Rape has been defined as one of the most heinous crimes to humanity but sadly again one of the most common crimes happening around the globe primarily in a patriarchal society like ours where male dominance is deeply rooted in culture. While certain offences against women like rape, domestic violence, dowry death, etc. have been brought to severe punishment by the law but still actions like occasional rebuking, offensive comments, beating and other forms of violence have no legal standing because they are considered to be a private matter between spouses rather than an offence in society.

How is Marital Rape defined?

Marital Rape or spousal rape refers to forced intercourse by a man on his wife against her wishes or where she is unable to give her consent by either threat of or actual use of force. Marriage is regarded as a social institution that implies a dominant authority of the husband over wife where she should give her consent for his demands for forced intimacy. Lack of consent from one party to the other is the main basis for proving the offence which may or may not accompany physical violence.

Difference between Rape & Marital Rape-

The word “Rape” has been derived from the word “Raptus” which meant either theft or tort, against someone’s property as a woman was considered to be either property of her father before marriage &of her husband after marriage. 

Section 375 of the Indian Penal Code defines “Rape” as forced sexual intercourse by a man on a woman, which includes all forms of sexual assault. On the other hand, marital rape is neither defined nor made a punishable offence under the act. But, Sub-section (2) of sec 375 exempts unwilling sexual intercourse between a husband & wife above 16 years of age from the definition of rape, which means that a husband has absolute immunity in law against raping his wife.

Ironically, in a democratic country like ours where a woman has right to life & personal liberty until she is unmarried, but once she gets married she loses her right to stick to her personal choices, making her independent choices even regarding her reproductive choices & physical intimacy as suddenly the matters turn to be "private among spouses".

It is comparatively easier for a person to prove that an offence of "rape" has taken place, but for proving that an offence of marital rape may require evidence of marital discord or separation to show the activity was non-consensual.

According to estimates given by National crime Bureau Records (NCRB), rape is the fourth most common crime in India. But, the condition is worse in case of marital rape, as out of one male out of every three males in India has admitted the fact of committing the crime. 56% of women have justified the actions of the husbands to be legitimate and a display of affection and many agree that it is a chronic problem rather than a one -time unfortunate event.

What are the reasons for the crime being so common?

Some of the factors which are responsible for the crime are-

1.    Gender Differences:

Traditionally speaking, a male child is given preference over a girl child, which generally forms the basis for the idea of toxic masculinity in their minds. A wife is always submissive to her husband and should agree to his demands. 

2.    Cultural Aspects:

In different cultures, ideas relating to marital rape are quite far-off as the act of imposing sexual intercourse against the will of the wife is not identified as a moral wrong. Often men who coerce a spouse into a sexual act believe their actions are legitimate because they are married.

3.    Financial Dependence Wife over Husband:

Since old times in typical Indian society, a husband is the one who earns bread & butter for the family, while a woman manages the house i.e. she is financially & emotionally dependent upon her husband which makes it difficult for women to go for divorce or judicial separation.

4.    Marriage Arrangements:

Still, now, marriages are still arranged for procreation, property, and consolidation of extended family relations, and seeking judicial separation or divorce by a woman is still a “taboo” doing which means insult of the men who “negotiated” the deal.

Legal Analysis of “ Marital Rape”

As of now, India is one of those 36 unfortunate countries in the world who haven't criminalized the offence of marital rape. Some of the laws which provide legal immunity to husband for abusing their wives are as follows-

a.    Marital Rape: an exception from Rape-

Section 375 of the Indian Penal code contains all forms of sexual assault involving non-consensual intercourse with a woman. Though, the second exception to section 375 exempts unwilling intercourse between a husband & wife above fifteen years of age which implies there is no prosecution in such cases. Facing criticism over this exception, the Supreme Court of India has passed a decision in a case criminalizing unwilling sexual contact with a wife between fifteen-eighteen years of age, which has given a ray of hope for enlarging the scope of the offence.

b.    Violation of sec Article 14: Right to Equality over law -

Article 14 of the Constitution provides that the state shall not deny to any person equality before the law based on gender within the territory of India. Though, the constitution provides equality before the law but discriminates such women who are subject to abuse & exploitation by their husbands.

In Budhan Singh vs. State of Bihar AIR 1955 SC 191

The Supreme Court held that any classification under Article 14 of the constitution is subject to the test of reasonableness which can be passed only if such classification has some rational nexus to the objective that the act seeks to achieve. But the second exception to s.375 frustrates the purpose of Article 14 of the constitution.

c.    Violation of Article 21 of the constitution: Right to life & personal liberty-

Article 21 of the Indian Constitution states" No person shall be denied of life & personal liberty except according to the procedure established by law. Thus, Art 21 includes the rights to privacy, dignity, safe living conditions& a safe environment among others. Still, the second exception to section 375 violates Article 21 of the constitution.

In The State of Karnataka vs. Krishnappa, (2000)4 SCC 75 (India) the Supreme court of India recognized the right to abstain from sexual intercourse and freedom of unwanted sexual activity is a personal right enshrined in the broader meaning of Right to Life& Personal Liberty. The Court held that “Non-consensual sexual intercourse amounts to physical & sexual violence.

In Suchita Srivastava vs. Chandigarh Administration AIR (2008) 14 SCR 989 India that a woman has a right to make reproductive choices which have been enshrined in Article 21 of the Indian Constitution providing rights to privacy, dignity, safety & bodily integrity under the constitution.

Until the early 1990s, international law was also discriminatory about the crime of “Rape” being a crime against the honour of the woman rather than being about her physical or emotional well-being. As article 27 of the Geneva Convention stated" Women shall be protected against any attack on their honour in particular against rape, enforced prostitution or any form of indecent assault. Only to agree later that it is a crime against the complete well-being of a person. 

Where the solution to the problem does lies?

According to Catherine Mackinnon, a Harvard law school alumni &social activist states" Rape laws in male-dominated societies exist to regulate access to women from the male perspective, not to protect women's right to freely decide whether engage in sexual intercourse or not".

Some of the points worth suggesting are-

1. Women so far have had recourse only to section 498-A of the IPC, dealing with cruelty, to protect themselves against “perverse sexual conduct by the husband”.

But, the problem is there is no adequate standard of measure or interpretation for the courts, of ‘perversion’ or ‘unnatural’, the definitions within intimate spousal relations which are unanswered because the judiciary and the legislature are still silent.

2. The 172nd Law Commission report had made the following recommendations-

•    As a substantial step toward the law regarding 'Rape' to be replaced by the term 'sexual assault'.

•    In the light of Sakshi v. Union of India and Others [2004 (5) SCC 518], ‘sexual assault‘ on any part of the body should be construed as rape.

•    Rape laws should be made gender-neutral as custodial rape of young boys has been neglected by law.

3. Being the citizen of a democratic country like India, every person deserves to get a right to freedom of equality & personal liberty. What can help is, reducing illiteracy, raising social awareness for women to become financially independent, responsiveness about equal rights for everyone in the society regardless of gender.


eStartIndia Team

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