Marital Rape Laws In India

Introduction

It's unbelievable that one in every three women in India aged between 15-49 have been sexually assaulted by their husbands. We live in the 21st century and the times when progress is at its peak, yet there's a long list of offences committed against women. Rape is one of the most heinous crimes and marital rape continues to stay decriminalised under Indian Penal Code. However, we are witnessing a time when men and women are both believed to have separate legal entities even after a marriage union. It's high time, we as legislature along with Indian citizens acknowledge the right to personal and sexual autonomy, bodily and human integrity, right to resist any forced sexual assault even if it is from her husband. Karnataka High Court rejected a petition filed by a husband seeking to drop charges of rape under Section 376 of levied against him by his wife.

Whether it be inside the house or outside, women are not safe anywhere. The least we can do is enact laws that give them the right to say “no” or report forced sexual assault. The crucial question is “Whenvand how can India achieve this?”. Let's understand various issues, recent developments, and analysis on the issue of marital rape through this comprehensive article.

What is Marital Rape?

Before we dive into what constitutes as marital rape, let's understand rape. The word rape refers to non-consensual sexual activity carried out forcibly or under threat. Sometimes the person may be minor or incapable of consent due to intoxication, mental illness, insanity, unconsciousness, etc. The institution of marriage legalises the sexual intercourse between lawfully wedded husband and wife because marriage is a formally as well as legally accepted union between a man and a woman.

Several members of Rajya Sabha in their 176th report felt that marital rape has the potential of destroying the institution of marriage. It's a common belief that rape occurs when a stranger forces or threatens into unlawful sexual activity but plenty of women silently suffer rape by their husbands because they are under a marriage. According to a UN report, 78 percent of all rape victims knew their attacker.

Since time immemorial, it has been believed that consent to marriage is implied consent to every sexual intercourse between a husband and his wife. Kerala High Court recently stated that treating a wife’s body as something owning to her husband and committing sexual act against her will is nothing but marital rape. Every woman has the right to respect for her physical, mental and bodily integrity and disrespect shall be mere violation of autonomy.

Marriage is an institution to socially and legally approve the sacrament or contract between husband and wife with the aim of the procreation of children but this definition or any definition under no circumstance interprets that the husband has the power to forcefully rape his wife for attaining pleasure in the name of marriage. The National Family Health Survey (NFHS) found out that among the 80,000 women they interviewed about 93 percent said that they had been sexually assaulted by their current or former husbands. The statistics about marital rape are unbelievable and gutwrenching because they are the victims of a crime that is not even recognized in the eyes of law.

Genesis for decriminalisation of marital rape

Undoubtedly the roots of marital rape are gender inequality. Back in the tines, women were considered as a chattel of men. William Blackstone, a legal scholar stated that “Husband and Wife are one person in the eyes of the law after marriage.” This explanation was heavily criticised because it nullified the existence of women after marriage.

Indian Penal Code was drafted by Thomas Maculay and followed principles that were acceptable in the legal framework of England. They at that time followed the doctrine of coverture which means “upon marriage, the legal rights and obligations of the wife are acquired by the husband.” This doctrine still prevails in India through the husband exemption under Section 375 which screams inequality and the subordinate authority of wife to husband. Contrarily the Indian Constitution condemns such conviction and intends for equality before law guaranteed under Article 14 which guarantees the right to live with dignity under Article 21.

Justice M R Shah and B V Nagarathna in a recent case held that “A woman is not a chattel and has a identity of her”

Types of Marital Rape

Rape under the purview of marriage does not make it less of an offense, rather it is type of rape which is further classified by the court in Nimeshbhai Bharatbhai Desai v. State of Gujarat:

Force- only rape

When a husband uses force or threatens to coerce their wives into sexual intercourse and no other act of violence is committed along with it, then it is Force-only rape.

Battering rape

When a woman faces various acts of violence like mental and physical torture along with forced sexual activities then it is called Battering rape.

Obsessive rape

Deliberate desire and attempt to unreasonable or unacceptable sexual activity is called Obsessive rape.

However, these classifications are through Judges, Legal scholars and Researchers. Marital Rape is neither defined or classified, penalised under Indian Criminal Law.

Legislations on Marital Rape in India

Indian Penal Code on Marital Rape

Indian Penal Code, 1860 (IPC) and various other legislations were drafted by british officers with the purview of common law. Thomas Macaulay while drafting IPC was to make it a substantial criminal law of India and it proved to be one. However, it has survived for more than 160 years which makes it evident for amendment with the changing times.

Section 375

IPC under Section 375 defines what constitutes as rape and criminalises forces sexual activity against the will or without her consent. Indian Criminal Law covers all the aspects and left no stone unturned to penalize the heinous crime of rape.

However it is followed by the two exceptions:

Medical procedure;
Sexual activity by a man with his wife above age 15.

The foundation of husband exemption as to rape is coded under the second exception. The Law Commission of India in their 172nd report in March 2000 states that it would not suggest the deletion of the second exception of section 375 of IPC as it may lead to excessive interference of the state with their marital relationship.

Section 376

The offence of rape is penalised under 376 of IPC which states punishment for rape shall be not less than 10 years which may extend up to life imprisonment.

Indian Penal Code came into existence in the year 1860 and at that time the second exception was only valid for women above age 10. This was not changed until 1940 and then it was made to age 15. The Supreme Court of India in 2017 through a judgement made the exception valid for women above age 18.

Decriminalization of marital rape is quite evident in the second exception of section 375 of IPC. It underlines that marital rape is not de jure but instead de facto under Indian Criminal law. During a parliamentary session in 2015, the proposal of criminalizing marital rape was dismissed due to the difficulty it might cause in implementing the same. It fails to recognize that forced sexual activity committed by a husband on his wife is still an offence. Entering into the institution of marriage does not give everlasting consent to sexual intercourse with the husband and neither does it grant a man the blanket licence or immunity to assault his wife.

Domestic Violence Act, 2005

The Domestic Violence Act, 2005 acknowledges the existence of marital rape and the issues revolving around and it recognizes sexual assault abuse within the marriage as well as live-in relationship. However, the act has a limited scope and only offers civil remedies like judicial separation and monetary compensation. These remedies put a constraint on the victims to initiate any criminal proceedings against the abuser which is still an underlying issue for married women of India.

Medical Termination of Pregnancy (MTP) Act.

The Supreme Court of India in a landmark judgement took cognizance of marital rape and stated that wives who conceived out of forced sex by their husbands shall be counted as sexual assault survivors under the MTP Act and Rules.

Recent Development on the issue of Marital Rape

In the part decade, there have been several petitions that raised the exception on marital rape as barbaric. Here's the list of all noteworthy petitions in chronological format:

2015: First Petition to criminalize marital rape filed in Delhi High Court;

August, 2021: Central Government States “Criminalizing marital rape may destroy the institution of marriage”;

July 2023: Supreme Court decides to hear several pleas about the issue of marital rape.

“A man is a man; an act is an act; rape is a rape, be it performed by a man (husband) on the woman (wife)”

Justice M Nagaprasanna

Judicial Precedents

Judicial Precedents commonly known as case laws in layman's language are popular and crucial sources of law. It plays a significant role in shaping and interpreting. Each case highlights a different issue of on the subject matter of marital rape which is also the reason why there are case laws that favor the current state of decriminalization whereas some shed light on the need for concrete legal protection of women against marital rape.

In favor of decriminalising
- Gujarat High Court in Devipoojak Mukeshkumar in 2021 shed light on the role of Section 198 (6) of CrPC and further held that this provision shall apply to cases of rape of wives only below the age of 18.
- The Supreme Court in March 2023 acquitted a man for the offense of rape for sexual intercourse with a minor wife.
In favor of criminalising
- Independent Thought vs Union of India (2017) - In the case, the court answered whether sexual activity between a man and his wife between age of 15 to 18, constitutes as rape? While concluding, it took into consideration, Section 2 (1) (d) of the Protection of Human Rights Act of 1993, POCSO Act, and further held that sexual activity with a wife aged between 15-18 shall be rape. Through this landmark judgement, exception 2 of section 375 was reformed and the age bar was increased to 18 which is also the legally accepted age for marriage of girls.
- RIT Foundation vs Union of India (2019) - In this case, the judges considered the changes other countries like the USA, UK and Australia brought to eradicate the evil of marital rape and further Justice Arijit Pasayat observed that “while a murderer destroys the physical fame of the victim, a rapist degrades and defiles the soul of a helpless female.” The Delhi High Court in this case also suggested the government consider marital marital rape as an offense and amend the existing laws.
- Bodhisattwa Gautam vs Subhra Chakraborty (1995) - In this case, the court held that rape is, to a lesser a sexual offense than a demonstration of hostility for corrupting and mortifying women. Therefore, the marital take exception principle violates the spouse's entitlement to live with human dignity.
- Kavita vs State of Haryana (2020) - The Punjab and Haryana High Court in this case observed the issue of marital rape and the need to provide legal protection for women in abusive marital relationships. Further the judges stated that the exception in the Indian Penal Code (IPC) which exempts a husband from the charge of rape was discriminatory and needed revaluation.
- Megha vs Union of India - The above case was filed by a woman who faced sexual violence and abuse by her husband and this case, it was further highlighted the need for a comprehensive law to address marital rape and the lack of the protection for women in abusive marital relationships.
- Justice K. S. Puttaswamy vs Union of India - In this case, it was held that the right to make sexual decisions has been anticipated in the right to privacy.
- State of Maharashtra vs Madhkar Narayanan - In this case, the Supreme Court has held that every woman is entitled to her sexual privacy and is not open to any person violating her privacy as and whenever he wishes.
- Shreya vs State of Madhya Pradesh - The case revolved around sexual violence and abuse within marriage which further raised the question of legal protection of women jn such situations. The Madhya Pradesh High Court in this case observed the need for extensive legislation to address marital rape and stated that the current status are insufficient.

Is Marital Rape Constitutional?

The Constitution preserves the “fundamental right to equality” as non-negotiable and secures the citizens from any type of discrimination. Even though the constitution aims to provide equal protection and opportunities to both sexes; the age-old practice of keeping women subordinate to men has encouraged the constitution and legislature to make provisions for women.

Over the years, there have been several amendments to safeguard women against the heinous crime of rape which violates the basic human dignity of women. However, marital rape is one such common, unreported crime that is yet to put light on.

Article 14 & 15 of the Indian Constitution prohibits discrimination on equality to any citizen. It propagates the principle of “equality before the law” and further commands equal protection of laws within the territory of India. This article aims to prevent citizens from all kinds of discrimination based on gender, religion or caste. It promotes equality as well as encourages the state to bring provisions in favor of people who suffer from injustice.

The “husband exemption” under Section 375 of IPC raises concerns related to discrimination based on gender, unequal protection of law, and denial of equal access to justice. The absence of provisions related to marital rape is a huge violation of Articles 14 & 15 as it leads to unequal treatment and protection based on gender which is contrary to the goal of the Constitution.

Article 19 (1) (a) gives every citizen the freedom of speech and expression which is directly violating the exception 2 of Section 375, IPC. Marital rape may silence the victims due to the fear of violence which hinder to the victims freedom of expression.

Article 21 was termed as the heart of fundamental rights in Bandhua Mukti Morcha vs Union of India but what makes it so special? Well, Article 21 upholds the right to life and personal liberty as fundamental rights for everyone. In the case of D.K Basu vs State of Bengal, it was held that Article 21 of Indian Constitution protects people from all forms of cruel, humiliating, torture and inhumane treatment.

In several cases, the Supreme Court has underlined that sexual harassment against women is violative towards various parts of Indian Constitution. One such example can be noted in Suchita Srivastava vs Chandigarh Administration where it was held that Article 21 not only protects the rights of a woman to life, and dignity but also protects bodily privacy which makes her entitled to physical and emotional wellbeing.

The foundation of Article 21 is to reiterate that each person has the right to love a life with dignity and liberty. In Bodhisattwa Gautam vs Subhra Chakraborty, it was held that “as per Article 21, women are entitled to the same rights and liberty as men do.” The above-mentioned case laws make Article 21’s role in uplifting the rights of women coherent and the lack of clarity on marital rape and the second exception of Section 375 are conflicting with the vision of Article 21.

Article 15 (3) also encourages the state to address the injustice and implement special actionable provisions for the upliftment of certain groups that have been oppressed and make special provisions for women respectively. This clause invokes the need to dissolve the decriminalisation of marital rape and enact fresh laws for the upliftment of women.

In State of Kerala vs N.M. Thomas (1976); a 7-Judge Bench with a majority in the Honourable Supreme Court, introduced an adaptation of change in the concept of equality. It further held that all equality rights are mentioned under Articles 14, 15 and 16 and the scheme of equality sought to achieve real equality.

Consent is necessary even after marriage and despite saying no if a man forces a sexual activity, it should be punishable. Simply any justification by law is an infringement of personal dignity and other fundamental rights. The above analysis of fundamental rights enshrined under various articles of the Indian Constitution proves that marital rape exemption is an absolute violation, unconstitutional and can be declared unconstitutional.

Justice Verma Committe on Marital Rape

Back in 2012, a student was raped in the most horrific manner after which Justice Verma set up a committee to review and suggest amendments to eradicate sexual assault of extreme nature against women under criminal law. The three-member committee looked into the possible provisions that could be added, however they didn't delve into analysis or critical opinion.

It discussed many factors like the shame attached to sexual violence that the victims fear in reporting the crime and the concept of consent with reference made to State of H.P vs Mango Ram to dive deep into the understanding. Apart from trafficking, child sexual abuse and acid attack, they touched the topic of marital rape and effect of it on the society. The committee recognized the distinction of the deletion of the husband exemption under Section 375 of IPC as the relation of the abuser and victim is not significant for it to be punishable.

International Overview

India as a signatory to the Universal Declaration of Human Rights (UDHR) is influenced by the principles endorsed in it but the absence of concrete marital rape laws is contrary to Article 1 of UDHR.
The UN Committee on Elimination of Discrimination Against Women (CEDAW) in 2013, advised India to eliminate to the concept of impunity against marital rape. Article 1 of CEDAW characterises “Discrimination of Women” as any form of differentiation based on gender that impedes women, regardless of their marital status, from exercising their human rights and fundamental freedoms in social, cultural, civil or any other spheres.
India's failure to recognize marital rape as an offense also violates Article 26 of the international Covenant on Civil and Political Rights because marital rape creates distinction between married and unmarried women, introducing a form of discrimination that undermines this fundamental principle. This covenant also reiterates equal protection and dignity through domestic legislation of member states.
India consides in a fragment of the 32 countries in the world that is yet establish marital rape as an offense. The irony lies in the fact that before the independence of India, Poland criminalized marital rape; which even 90 years later is still neglected under the iron curtain of marriage in India.
Section 375 of the Indian Penal Code, states an exception to marital rape named as “husband exemption” but if we look back to the roots of this provision, it is the dominance of England on India and the well-established patriarchal culture. Ironically England itself recognised marital rape as a crime in 30 years ago followed by Wales, Northen Ireland, Scotland and when the doctrine of coverture received criticism from the citizens in the mid-90’s.
European Commision on Human Rights states “A rapist remains a rapist regardless of his relationship with the victim” which underlined a crucial perspective on sexual assault as a violation of human dignity.
Canada, Sweden, Australia, South Africa and all 50 states of the USA, and many more countries have criminalised marital rape to a great extent. Some countries have penalised the offence with either death penalty or life imprisonment.

List of some countries and their punishment for the offence of Marital Rape

United Kingdom	Life imprisonment
Australia	15 years maximum imprisonment
Turkey	10-15 years of imprisonment
New Zealand	20 years imprisonment
Qatar	Life imprisonment
Philippines	20-40 years imprisonment
Switzerland	1- 10 years of imprisonment

Current Scenario

A new criminal law bill named “Bhartiya Nyaya Sanhita” introduced in Lok Sabha on 11th August 2023 is in the process of enactment. After 163 years of IPC, a new criminal law aims to bring change however it retains most of the offences of the Indian Penal Code, 1860. Instead of Section 375, rape is defined under Section 63 which is followed by the husband exemption. In the 21st century, it's disappointing that marital rape is still legal . Same as the IPC, the new bill also repudiates the existence of forced sexual activity committed by a husband on his wife as an offence. The institution of marriage does not transfer her right to consent or irrevocably submit her sexual autonomy. Recognition of marital rape is overdue, and suggested plenty of times but still no actionable step has been taken to make it illegal.

Adverse Effects of Marital Rape on Society

Marital rape is an evil that need to be eradicated to give justice to the ones that suffer in silence behind closed doors in the name of marriage. It is not only a violation of human rights but also physical as well as emotional damage. Victims if rape may suffer from post-traumatic stress disorder, anxiety and depression which can potentially hinder their overall well-being.

Women who suffer marital rape have a breakdown if trust in marriage and find it difficult to feel safe in their own home. It's certainly challenging to live in the same room as their abuser with the fear of assault any moment. Children within the family or born out of the sexual assault have to witness the stress and horror of a disturbing environment. Other ill-effects of marital rape suffered by the victim include hampering the mental as well as emotional well-being and lowered productivity, reduced decision making.

Advantages & Disadvantages of Marital Rape Provisions

Here are the advantages of having marital rape laws:

Upliftment of Human rights: Marital rape if acknowledged as an offence will dodge further violation of human rights. It not only creates an upward curve but also a positive impact for the victims and survivors in India.
Recognition of wife as separate legal entity: The doctrine of coverture is the prime reason behind the husband exemption which shifts the woman into a subordinate position. Repealing the exemption will make it evident that the wife is a separate legal entity and she has the right to make decisions for herself.
Safe environment for victims: Victims tend to suffer alone. Acceptance of marital rape as an offence will brings us one step closer to creating a safe environment for the victims. It'll not only create a safe space but make the public aware of its existence.
Criminal lens to marital rape: Under domestic violence, there are civil remedies available which make marital rape a less sincere offence. Enactment of marital rape provisions will make it a criminal offence, increasing the accountability and deterrence for the abuser.

Here are the Disadvantages of having marital rape laws:

Misuse: This is the number one reason why the center and judiciary have not been able to make a concrete decision they make marital rape illegal. According to a report, 83 % of 498 (a) cases are false which increases the probability of marital rape laws also being misused.
Interference in the institution of marriage: Issues that happen between the husband and wife are interfered with by the state will make it discursive. This has also been addressed in Parliament that marital rape laws will unnecessarily obstruct the idea of marriage.
Negative impact on the institution of marriage: Criminalising marital rape will discourage the youth from marriage which eventually decline the pious institution of marriage.

Challenges in implementing marital rape provisions

Lack of enforceability due to evidence: It is a challenging task to draw a line between consensual sexual intercourse and forcefully committed rape between husband wife. Since both of them may frequently engage in sexual activity, DNA & semen samples may not be relevant to prove the lack of consent.
Blurred reality: Enactment and execution of laws are two separate aspects of the same coin. Reality is far from the facts, judicial precedents and reports. Legal literacy rate is concerning and implementing a law on a concept which people don’t consider wrong is challenging for the authorities.
Sensitive religions and cultural sentiments: India is a culturally rich country where religion dictates the sentiments of the majority of citizens. As per religion, it is the right of the spouse to be sexually satisfied and procreation of children is one of the objects attained after marriage. If marital rape becomes illegal, it will be contrary to the ideologies influences by culture and religion.
Not enough resources: Inorder to implement the marital rape laws, the centre and state has to take several steps which will require setting up a new committee and work on educating people on the concept of marital rape. This will require extensive resources which may create a problem in allocation of funds.
Legal complexities: India has over 1248 legislations and around 450 articles with 101 amendments. These laws have created a complex legal system and they are interwined to each other. Repealing a exception two from IPC will lead to amendments to CrPC, Domestic Violence Act as well as enactment of a separate provision along with an investigating committee. This may bring more complexities to our current legal system.

Suggestions for the legislative bill on Marital Rape

Undoubtedly, India is different from other countries because it is culturally diverse in nature. Rules and legislations that work for other countries may not for India and inorder to make marital rape illegal, it very important to make certain changes in the enforcement.

Here are few suggestions by the author of this author to make effective marital rape provisions.

The period accessible to report marital rape against the husband is one year from the date it had been committed to avoid misuse of remedy.
The accused husband can approach the high court under Section 482 of CRPC to quash the FIR against him; if the allegations against him are perceived to be false.
Marital rape shall be a valid ground of judicial separation available to the husband (in case of false rape allegation)
Reporting of marital rape as per the Provision of zero FIR. The procedure after reporting FIR shall be in accordance with the provisions of Section 165 (5A) (a) of CrPC. The Investigating Officer shall take the victim to the nearest Lady Metropolitan/preferably Lady Judicial Magistrate and record specifically the date and the time at which he/she learnt about the commission of the offence of rape. If there is any delay exceeding 24 hours in taking the victim to the Magistrate, the investigating officer should record the reasons for the same in the case diary and hand over a copy of the same to the Magistrate.
Representation Legal assistance shall be provided at the police station. A list of willing advocates to act in such cases shall be kept at the police station for victims who do not have a particular lawyer or who’s lawyer is unavailable.
The medical examination of the victim wife shall be performed according to the provision of Section 164 or CrPC which deems fit for marital rape and the medical examination of the accused husband shall be performed according to subject to the provision of Section 53 (a) or CrPC which deems fit for marital rape.
The woman should be sent to the medical practitioner for examination within 24 hours of receiving the information of the commission of the offence.
The registered medical practitioner should prepare the report without any delay with the following information:

a. The name and address of the victim and the accused

b. The age of the victim and accused; injury marks,

c. He described the material taken from the person for DNA profiling,

d. The general mental condition of the woman, and Other material particular in detail as well.

The report shall precisely provide the reasoning of every conclusion reached and the registered medical practitioner should immediately forward the report to the investigating officer and the investigating officer should send it to the magistrate under Section 173.
Trial of marital rape shall be conducted in cameras as per the provisions of section 327 (2) of CR.P.C. The victim of marital rape, while giving testimony in court, should be allowed sufficient breaks when required.
The questions put in cross-examination on behalf of the accused, in so far as they relate directly to the incident should be given in writing to the Presiding Officer of the court who may put them to the victim of marital rape in a language which is clear and not embarrassing.
The State Government shall prepare guidelines for the use of non-governmental organizations, professionals, and experts or persons knowing psychology, social work, physical health, mental health, and women's rights protection organization to be associated with the pre-trial and trial stage to assist the victim of marital rape.
The Marital Rape Prevention Education program shall work diligently to prevent sexual violence by providing funding to state and territorial health departments in all 28 states, and 8 union territories.

Conclusion:

Women were often viewed as property or possessions of their spouses, leading to a situation where the notion of rape within marriage was not even acknowledged. In this perspective, husbands were perceived as an absolute authority over their wives and could act without constraint. This concept resulted in a severe violation of women's rights and bodily autonomy. Regardless of attempts to reframe or categorize the issue, the fundamental truth remains unchanged: rape is rape, and an individual committing such an act is a rapist. Marital rape is an evil of the society that is hidden under the blanket of marriage. Forceful sexual activity even if it is committed by the husband should be an offence as it is a threat to gender inequality and human dignity. The absence of provisions dilute the crime as a domestic violence issue which demeans the suffering of the victim. It’s high time India as a nation that has been known for uplifting fundamental rights criminalizes marital rape.

References:

Marital Rape Laws In India

Thought Leadership

Industry News

Interviews

Know Your Law Firm

Quick Links

Search For

Search By

Knowledge Center