Rape is defined as non-consensual intercourse with a woman in section 375 of
the Indian Penal Code in our Indian constitution. It involves all form of sexual
assault done to a women but it has two exceptions.
A medical procedure or an intervention shall not constitute a
Sexual intercourse or sexual acts by a man with his wife, the wife not being
under the age of 15 years is not rape.
The main issue is with the second exception of section 375 which can be clearly
stated as marital rape. As per the current law, a wife is presumed to deliver
perpetual consent to have sex with her husband after entering into marital
relations. The concept of marital rape in India is the epitome of what we call
an implied consent
This marital rape is recognized as a criminal offence in
almost every country but India is still one of the thirty six countries who have
not criminalized marital rape. As per National Crime Records Bureau [NCRB]
report 2020 around 35,331 cases were reported against women and majority of
crime against women were registered under 'cruelty by husband or his relatives'
which is around 30.2%. an analysis of National Family Health Survey [NFHS]
2015-16 data indicates that an estimated 99.1% of sexual violence cases go
unreported and that the average Indian women is 17 times more likely to face
sexual violence from her husband than from others.
Marital rape also violates article 14 of the Indian Constitution which ensures
that the state shall not deny to any person equality before the law within the
territory of India. Although Indian constitution guarantees equality to all,
Indian criminal law discriminates between unmarried and married women who are
raped by their own husband. The exception creates two classes of women based on
their marital status and immunizes men for raping their wives.
Marital rape also violates article 21 of our Indian constitution which includes
the right to health, privacy, dignity, save living conditions and save
environment among others and therefore forced sexual intercourse is a violation
of the fundamental right under article 21.
In the recent cases Supreme Court has
explicitly recognized in article 21 a right to make choices in a intimate
relations. In justice J.S.Puttuswamy [retd.] v. Union of India,
Supreme Court recognized the right to privacy as the fundamental right of all
citizens and held that right to privacy includes:
Decisional privacy reflected
by an ability to make intimate decisions primarily consisting of one's sexual or
procreative nature and decisions in respect of intimate relations.
does not distinguish between right of married and unmarried women and there is
no contrary judgment stating that stating that the right to privacy is lost by
marital associations. Thus, the Supreme Court had recognized right to abstain
from sexual activities for all women as fundamental right given under article 21
of our Indian Constitution.
This exception also defeats the spirit of article 375 of IPC which is made to
protect women and to punish who engage in the inhumane activity of rape.
However, exempting women from punishment is entirely contradictory as the
consequences of rape are same whether a woman is married or unmarried. Moreover
conditions of married women are even worse as most of the women financially
depended on their husband and it's very difficult to escape such abusive
In Dilip Pandey & Ors. V. state of Chhattisgarh
, the Chhattisgarh high
court discharged a man of the offense of marital rape after observing that
sexual intercourse or any sexual acts by a husband with his legally wedded wife
is not rape even if it was by force or against her and this judgment was found
atrocious by many of us.
The united Nations Declaration on the elimination of violence against women as
any act of gender based violence that results in, or is likely to result in,
sexual or mental harm or suffering to women, including threats of such acts,
coercion or arbitrary deprivation of liberty whether occurring in private or
In 2013 the UN Committee on Elimination of Discrimination against Women [CEDAW]
recommended that Indian government should criminalize marital rape. The JS Verma
committee which was formed after nationwide protest over December 16 2012 gang
rape case also recommended the same that marital rape should be criminalized as
by removing this exception of law as women will be safer from abusive spouses,
can receive the help needed to recover from marital rape and can save themselves
from domestic violence and sexual abuse but standing committee of parliament
replied that this will develop anarchy and Indian family system will come in
There are some arguments which are against the marital law such as there is
already a remedy given as an offence under section 498a of IPC which talks about
cruelty against women and domestic violence act, also it would be very
challenging to set up a criteria for marital rape and if laws are made to
criminalize marital rape there would be high chances of misuse and harassment
Indian laws should now recognize husband and wives as separate and independent
legal identities and it is a high time that the legislature should take proper
steps and bring marital rape within the preview of rape laws. Indian
jurisprudence should understand the atrocious nature and eliminates the second
exception of article 375 that is sexual intercourse or sexual acts by a man with
his wife, the wife not being under the age of 15 years is not rape.
Written By: Payal Bhagchandani,
Semester-1, BA.LLB [Hons.] - Jagran Lakecity
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