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How Conjugal Rights are in contradiction with Marital rape?

10 min read

By K. Manoggnya Reddy

Published on : September 09, 2021 at 17:40 IST


Four years after the J.S. Verma committee recommended making marital rape a crime, and make it mandatory to punish the offender of rape even if he or she is married to a victim, the courts are still view it in an contradictory and are unconvinced that this should be criminalized.

While courts have been sympathetic to the victims of marital rape, they have also acquitted the accused in certain cases. In Kerala, a court has recognized marital rape as a ground for divorce. In a similar case in Maharashtra, a court ruled that forcible sex with a spouse is not an illegal act though it left her ‘paralyzed’.

The Justice J.S. Verma committee even had recommended the removal of the immunity for marital rape. The report noted that many foreign courts had withdrawn the immunity from marital rape. It has been stated that – A marital relationship between a victim and the perpetrator is not a valid defense for rape or sexual violation. The relationship between the parties is not relevant to and the inquiry is only about whether the complainant willingly participated in the sexual activity or not. The fact that the victim and the accused are married or in a relationship may not be considered a mitigating factor when it comes to rape cases.

Marital Rape in India

The Indian Penal Code has defined rape as any act that includes any type of non-consensual intercourse with an individual. But, Exception 2 to Section 375 allows for the non-consensual (though not specified) sexual intercourse between a man and a woman if they are a married couple, the girl being over the age of 15 and to not consider it as rape under such circumstances.

Currently, if a wife enters into a marriage with her husband, she is presumed to give implied consent to have sex with him after the marriage. In almost every country in the world, non-consensual sexual contact between a spouse and their lover is considered a criminal offense. In India, however, this is still not criminalized.

Several High Court and Supreme Court petitions have challenged the constitutionality of the exception to unwilling sexual intercourse between a woman and her husband, which then was criminalized non-consensual sexual behaviour towards women who are less than 18 yrs of age in marriage in a recent landmark judgment. This judgment has led to an increase in writs challenging the Constitutionality of Exception 2.

How it violates the provisions of the Constitution

Under the Indian Constitution, it is guaranteed under Article 14, that no person shall be denied equality before the law. Even though the country’s criminal laws guarantee equal protection for women, they still refuse to criminalize the rape of female victims by their husbands.

During the 1860s, when the Indian Penal Code was drafted, a married woman was not regarded as an independent legal entity. Instead, she was simply regarded as the chattel of her spouse.

Exception 2 allows such acts as not to be considered as acts of “rape” if they were carried out by a spouse. This doctrine is largely influenced by the concept of merging a woman’s identity with that of her husband.

The concept of the doctrine can be traced back to the British colonial rule in India during the Victorian era. During this period, the country was a British Colony. The concept of rape was derived from Victorian patriarchal norms that regarded women as inferior. It also excluded married women from owning property and recognized the husband as the ruler of their home.

Modern Indian law now allows to consider married couples separately and have their own legal identities. And is also exclusively concerned about the safety and protection of women. This concern is evidenced in the various statutes designed to protect women from harassment and violence. Some of these include the Protection of Women from Violence Act and the Prevention of Harassment at Work Act.

Exception 2 violates the rights of married women as it prevents them from obtaining equal protection under sexual harassment laws. This Exception allows married women to be victims of abusive actions from their partners, while protecting unmarried females from the same acts.

Exception 2 violates Article 14 because it creates a classification that has no rational relation to the purpose of the statute. In some cases, the Supreme Court held that a classification can be passed only if it has a rational nexus to the objective. But, Exception 2 of Section 375 of the Criminal Code prohibits the punishment of individuals who rape. It is incomprehensible why a husband should not be punished as well as the consequences for the women are the same between married and unmarried women.

Even more married women who are subjected to abusive situations at home may find it harder to escape their husbands’ abusive behavior due to their financial ties.

Exception 2 encourages husbands to have non-consensual intercourse with their wives. This is because they know that their actions are not restricted or prohibited by law. So, The Exception does not meet the test of reasonableness and thus violates the provisions of the Indian Constitution.

Exception 2 is a violation of the Indian Constitution’s Article 21. It states that a person’s liberty shall not be denied according to the procedure prescribed by law. The Supreme Court has interpreted the clause to include the rights mentioned in Article 21 of the Constitution. These rights include the protection of health, safety, and dignity.

In recent years, courts have started to recognize a person’s right to refrain from sexual intercourse. This includes a person’s right to be free from unwanted sexual activity. In the Supreme Court’s case of Karnataka vs. Krishnappa[1], the court held that an act of violence that is done in order to humiliate a woman is an unlawful intrusion on her right to privacy. In this same case involving non-consensual sexual intercourse, the court ruled that it amounts to sexual and physical violence. The Supreme Court then recognized the right to make choices related to sexual activity.

Conjugal Rights

Marriage is governed by Personal laws that deal with various terms such as divorce, custody, and restitution. Section 9 of the Hindu Marriage Act, 1955, says that if a spouse withdraws from the society of their spouse without any reasonable excuse, the spouse may approach the Court for the restoration of Conjugal rights of the former. Conjugal Rights are basically used against a spouse who would rather not be with the other spouse for no reasonable cause. If one of the spouses wants to sue, the couple would be forced to stay together.

The decree of restitution cannot be enforced by making a party who has gone away from society live with the one who sets a petition for restitution. There are certain requisites for Section 9 to be applicable: Such both of them should not be staying together, no reasonable ground for the withdrawal of one spouse from the other, and the aggrieved party is the one who should apply for the restitution of conjugal rights.

Such restitution can also be rejected in certain circumstances such as: if the respondent is in a position where they can claim matrimonial relief, when the petitioner admits to committing some kind of matrimonial misconduct and when the petitioner makes the situation of the respondent questionable or simply, his actions makes the respondent’s situation difficult that they cannot stay with the other.

The burden of proof or the onus is usually on the petitioner to prove that the respondent left him. The burden then shifts to the other person to prove that there is a reasonable ground to believe that the respondent did not want to be associated with the petitioner.

In India, marriage is considered as a sacred ceremony. The parties to marry are filled with dreams and hopes for the future. Sometimes, even though things seem to work out, parties often find themselves arguing and quarreling, which leads to them going for divorce. When one of the spouses thinks that there was nothing wrong with the arrangement, then they file an application for the Restitution of Conjugal rights in order for a fresh start.

The aid of restitution of Conjugal Rights is a measure that requires both parties to live together. However, it has been abused many times and or turned out to be a violation of Constitutional rights of lie, privacy, and equality therefore being deemed as Unconstitutional.

This behavior is used by people who are dissatisfied with their spouse. It is usually used to threaten their spouse so that they will accept the unacceptable loss and take their case back.

This topic is often debated as to whether it is right for one party to stay with the other party after the marriage has already ended. Some argue that it is to preserve the marriage, while others say it is not so important as it is forced to stay with the one who is not interested in maintaining their relationship.

Contradictory view of judiciary on Marital Rape and Constitutional review on Conjugal rights

The term spousal rape is often used to describe a sexual assault on a spouse or a partner. This type of rape has never garnered a lot of attention due to its unusual nature. However, many people still consider it as rape regardless of its exact nature.

An act of sexual intercourse without the consent of the wife will not be considered rape in most countries with certain exception. In some countries, such as Australia, it is regarded as a crime for a man to commit such an offence even when in a marriage without getting the women’s consent. In other countries, it is assumed that women do not surrender their consent until they are married.

The issue on one side is related to the dignity of a woman. On the other hand, it is related to the conjugal rights to have sex and cohabitation. This type of rape is not limited to physical pain. It can similarly be considered psychologically traumatic just like in any other form of rape.

Most of the time, it happens behind the door so it doesn’t affect the victim’s social status. Also, the husband’s conjugal rights when it comes to these topics is quite complete but also is considered a ‘not-so-serious’ issue.

The concept of marriage has been going through a long process of evolution. It was initially created to bind women to men and guarantee that their children would be the man’s biological heirs. Through marriage, a woman becomes a man’s property. This concept is said to have been established to establish sexual rights over the woman. Once upon a time, marriage was regarded as a sacred institution as religion gradually took over. Love and affection has been regarded as last rites between the bride and the groom.

In the past, rape was considered an sexual act committed by a man who physically abused a woman other than his wife without her consent

The  FBI has defined rape as the carnal knowledge of a female forcibly and against her will. The concept of rape is defined by the Model Penal Code of America states that a man can compel a woman to submit to his sexual desire by force or threat of death.

Proof of resistance is considered an important aspect of non-consent. In India, the case is mainly focused on proof of resistance. Consent and Submission are to be treated as two separate concepts. A woman is said to give her consent only if she freely agrees to submit herself and is in free and unconstrained physical and moral possession of her powers.

Consent is the exercise of a free and undisputed right to refrain from what is being agreed to. It always is voluntary and is acknowledged by the other. Consent of a woman to relieve the accused of rape is done in a manner that is both honorable and good. It is done with deliberation and with the consent of the victim.

Sometimes, women find it hard to believe their husband can rape them. These acts are done despite their education or status or class. Most women don’t discuss their experiences with rape or discuss it openly. They also don’t consider marital rape as a form of rape.

Currently, Indian laws do not provide any provision for helping abused wives and penalizing the guilty husbands. This law is mainly applicable to cases of domestic violence. The report released by the National Commission for Women stated that rape should be considered a criminal offense.

This is one of the reasons why many countries have taken various measures to ensure that marital rape is regarded as an offence. The Supreme court of Nepal also recognized marital rape as a form of rape which can be charged. In the controversial ruling, the Supreme Court declared that non-consensual sex between a husband and his wife is rape.

The court also stated that religious texts do not support this type of behavior. “Hinduism stresses conjugal harmony based on mutual understanding between husband and wife”.


Recognition of the conjugal right to have sex with spouse does not constitute a license to rape for the husbands. Without a remedy, there is no value in recognizing a right. In order to get remedy against this conjugal right, the remedy for it can be considered as the dissolution of marriage.

If both parties are married and one of the parties refuses consummation of their marriage without any reasonable cause then the other party may file a divorce or seek legal recourse.

If a legal right is violated, then a person has every right to pursue legal recourse. The Law allows us to use reasonable force to protect our property and person.


[1] Karnataka vs. Krishnappa, ILR 1994 KAR 89, 1993 (4) KarLJ 680