Marital rape status in India

Can A Husband Commit Rape of His Own Wife? Constitute the Offence of Rape (Marital Rape)– Explain

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Marriage is a holy union between two souls. In Hindu shastra, a wife considers as a Dharam Patni, ardhangini of her husband. In ancient times, women are respected as Devi, but in today’s era, women are getting victims of rape by their own husband. As per the latest National Health and Family Survey for (2015-16), 5.of 4% of women has undergone marital rape in their married life.[1] In India, marital rape is not considered rape because a husband can force his spouse into having intercourse without proper consent. 

What is Rape?

Rape is a kind of sexual assault usually comprising sexual intercourse or other aspects of sexual penetration carried out against a person without her consent. It encompasses the insertion of an erect penis or an extinct object into the female vagina or the male anus. 

What is Marital Rape? 

Marital rape is undesirable sexual conduct by a spouse without the consent of the wife or against the will of a wife by pressure, force, coercion. 

Marital rape is not criminalized in India but the non-criminalization of marital rape however negotiates the dignity and human rights of women.

The discrepancy between marital rape and rape is consent. Consent is considered to be inferred. Thus, marital rape appears under the exception of rape. This exception exonerates the husband from all the penalties for the conduct of rape.

In India, rape is a criminal offence under the ambit of Indian Law, by the integrity of the Indian Penal Code, 1860. Section 375 – 377 of the Indian Penal Code, 1860 deal with sexual offences. 

Section 375 specially deals with rape. As per the Section if a man enters his penis to any extent into the vagina, mouth, anus or urethra of a woman or forces her to do this with him or another person. Utilizes any body part of a woman to cause penetration into the vagina, anus, urethra and force her to do so with him or another person. If a man pertains his mouth to the vagina, anus, urethra of a woman and forces her to do this with him or another person.

As per Indian law if any of the below-mentioned acts are falling under the conditions the condition will be rape. The acts are-

It occurs without the consent of the women, or

She concedes only because she or someone she knows is in threat, or

She concedes because she believes the accused person is her husband, or

She concedes but she is drugged, or drunk, or mentally unwell, or 

She is under 18 years old and it does not matter if she conceded or not, or

She is in the situation to imply whether she conceded or not.[2]

Why marital rape is not a crime?

Marital rape is deemed to be one of the most common and derogative aspect of humiliation, but it is kept under the shelter of marital prominence. 

According to exception 2 of Section 375 of the Indian Penal Code, 1860 sexual intercourse by a man with his spouse is not rape.  If the wife is below 15 years old then the sexual intercourse by her husband is considered rape. If a married couple living separately then the marital rape exception stated under section 375 of the Indian Penal Code, 1860 is no extended applies and the husband can be sentenced to rape if there is no consent of the wife. The penalty for the husband is imprisonment for a term of seven years or a fine or both.[3] 

In a patriarchal society, men believe that women are the property of her husband and the integrity of women is estimated largely by their sexual purity. Hence, rape can be theorized as a property crime against a woman’s spouse.

Indian Constitution and Marital Rape:-

The fundamental rights are cherished under the Constitution of India and it protects all people without any discrimination.

Article 14: Article 14 of fundamental rights upheld equal rights among all the citizens. Marital rape infringes the right to equality. The Exception under this Act builds two classes of women based on their marital status and immunizes actions executed by men against their spouses.

Article 21: Article 21 of fundamental rights ensures the right to life with maximum dignity and freedom. The legitimacy of marital rape is a terrible crime itself. If a woman cannot appreciate the independence of her own body and sanity and the right to compel sexual opinions then there is zero assurance of her dignity. Thus, this exceptional clause is a heinous infringement of the right to life.

Case law on Marital Rape:-

Over the years, the Indian judiciary stated their verdicts on the cases of marital rape. One is given below –

In the case of Independent Thought V. Union of India [(2017) 10 SCC 80], the Supreme Court of India stated that Exception 2 to Section 375 Indian Penal Code o in so far as it pertains to a girl child below 18 years is prone to be struck down on the following grounds:–

(i) It is incidental, unstable, impulsive and violates the rights of the girl and not fair, adequate and, thus, it is violates Article 14, 15 and 21 of Indian Constitution;

(ii) It is unfair and violates Article 14 of the Constitution of India and;

(iii) It is inconsistent with the provisions of the POCSO Act which must persist.[4]

Conclusion:-

Marital rape is not deemed as rape as it does not happen by own husband and it is connected with marital dignity. But it should not be forgotten that rape is rape. No circumstance, whatsoever, can withhold the perpetrator of its enormous conduct. The age, gender, sex and marital status of the victim does not matter in any case. 

By Shreeparna Goswami

3rd year of Shyambazar Law College.


[1] Govt says no marital rape, survey shows 5.4% of married women are victims, https://www.business-standard.com/article/economy-policy/govt-says-no-marital-rape-survey-shows-5-4-of-married-women-are-victims-118011200178_1.html.

[2] Legal provisions related to Rape — Vikaspedia, https://vikaspedia.in/social-welfare/social-awareness/legal-awareness/legal-provisions-related-to-rape.

[3] Marital Rape: A Non-criminalized Crime in India, https://harvardhrj.com/2019/01/marital-rape-a-non-criminalized-crime-in-india/.

[4] SC Case Analysis on Marital Rape: Independent Thought v. Union of India and Another By: Akanksha Yadav,  https://www.latestlaws.com/case-analysis/sc-case-analysis-on-marital-rape-independent-thought-v-union-of-india-and-another-by-akanksha-yadav/.

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