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Updated: Feb 24, 2022

Author: Rahul Aaditya, IV year of B.CA.,LL.B.(Hons.) from SCHOOL OF EXCELLENCE IN LAW (SOEL)

Co-author: Sai Madhumita Saravanan, III year of B.Com.,LL.B.(Hons.) from SCHOOL OF EXCELLENCE IN LAW (SOEL)


Rape is a crime of utmost savagery against women so is marital rape. The concept of Marital rape is where the victim is forced to have sexual intercourse with his/her spouse. In simple words when the victim is raped by his/her own spouse it amounts to marital rape. But here in our country this brutal crime has not yet been categorized as a criminal offense but is deemed as a civil offense, under the Domestic Protection Act. It is treated as a criminal offense only if the victim is below the age of 18. This type of odious crime is still prevalent in many parts of India and the victim can seek a remedy under the Civil Act. The main objective of this paper is to outline the severity of Marital rape and not being punishable as a criminal offense under IPC for victims above the age of 18.


Rape like all of us know is not only a crime of utmost savagery against women but also a violation of an individual's basic rights such as protection of life and personal liberty.

The Guwahati HC in the case of Nasiruddin Ali VS The State of Assam[i] held that rape is a violation of the fundamental rights of the victim under Article 21[ii] of the Constitution. The article guarantees an individual two rights namely, the Right to Life and the Right to Personal Liberty.

In India Rape is not seenas just another form of sexual abuse but as a very serious crime because of the patriarchal values imbibed in the society. There is a judgmental opinion by the society,on the woman if she loses her virginity before the marriage. There are high chances of her not getting married at all. If this is the case for matron women, then what would be the situation for Rape victims who had lost their Virginity without their consent? There have been numerous instances, where the Rape victim's family hascommitted suicide, just because they couldn't handle the pressure of society. But in contrast, the same society accepts Marital rape (Marital Rape or Spousal Rape in simple words is nothing but rape committed by the person to whom the victim is married) while it gets furious over Rape issues.

As of today, there are only seven countries in the world (UAE, Pakistan, China, Iran, Bangladesh, Saudi Arabia) where rape convicts are punished with the death penalty, and India is one among them. But in contrast in the year 2022, about 150 plus countries have criminalized Marital rape and only 32 countries in the world haven’t criminalized it. Sadly, India is one of them. When activists and the public of India have raised their voice in the past to provide severe punishments for Rape, (similar to punishments given by countries that follow the deterrent theory of punishment) then why are the same public quiet about marital rape, does marriage amount to implied consent for sex?


Domestic violence against women is one of the major issues in India which has been exacerbated in recent times. The NCRB (National Crime Records Bureau) reported that in the year 2019 about 70 percent of the female population in India fell prey to domestic violence of one sort or the other. But in 2020 the NCRB stated that the violence against women dropped by 8.3 percent when compared to 2019. The data exhibited by the National Commission of Women shows a different picture, stating that from the month of February to May alone the domestic cases filed increased by 2.5 times. Approximately 1500 domestic complaints were lodged during this period.

As all of us know marital rape is one such form of domestic violence. It may not be surprising if we regard marital rape just not as another form of Domestic violence but as a crime against the spouse’s personal liberty.

The relationship between the victim and the perpetrator is in no way going to reduce the post psychological, emotional, and physical effects that rape is going to have on the victim. As a survivor of sexual assault, the wife is going to face depression, flashbacks (memories of past trauma appear as if they are taking place currently), and PTSD (post-traumatic stress disorder). The victims may indulge in self-harm, substance abuse (intake of drugs such as Cocaine and Marijuana), and even disassociation from their close ones as it's the most common form of defense mechanism that the brain uses to cope with traumas, especially traumas of sexual violence. The post effects of sexual assault may even have permanent effects on the victim, where the victim may suffer from a sleeping disorder, eating disorder, and sometimes even panic attacks.

Therefore, we shouldn't try to convince ourselves by stating that married couples are completely protected by the "Protection of Women from Domestic Violence Act 2005"as the offense is covered under this act. Yes, the term sexual abuse does come under one of those acts that amount to domestic violence, but this doesn't mean that this act is appropriate enough to deal with cases regarding Marital Rape. This act may define what sexual abuse is but it doesn’t outweigh the severity of rape as stated under section 375 of the Indian Penal Code. Therefore, this law is just going to treat Marital rape as another form of sexual abuse and in turn, reduces the intensity of this crime. Also, the domestic violence act is deemed to come under civil law as well. Hence, there are possibilities where the accused can get away without even a jail sentence as he has committed only a civil wrong and not a criminal offense. When raping an unmarried woman is deemed to be a criminal offense under sec.375 of the IPC, then why should spouses who commit marital rape be given immunity for such a severe crime?


Immunity Guaranteed by IPC for Marital Rape

The concept of Marital Rape in India is a legalized weapon for men to rape their wives. Rape is considered a criminal offense under sec.375 of the IPC. Under the sec. there are six conditions, which constitute rape, of which one of the conditions states that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape.This means that the wife being above the age of 15 cannot claim it under a criminal offense.

The age of consent for the child bride was increased to 15 years in the case of Phulmoni Dasi (also known as Queen-Empress vs. Hari Mohan Maiti),1886. Where the child-wife was raped by her husband, despite the age of the child being 11 years and the age of the husband being around 35. Though the autopsy report claimed the child died out of vaginal rupture, the husband was acquitted from Rape charges, as accordingly the penal code excluded marital rape and allowed a man to have sexual intercourse with his wife, as long she had attained 10 years of age.

But in the specific case, the court held that the man cannot enjoy the child as his wife when he had no concern for her health and safety. This case triggered the government to amend the Age of consent to be raised to 12 years. Later the Amendment act, of 1925 was enacted to raise the age of consent for the bride to 13 and 14 years respectively. Later on,in the case-law of Infinite thoughts v. Union of India[iii], the court held that if the wife is aged between 15 to 18 years, the husband is still convicted for rape. But this sadly gives the spouse an exception to rape women above the age of 18. The woman being a wife accepts that her husband has all sorts of control over her. The victim has nowhere to approach, as the law doesn't recognize it as a criminal offense, nor does the family of the victim.

The Constitutional Validity of Spousal/Marital Rape

At present the Delhi H.C is hearing a challenge regarding the Constitutional validity of the immunity provided by Section 375 of the Indian Penal Code 1872 for Marital Rape.

The petitioners claim that Marital Rape stands against all the fundamental rights guaranteed under Article 21, Article 19, and Article 14. The immunity guaranteed by sec 375 stands against the Right to Personal Autonomy of a woman, the right to life with dignity, and the Right to equality. This law creates an unnecessary classification between married women and unmarried women. It simply eliminates the Right of married women to give consent to sexual activity. Even when a sex worker has a right to say no or in other words, non-consensual intercourse will amount to rape even in the case of sex workers but not for married women cause here culture is given greater importance than consent.

This creates an outrage among the feminine society as numerous women get exploited by their husbands. Marriage being a custom does not entitle the husband the control over the wife. Consent is essential despite the relationship the victim shares with the rapist. Marital rape is still not considered taboo in the first place to be emphasized as a criminal offense, as society thinks that the wife is married to her husband, devotes herself completely, and is obliged by the actions of her husband. But marriage is a cultural institution that develops the idea of a man and woman living together rather not owning the rights of the other person.


The United Nations Committee on Elimination of Discrimination Against Women in the year 2013 recommended India criminalize marital rape. But the then UPA lead government failed to change the law. But now after becoming the opposition, its chief Rahul Gandhi, has tweeted in favor of striking down the immunity given by sec 375 for Marital Rape.

Not only the United Nations, even the J.S Verma Committee which was set up after the Nirbhaya case[iv],alsorecommended the criminalization of Marital Rape. Yet the then UPA government failed to strike down the immunity.

Similar to the UPA government, the NDA government that's currently in power, has also opposed the criminalization of Marital Rape in its Affidavit filed before the High court of Delhi. So now it's clear that trusting the legislature won't solve this problem of Marital Rape. It's high time the judiciary intervenes and criminalizes marital rape.

According to the UN Population Fund, more than 66 percent of the married women in India aged between 15 to 49 have either been forced or in some cases even been beaten for providing sex, irrespective of their socio-economic position. According to the International Men and Gender Equality Survey, 2011at least 20 percent of the husbands would have forced their spouse for sexual intercourse.


From the above data, it's clear that marital rape is still prevalentin many families. This kind of heinous crime is still not criminalized in India. The victim has no institution to approach, asthe concept of Marital rape is still not criminalized in India. This type ofutterly odious crime cannot be treated as domestic violence, as the severity of the crime equals rape and cannot be provided an exception, just because the victim is already married to the rapist.

It is stated that the phrase Culture over Consent should be emphasized and followed. Peoplethink that the concept of Marital Rape is against the institution of marriage. Even, our former Chief Justice of India, Ms. Dipak Misra“because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values,” wasquotedto Deccan Herald by Misra[v]. Statements like these overhold culture over humanity. But in many cases, the SC did not consider culture for justice. For instance, the SC in the case of Navtej Singh Johar v. Union of India[vi] made Sec.377 unconstitutional and allowed consensual sex between adults of the same sex. This was against the culture and yet the SC took a decision to respect human feelings and render justice for the Homosexuals.

Also, in the case of Jit Kumari Pangeni (Neupane) and Others v. Prime Ministers and Council of Ministers and Others[vii],The Nepal SC held that punishing marital rape differently from other rapes will amount to the breach of equal rights provision in the Interim constitution. Hence, even when it didn’t have the power to change sentencing terms, it directed the authorities to change the term of sentencing for marital rape equaling to that of a rape. This case proves the severity of marital rape.

Cases like this open up a gateway for the government to criminalizeMarital rape. When it recognizes Marital rape as a criminal offense for the victim below the age of 18, it is also required to consider rape for victims above the age of 18, as an entitlement of a relationship will not reduce the severity of rape and will still amount to a criminal offense. The immunization of marital rape which was originated from the colonial laws itself emanated the immunity. Then, it’s high time India takes the necessary steps to criminalize Marital rape.

[i]Crl.A. 227/2016 [ii]The Constitution of India 1949 [iii][2017] 10 SCC 800, AIR 2017 SC 4904 [iv]Mukesh v. State (NCT of Delhi) [(2017) 6 SCC 1 [v] [vi]AIR 2018 SC 4321; W. P. (Crl.) No. 76 of 2016; D. No. 14961/2016 [vii]Writ No. 064-0035 of the Year 2063 (Nepali Calendar)


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