Martial Rape- A Non-Criminalized Crime in India

Martial Rape- A Non-Criminalized Crime in India

Rape per se is an offence against woman, violating her dignity and self-respect and it reduces the woman status of an object used merely for sexual quenching. There is an immediate requirement for a perceptible law on marital or spousal rape in India, which should be at par with the accepted international norms on this issue. Rape within marriage is a concept that frets the wife to the very core. The apprehension of having to face it and still have to silently suffer through it is an unbearable thought that affects the psyche of the women. However, this silence is not exactly self-enforced. The lack of laws and profuse social stigmas against the act of marital rape is one of the primary reasons that the evil of marital rape is still hidden behind the inviolate of marriage.

The woman has been given the right to fight for protection when the violators are outside entities, but when the malefactor of her bodily integrity is her own husband, who she married with all the ostentation and show, such protection is withdrawn by the legislators. According to the National Crime Records Bureau’s (NCRB) around 70% of women in India are victims of domestic violence. One such identification of this domestic violence is Marital rape.

Marital rape is an act of forcing your spouse into having sex without proper consent, and it’s unjust which used to degrade and dishearten women totally. Today, Marital rape has been impeached in more than 100 countries but, India is one of the 36 countries where marital rape is not criminalized. Even various legal amendments that have been done in criminal law for the protection of the women for non-criminalization of marital rape in India spoil the dignity and human rights of women.

Meaning of Marital Rape

The word ‘rape’ has been derived from the Latin term ‘rapio’, which means ‘to seize anyone private part. Rape is, therefore, forcible seizure, or the assault of a woman without her consent, by force, fear or fraud. It involves coercive, non-consensual sexual intercourse with a woman. Rape can be viewed as an act of violence of the private part of a woman, indignation by all means.  Rape is not merely a physical assault but is destructive of the whole façade of the victim.

The law did not explicate it as an offence against the person of the woman, one that destroys her freedom; rather, it devises rape as an instrument for protecting a man’s property from the sexual hostility of other men. Therefore, the act of rape within marriage is not recognized as an offence, as the woman is considered the property of the husband, and a man could not be grasped to violate his own property. Marital rape is particularly complicated because of the complex, personal nature of marital relationships which makes it hard for the victim to even see herself as a victim because of the ill-disposed to approach the authorities because they are financially dependent upon their husbands, and reporting the matter which could result in withdrawal or reduction in the financial support by leaving them and their children without food and shelter.

Marital rape reflects the stubbornness of an individual. It is not only the rape of a woman’s body but the rape of the love and trust the women do, and women human rights are also sacrificed at the altar of marriage. The Indian Penal Code has dealt with this form of rape in a very gradual manner. Various provisions of the IPC relating to sexuality stiffen not only straitlaced morality but also the non-agency of women. Thus, it is visible that the law which is considered as the rescuer of the victim is inadequate and insufficient to protect the interests of those afflicted with the ill of marital rape. But, implied consent to engage or involve in sexual activity does not mean consent to being wreak with sexual violence. It is often felt that as in pervert sexual acts, in marital rape women are presumed to have consented to the violence.

Marital Rape and Laws in India

Though we have developed in every field marital rape is not considered as an offence in India, despite various amendments, law commissions and new legislation, one of the most embarrassing and exhausting acts is not an offence in India. A look at the options a woman has to protect herself in a marriage, but the legislation is either non-existent or uncertain and everything has just depended on the elucidation of Courts.

Section 375, the provision of rape in the Indian Penal Code  has reverberation very outmoded sentiments, mentioned as its exception clause- “Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.”  According to Section 376, the rapist should be “punished with imprisonment for a minimum period of 7 years which may extend to 10 years of life and also be liable to fine unless the woman raped is his own wife, which is not under the age of 12 years, in which case, he shall be punished with imprisonment for a term which can be extended to 2 years with fine or with both”.1

In the climactic case of Vishakha v. State of Rajasthan2, the Apex Court extended this right of privacy in working environments also, but along a similar line, we can translate that there exists a right of privacy into a sexual relationship even inside a marriage. Subsequently, by making legal rape inside a marriage, the marital exception teaching damages to the right of privacy of a married lady and is consequently is illegal.

Constitution of India viz-a-viz marital exemption to rape

Article 14

Article 14 of the Indian constitution of India states that:

“The state shall not deny to any person equality before the law or equal protection of law within the territory of India”.

While the Constitution ensures equality for all citizens but Indian criminal law oppresses female victims who have been assaulted by their own husbands. Married women, exactly like men and unmarried women need the protection of the law in their own private domain. While the rest of section 375 of the IPC deals with protecting the right of a victim from the crime of rape and such right is inward-looking on marriage and the focus of the law instead relocate to protecting, the offender of the crime of rape. It takes away a woman’s right of choice and indeed effectively deprives her of bodily autonomy and her personal identity.

 In the case of Bhushan Chaudhary vs State of Bihar3 and State of West Bengal vs Anwar Ali Sarkar4, the apex court has stated the 2 essentials of a valid classification are;

  • The classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others; and
  • The differentia must have a rational relation to the object sought to be achieved by the legislation.

Article 21

According to article 21 of the constitution of India:

“No person shall be deprived of his life or personal liberty except according to the procedure established by the law”. 

It was held that the rights reserved in article 21 incorporate the rights of wellbeing, security, respect, safe living conditions and many more. In light of this dilate jurisprudence of Article 21, the doctrine of marital exemption to rape violates the rights which have been emerged from the expression “right to life and personal liberty” under Article 21 of the Indian constitution. The marital exemption to rape violates the right to privacy, right to bodily self-determination and also to the right to good health, all of which have been recognized as a fundamental part of the right to life and personal liberty at various points of time. In the case of Reginal Director ESI corp. vs Fransic De Casta5 the Apex Court mentioned that it is much settled that the “right to life” envisage in Article 21 isn’t only a privilege to exist. For illustration, there can be no contest that each resident of India has the option to get involved in social insurance or that the state is required to accommodate the soundness of its constituents. In another case of State of Maharashtra v. Madhkar Narayan6 the Supreme Court has held that every woman is entitled to her sexual privacy and it is not open to any and every person to violate her privacy as and whenever he wished.


Marital rape has not been completely criminalized in India but there is certainly genuine types of malpractices that carried or taken place against women and deserving of government’s consideration. Women who are raped by their husbands are mostly prepared for various attacks and frequently go through long tow, physical and enthusiastic issues. In this specific circumstance, marital rape is significantly more dreadful for a woman. As the results of marital rape have been increased in India and there is obviously a dire requirement for the criminalization of the offence of marital rape. Positive licit change in women are taken place by large in India, yet additionally, steps are fundamental so that both lawful and social change happens, which would finish in criminalizing marital rape and changing the attitude about the woman in marriage. There are many loopholes in the Protection of Women from Domestic Violence Act, but there are not as such any Act which directly talk against marital rape.



  1. Indian kanoon
  2. AIR 1997 SC 3011
  3. AIR 1955 SC 191
  4. AIR 1952 SC 75
  5. 1992 SCR (3)23
  6. AIR 1991 SC 207

Books Referred

  • Mishra S.N “ Introduction to Indian Penal Code” 19th Edition
  • D Basu “The Constitution of India” 20th Edition

Bare Acts Referred

  • Indian Penal Code,1860
  • The constitution of India

Website Referred

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