INTRODUCTION
Rape is a forceful, non-consensual and coercive sexual act committed against a natural person. Historically seen as mere uncontrolled desire, we now recognise rape as a troubling manifestation of power dynamics and humiliation of the victim. Marital rape or spousal rape means indulging in sexual intercourse with one’s spouse without consent. The absence of consent is an essential element and need not include physical violence.[1] Most sexual violence in India occurs within marriages, but it is estimated that only about 10 per cent of the victims of marital rape report spousal sexual abuse.[2] While many countries across the world have criminalised marital rape, India remains among the thirty-six nations.[3] It remains exempt under Section 375 of the Indian Penal Code (IPC). A survey reported that 29.3% of ever-married women aged 18-49 had experienced spousal violence, which includes physical or sexual violence by their husbands, highlighting the grave nature of the problem.[4]
GENDER BIAS AT PLAY
This juridical exception is due to ancient and patriarchal ideologies of marriage being an irrevocable bargain. These bargains award the sexual rights of the husband and instil the wife with the coercive obligation of succumbing to the need for the gratification of the husband. Despite the legal recognition of women’s rights through comprehensive legislation addressing domestic violence and sexual abuse within the workplace, significant gaps remain in the broader framework of gender justice in India. The continued persistence of this exemption highlights the troubling predicament of women’s rights within the sacrosanct institution of marriage.
It reflects the State’s complicated role in both protecting and preserving women’s interests in this sphere. Indian laws have a variety of penal laws defending and safeguarding women’s rights. The IPC states the definition of rape but excludes sexual intercourse by a husband with his wife on the condition that she is over 18 years old.[5] This has been justified based on marriage providing implicit consent to a sexual relationship.
While marital rape is not directly recognised as a crime, Indian law provides partial protection through many statutory provisions, such as the Protection of Women from Domestic Violence Act [6], which recognises sexual abuse as a form of domestic violence but does not criminalise marital rape and Section 498A of the IPC, which criminalises cruelty against a wife, including sexual cruelty, but does not explicitly treat or term it as rape.[7]
India, which is making strides towards development in almost all fields of society, has yet to take a decisive move towards addressing this infringement of the rights of half of the country’s population. India stands with an action contradictory to around 100 countries that have criminalised marital rape, including the UK, the US, Canada, and South Africa. International bodies like the United Nations and CEDAW (Convention on the Elimination of All Forms of Discrimination against Women) advocate for its criminalisation.[8]
As a signatory to CEDAW and the Universal Declaration of Human Rights, India must uphold gender equality. The continued exemption contradicts these commitments. Despite India’s position as the world’s fifth-largest economy, the country continues to underperform on most indicators relating to gender equality and gender dynamics.
CAUSES OF MARITAL RAPE
The traditional perception of marriage as an institution where wives are expected to be sexually available to their husbands negates the idea of consent and autonomy in marital relationships, leading to the acknowledgement of marital rape as a crime. Even if marital rape were criminalised, in the current scenario, it would have an underwhelming rate of reporting by women due to fear of social ostracisation, family pressures to maintain marital harmony and economic dependence on husbands.
IMPACT OF MARITAL RAPE
Marital rape not only dehumanises the victim but also has severe psychological and physical consequences for victims, including Post-Traumatic Stress Disorder (PTSD), in which the survivors often suffer from flashbacks, anxiety and depression, physical injuries like bruising, internal injuries, and sexually transmitted infections and reproductive health issues. Survivors of both physical and sexual IPV have recounted suffering from adverse mental health outcomes.
Countries that criminalise marital rape, such as the United States, also report marital rape victims suffering from adverse mental health outcomes such as PTSD and depression. Women raped by their spouses exhibit even higher rates of anger, depression, and suicidal feelings than those assaulted by strangers. Marital rape also impacts help-seeking behaviour among survivors, which may vary across cultures.[9]
JUDICIAL PRECEDENTS
The impact of marital rape is so severe that the need to criminalise it has been a frequently discussed topic in the intellectual milieu and the judicial framework of India. In this context, the landmark case of Independent Thought v. Union of India marked a significant step forward.[10] In Independent Thought v. Union of India, the Supreme Court of India ruled that sexual intercourse with a girl between 15 and 18 years of age, even if she is married, is rape, effectively striking down the marital rape exception in Exception 2 to Section 375 of the Indian Penal Code. [11] [12]
In the same case, Madan B Lokur, J, has stated.
The exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child. It has no rational nexus with any unclear objective sought to be achieved. The artificial distinction is arbitrarily discriminatory and is not in the best interest of the girl child. The artificial distinction is contrary to the philosophy and ethos of Article 15(3)[13] of the Constitution, Article 21 of the Constitution, and our commitments to international conventions. It is also contrary to the philosophy behind some statutes, the bodily integrity of the girl child and her reproductive choice.
In RIT Foundation v. Union of India, the Delhi High Court case directly challenged the marital rape exception.[14] The Division Bench delivered a split verdict, with Justice Rajiv Shakdher striking down Exception 2 to Section 375 as unconstitutional, while Justice C. Hari Shankar upheld its validity.[15]
In the Case of Nimeshbhai Bharatbhai Desai v. State of Gujarat, the Gujarat High Court observed that marital rape is a “disgraceful offence” that has scarred the trust in the institution of marriage.[16] While noting that it couldn’t be considered an offence due to a legal exemption, the court expressed that such acts undermine the fundamental rights of women.
Multiple cases have also been filed challenging the marital rape exemption, demonstrating growing legal momentum toward reform.
ARGUMENTS AGAINST CRIMINALISATION OF MARITAL RAPE
Though a vast section of society has identified the need for reform in laws related to marital rape, there remains a sizable section of people who are voracious proponents of not criminalising the heinous act. Opponents argue that criminalising marital rape could lead to false allegations.[17] However, all laws, including those on domestic violence and sexual harassment, are susceptible to misuse, but that does not negate their necessity. Another argument often raised is that such laws interfere with private relationships.
However, the state already intervenes in cases of domestic violence, dowry harassment, and child abuse, emphasising that marital privacy cannot be a shield for violence. Some fear that criminalising marital rape could lead to an increase in divorces.[18] However, this argument assumes that maintaining a marriage is more important than a woman’s right to bodily autonomy and dignity.
SUGGESTED REFORMS
The way forward to protecting women’s bodily autonomy and recognising their rights involves multifaceted reforms that must be undertaken in collaboration by the government and society. The foundation stone of these reforms would be the legal amendments involving repealing the marital rape exemption in Section 375 IPC, strengthening existing domestic violence laws to recognise spousal rape as a punishable offence explicitly and establishing fast-track courts for marital rape cases to ensure justice.
An integral part of the reform campaign should involve efforts to change the rudimentary mindset of the people by conducting awareness campaigns on consent and marital rights and integrating gender-sensitive education into school curricula, and training law enforcement agencies to handle marital rape cases sensitively.
Various Governmental and non-governmental organisations could come forward to set up helplines and crisis centres for victims, expanding access to legal aid and counselling for survivors, as well as encouraging community-based initiatives to change societal perceptions about marital rape, bringing about much-needed psychological care and respite for the victims.
CONCLUSION
The law and public debate on marital rape in India demonstrate inherent patriarchal values that offer greater significance to marriage over individual rights. Marriage may, however, not issue a license for sexual violence. Criminalizing marital rape is not just a legal necessity but also a moral necessity to uphold women’s rights and dignity. While concerns about abuse and excesses of the judiciary are legitimate, these must not be allowed to become obstacles to doing justice to the victims. The struggle for establishing marital rape as a crime is a struggle for equality, justice, and dignity. The time to act has come. Marriage must be centred on mutual respect and consent, not coercion and domination.
Author(s) Name: Ananya Sharma (Dr Ram Manohar Lohiya National Law University (RMLNLU), Lucknow)
References:
[1] Bhagyashikha Saptarshi, ‘Marital Rape and Law’ (Manupatra) < https://articles.manupatra.com/article-details/Marital-Rape-and-Law > accessed 13 March 2025
[2] Nandini Agarwal et al, ‘Marital rape and its impact on the mental health of women in India: A systematic review’ (2023) 3 PLOS Global Public Health e0000601 <https://journals.plos.org/globalpublichealth/article?id=10.1371/journal.pgph.0000601> accessed 13 March 2025
[3] Mira Patel, ‘A history of the movement to criminalise marital rape across the world’ (The Indian Express, 17 January 2022) < https://indianexpress.com/article/research/a-history-of-the-movement-to-criminalise-marital-rape-across-the-world-7753164/ > accessed 14 March 2025
[4] Ministry of Health and Family Welfare, National Family Health Survey (NFHS-5) 2019–21 (2022) < https://dhsprogram.com/pubs/pdf/FR375/FR375.pdf > accessed 13 March 2025
[5] Indian Penal Code 1860, s 375
[6] Protection of Women from Domestic Violence Act 2005
[7] Indian Penal Code 1860, s 498A
[8] Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13
[9] Agarwal (n 2)
[10]Independent Thought v Union of India (2017) 10 SCC 800
[11] IPC (n 5)
[12] ibid
[13] Constitution of India, art 15(3)
[14] RIT Foundation v Union of India 2022 SCC OnLine Del 1404
[15] IPC (n 5)
[16] Nimeshbhai Bharatbhai Desai v State of Gujarat 2018 SCC OnLine Guj 732.
[17] Justice J.S. Verma Committee, Report of the Committee on Amendments to Criminal Law (January 2013) <https://adrindia.org/sites/default/files/Justice_Verma_Amendmenttocriminallaw_Jan2013.pdf> accessed 13 March 2025
[18]Press Information Bureau, Clarification on Marital Rape — PIB Release (30 August 2018) <https://archive.pib.gov.in/documents/rlink/2018/aug/p201883101.pdf> accessed 13 March 2025
