 of the Constitution, which provides that "no individual shall be deprived of his life or personal liberty unless in accordance with the method provided by law," is also violated by Exception 2.

The Supreme Court has frequently interpreted Article 21 to go beyond the literal guarantee of life and liberty and include the rights to privacy, health, safe living conditions, dignity, and a safe environment, among other things, as evolving contexts present new challenges to citizens' fundamental liberties over the years.

Frequently Asked Questions

Q1. Is raping a spouse still rape?

Ans. Depends. Marital or domestic rape is still rape. Rape is defined as coercing or persuading another person into engaging in unwelcome sexual activity. Even if it is committed by a person you are dating or married to, it is still sexual assault. Intimate partner violence is defined as rape in love relationships and marriage. This includes coerced sex and intimate partner violence. Not all sexual assaults are openly violent. A proves that this assault violates someone's integrity in more ways than just the use of force.

Q2. Why is marital rape not a crime in India?

Ans. It is believed that the consent of having sexual relationship with spouse is by default given when they mutually agree and perform marriage ceremony legally. Secondly, marriage is simply not a contract in Hinduism but rather a sacrament where two people (husband and wife) surrender to each other and commit to being responsible for the rest of their lives. Thirdly, a sexual relationship is one of the essential elements of a legal or valid marriage.

Updated on: 13-Mar-2023


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