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Marital Rape and the Law

12 min read
Marital Rape law insider

By: Arshia Jain


The phrase “marital rape” refers to sexual contact between a man and his wife without the wife’s permission. There may have been some use of force, a fear of danger to her or another person she cares about, or any other harm inferred based on previous attacks, making a woman believe that if she resists, the force will be used against her. Marital rape is a crime that has gone unreported in society for a long time. However, as society’s knowledge of women’s duties and rights grew, so did the acknowledgment of marital rape as a crime. In the year 1932, Poland was the first country to criminalize marital rape, and many other countries followed suit throughout time. Today, approximately 150 nations across the world have made marital rape illegal, and the fact that India is not one of them is a major source of concern.

Let us now go on to a more in-depth discussion of the notion of marital rape and its current state.

Status in India

In India, the idea of marital rape is still considered among the crimes that have not yet been completely acknowledged. In our nation, there are laws in place to protect women from rape. The crime of rape is classified as a crime under Section 375[1] of the Indian Penal Code 1860 and is criminalized by Sections 376[2]. However, none of these sections of the IPC consider marital rape to be a crime; rather, marital rape is listed as an exemption in section 375. Considering marital rape as an exception, it is apparent that the notion of marital rape in our country is mostly unknown and unacknowledged.

There might be a variety of causes for such a lack of understanding of this topic in Indian law. When England governed India, Englishmen developed Indian laws. As a result, the majority of these rules are based on British legislation and Victorian norms. And, according to those norms, women were not considered equal to males at the time, and married women did not have their own legal identity. As a result, the woman was seen as a man’s chattel, and after marriage, the husband has entire control over his wife’s body and overall existence. As a result, having intercourse with the wife without her permission was seen as a man’s societal prerogative.

As a result, the rules and impacts of English culture aided India’s previously existing patriarchal society. As a result, the seriousness of marital rape was never fully appreciated or acknowledged in this male-dominated community.

The position of women in society has improved throughout time as a result of numerous initiatives by women’s rights activists and the passage of time. Our nations’ laws are built on an egalitarian perspective, and Indian law today recognizes a wife and husband as independent legal entities, with laws established expressly for the care and protection of women. As a result, we can observe that this field is progressing. Though the improvement is positive, it is not universal since rape laws continue to discriminate.

India’s existing law on Marital Rape

As previously stated, the IPC Sections 375 and 376 define rape and its penalty. Let’s take a closer look at these clauses and the issues they raise.

When a man has sexual intercourse with a woman, he is deemed to have committed rape, according to section 375.

  • Despite her wishes
  • Without her permission
  • Obtaining her agreement by placing a person she cares about in danger of death or harm.
  • To have intercourse, providing a false impression that the person she is having intercourse with is her husband, but the guy is aware that this is not the case.
  • When she is unable to appreciate the nature of such activities at the time of consenting owing to insanity, drunkenness, or the administration of any stupefying substance to her by a man or another.
  • When she is under the age of sixteen, with or without her permission.

There are two exceptions to this rule in this section. The second exception is as follows:

Sexual intercourse between a man and his wife, if the wife is not under the age of fifteen, is not rape.

As a result of reading this statute, we can easily see that it is illegal since it breaches Articles 14 and 21 of the Indian Constitution.

Ways in which law infringe the Basic Right

Equality before the law and equal protection under the law is guaranteed under Article 14 of the Constitution. Even though the country’s Constitution allows for it, the country’s rape laws discriminate against married women. Women are protected against rape by the legislation, which divides them into two categories. The lady has the right to be protected under this rule only if she is unmarried, and she must be under the age of 15 if she is married.

As a result, it takes away a married woman’s right to be free from her husband’s sexual exploitation. To begin with, the legislation ignores the notion that sexual exploitation is degrading and dangerous to a woman, regardless of her age or who perpetrates it. Second, the law does not regard any female under the age of 16 to be a kid, whether or not she is married. So, why does getting married take away that girl’s right?

In Budhan Choudhary Vs the State of Bihar[3], the Supreme Court declared that when a classification is formed under Article 14 of the Constitution, a test of reasonability is applied, which is passed only if there is a reasonable link between the classification and the goal it seeks to achieve. This designation of women as an exception fails any rationality test. On the other hand, this exemption to the rule opposes the legislation’s goal, as the law’s major goal is to offer reparation to victims who have been victims of this crime’s heinousness.

However, this exemption takes the law on a new path, failing to address the issue of marital rape and providing no justification for married women’s claims[4].

Let us now turn to Article 21 of the Constitution, which gives every citizen of the nation the right to life and personal liberty. And, over time, the Supreme Court has broadened the scope of this article to encompass the right to sexual privacy, the right to live with human dignity, and the right to bodily self-determination via numerous decisions[5].

The omission of marital rape perpetrated on women from rape legislation constitutes a breach of Article 21 of the Constitution’s rights. It specifically violates the three women’s rights outlined above.

Privacy is a fundamental right.

In addition to physical privacy, the right to decisional privacy, the right to be left alone, and the right not to be disturbed are all part of the right to privacy. Any forced sexual cohabitation is a breach of a woman’s right to privacy and also constitutes rape. As a result, not classifying forcible sexual interactions within marriage as rape and decriminalizing it is a breach of a married woman’s privacy. And our Constitution treats everyone equally, regardless of whether they are married or not.

The right to make decisions about one’s own body

This right gives every citizen of the country bodily autonomy as well as self-assurance, and an individual should be the only one who has a final word in problems concerning their body. And having sexual interactions with others is one of the most personal and intimate decisions one can make in terms of self-expression and self-assurance. And the statute that decriminalizes marital rape takes away this woman’s right. Because it deprives a woman of her decision-making authority and disregards her consent and volition.

Human dignity is a right that everyone has.

The Chairman, Railway Board Vs Chandrima Das[6], a landmark decision, concluded that rape is more than merely a violation of a person’s basic human rights. Rape is a crime committed against society as a whole, not against a single woman. It is a crime against basic human rights and a violation of Article 21 of the Constitution, which guarantees the right to live in dignity.

The right to dignity is a fundamental human right, yet India’s rape laws strip a married woman of her right to dignity. As a result, this exclusion violates women’s human dignity as guaranteed by Article 21 of the Indian Constitution. As a result of the above debate, it can be concluded that India’s rape laws are highly discriminatory and are founded on a preconceived concept of a patriarchal culture. To make some adjustments, the Supreme Court of India issued a ruling in 2017 (Independent Thought Vs Union of India[7]) that criminalizes a man’s unwilling sexual intercourse with his wife who is between the ages of fifteen and eighteen.

By issuing this ruling, the Supreme Court has attempted to assert that a minor girl is always minor, and that laws protecting her from sexual violence are her inherent right, and that just because she is married (marriage under the age of eighteen is also illegal) does not take away her rights, and that she is entitled to full protection under such laws. This decision sparked a revolution, and individuals have begun to publicly criticize exception 2 of Section 375 of the IPC, and a slew of writ petitions have been filed seeking that exception 2 be declared illegal. These petitions also argue that in situations of marital rape, all women, not only little girls, should be given equal protection.


We talked about our country’s rape laws being deficient and the challenges that married women experience as a result. Apart from these obvious consequences, India’s rape laws have several indirect consequences as well. For example, due to the insufficiency of laws relating to marital rape, a woman attempting to divorce her husband may resort to domestic violence and dowry protection laws, since these are the only choices open to her. Though it may not appear so at first glance, the abuse of other laws is a serious problem.

We have talked about the relevance of these rules so far, but we have ignored the risk that they will be misused if they are enacted. We are all aware of how women are abusing Section 375 of the IPC to obtain fraudulent benefits. Similarly, criminalizing marital rape will make it more subject to such abuses, making the position of the husband more insecure than before.

I’m not here to argue that such laws against marital rape should not be enacted. I completely understand the critical necessity for this, as well as how important it is for married women in our society to keep their sexual liberty. But all I’m trying to argue is that, like anything else, it has advantages and disadvantages. As a result, whatever action we take should be monitored and controlled to ensure that it is not misapplied and defeats the primary goal of criminalizing marital rape.

The International standing of marital rape

In the international setting, the idea of marital rape has evolved throughout time. It’s the same as in India. Initially, most countries throughout the world did not embrace this notion. Earlier Sexual offenses were seen as a private criminal, a crime against the spouse and father of a woman’s property. As a result, the notion that a man may also rape his wife was dismissed.

It was formerly thought that when a woman marries, she gives up this privilege to her husband, and as a result, her husband has complete control over her body. When rape was initially proclaimed a crime against society in the 17th century, it was portrayed as a crime that damages a woman’s virginity, which is impossible to achieve in marriage.

Lord Matthew Hale, a British judge, argued in 1736 that “the husband cannot be guilty of a rape perpetrated by himself against his legitimate wife, because the wife has handed over herself in this manner to her husband by their common consent and contract, which she cannot withdraw.[8]

With time, some revolutionary developments began to occur. The following are some of the important factors that are contributing to a shift in attitudes regarding marital rape:

  • Women’s human rights are recognized.
  • International organizations’ recognition that abuses of women in private spaces is likewise a violation of her rights.
  • Because marital rape has historically played a significant role in the transmission of STDs, public health policymakers have pushed the state authorities to recognize it.
  • A global revolution of the marital institution, with women today having more autonomy and respect than ever before.
  • Feminist movements throughout the world demanded sexual liberty for women in the twentieth century.

The above-mentioned factors played a significant role in changing this society’s mindset and in laying the groundwork for laws against marital rape in many countries around the world. As a result, many countries have criminalized it over time, but laws against marital rape still have serious loopholes all over the world. Though Marital Rape was recognized in Minnesota, the law included an exception: if the spouse is inebriated or drugged at the moment of sexual intercourse, it does not constitute rape. This exemption was challenged in court, and the court revoked it later this year.

The law in the United States did not classify marital rape as a criminalized offense until the 1970s when it was added as an exemption to the definition of rape in the penal statutes. In the United States, reforms in marital rape legislation occurred after the 1970s. Initially, the rules stipulated that for marital rape to occur, the husband and wife must live apart, and only then may a husband be accused of marital rape. However, in the case of Oregon vs. Rideout, this legislation was challenged in a court of law in 1978.

Even though the judgment in this instance said nothing meaningful, it sparked rallies calling for changes to the country’s criminal rules addressing rape laws. Gradually, legislatures began to recognize women’s rights, and by 1993, all 50 states in the United States had criminalized the crime of marital rape, albeit certain states’ laws still contain gaps here and there. According to the National Coalition Against Women Violence’s report, at least one out of every ten women will be subjected to marital rape during their lifetime. As a result, the United States, which is recognized as the world’s most developed nation, is also feeling the fury of this issue, and a whole and just picture is still a long way off.

Illegality of Marital Rape under International Law

One well-known truth is that marital rape is a crime that has a significant negative impact on women’s human rights. Marital rape is a violation of jus cogens laws, such as the right to life, liberty, and protection from violence. It also infringes on an individual’s right to autonomy and well-being in the family. These international treaties cover the problem of marital rape either directly or indirectly. The United Nations DEVAW[9] and the Beijing Declaration[10] are two of the most prominent international measures addressing this subject.

In the United Nations Declaration on the Elimination of Violence Against Women, adopted in 1993, all violence against women, including marital rape, was considered to be a violation of women’s Fundamental Human Rights guaranteed by international law (DEVAW). Following its instant acceptance, the United Nations General Assembly asked that all U.N. member countries develop a strategy for women’s protection as soon as feasible. DEVAW standards have strong persuasive power, even though they are not legally obligatory.

As a result of the fourth World Conference on Women in Beijing in 1995, the Beijing Declaration was adopted. This proclamation reaffirmed that, under international law, domestic abuse against women encompasses physical, sexual, and physiological assault, including marital rape[11].


The issue of marital rape is not a new or unfamiliar topic to the people of this country. Marital rapes have been documented in culture for as long as the institution of marriage has existed. However, it has not been acknowledged, and if it has been recognized, the people have rejected it. Not only the offenders but also the victims were silent about the subject.

But, through time, we’ve progressed to the point where we can now declare that we’re aware of it and have laws in place to address it.

Though the laws in place currently aren’t perfect, they will be in the future, with both parties’ interests in mind. But there is one thing that we must all understand: it is not always the law that comes to our rescue; to abolish a societal issue like marital rape, it is necessary to evolve people’s ideas. Women should be empowered enough to speak up about it, but not to the point where they become tyrants who abuse the laws. This can only be accomplished by bringing about a societal shift, and only then can this issue be eradicated.


Marital Rape- Current legal scenario in India in comparison to the world

Marital Rape in The Indian Legal Scenario

All you need to know about marital rape

Proving marital rape is not easy; it would be a challenge for the woman: Flavia Agnes

Marital Rape Perception and Impact of Force

Marital rape: finding the right to say no

  1. Section 375 in The Indian Penal Code
  2. Section 376 in The Indian Penal Code
  3. Budhan Singh & Ors vs State Of Bihar on 25 April, 2006
  4. Marital Rape: A Non-criminalized Crime in India
  5. Marital Rape
  6. The Chairman, Railway Board & Ors vs Mrs. Chandrima Das & Ors on 28 January, 2000
  7. Independent Thought vs Union Of India on 11 October, 2017
  8. Marital rape in a global context: from 17th century to today
  9. Genocide Prevention- United Nation
  10. Events – United Nations
  11. The right to no : the crime of Marital rape , women human rights and international law