RESEARCH PAPER: MARITAL RAPE: A SERIOUS OFFENCE HIDDEN BEHIND
CLOSED DOORS
GUIDE: MRS. KALPANA DEVI PROFESSOR CENTER FOR LEGAL STUDIES,
GITARATTAN INTERNATIONAL BUSINESS SCHOOL
NAME OF THE AUTHOR – GARV HARJAI
ENROLL NO. - 01619103520
CENTRE FOR LEGAL STUDIES
GITARATTAN INTERNATIONAL BUSINESS SCHOOL,
DELHI-110085
BATCH (2020 – 2025)
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“MARITAL RAPE: A SERIOUS OFFENCE HIDDEN BEHIND CLOSED DOORS”
-by Garv Harjai1
ABSTRACT
Marital rape is one of the most heinous crimes in India. Marital rape is not a lesser crime than rape;
rather, it is a different type of rape. Married women are the most common victims of marital rape.
It is one of the most serious dangers to gender equality in India. It is an example of a societal evil
that has been in India from ancient times and continues to wreak devastation on the country.
Marital rape has never been considered a problem in Indian society. For a multitude of reasons, it
is rarely opposed by anyone in Indian society. In this way, the Indian legislature is no different.
The Indian Constitution has charged the Indian legislature with the most difficult responsibility of
enacting laws for the country's safety, security, and development. However, the legislature seems
uninterested in ridding the country of the evil of marital rape. The Indian judiciary offers some
optimism in this area, but its hands are tied because writing laws is the prerogative of the
legislature, not the judiciary. In India, there are no effective laws against marital rape. Whatever
rules exist in India, they are insufficient to prevent something as heinous as marital rape. There is
a need to enact tough legislation to put a stop to marital rape in India.
Keywords: Marital Rape, India, Indian Society, Indian Legislature, Indian Executive, Indian
Judiciary, Indian Constitution
INTRODUCTION
The world needs to wake up right now, and laws need to be updated considering the changing
times and the fact that crime is getting worse every day. The time has come for society to wake up
and move forward in defending women's rights and assisting victims of marital rape in receiving
justice.
The term "marital rape" refers to rape committed by the victim's husband. The definition of rape
remains the same: sexual intercourse or sexual penetration without permission. As a result, proving
a lack of consent is a necessary component in proving rape. The burden of proving a lack of consent
frequently falls on the victim. In other cases, such as with minors, it is assumed that consent does
not exist because they are legally deemed to be incapable of agreeing to such sexual actions. On
the other hand, consent is assumed to exist in some situations. This preconception is frequently
present when the victim and perpetrator are married. In such cases, the concept of marital rape
becomes diametrically opposed.
1. Garv Harjai, studying BBALLB at Gitarattan International Business School, Rohini, Delhi.
2. Kumar Yadav, Dr. Raj and Da, Manish, Marital Rape in India: A Critical Study (May 16, 2021).
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MEANING OF RAPE AND MARITAL RAPE
The Indian Penal Code's Section 3753 defines rape as "a man entering anything other than his
penis into a woman's vagina, mouth, urethra, or anus, or if any other person is known to have
committed the crime of rape by applying his mouth to a woman." according to the Code of
Criminal Procedure4. The exemption clause 2 of Section 375, which specifies that when a
husband has sexual relations with his wife who is not under the age of 15, it is not considered a
rape, has also been applied to marital rape."
The age of consent has been raised to 18 years old because of the case "Independent Thought vs.
Union of India5." Because of this exclusionary provision, a husband who engages in sexual
activity with his wife after she becomes 18 is not criminally responsible for rape. This exclusion
provision shields husbands who rape their wives from prosecution. The term "marital rape" refers
to when a husband participates in sexual intercourse with his wife without her consent. It is a man's
flagrant and non-consensual sexual assault on his wife, which can result in serious physical and
emotional problems for the victim.
Rape is commonly perceived as an act committed by someone we do not know. The subject of rape
in marriage is rarely discussed. Even women find it difficult to comprehend the possibility that
their own husband may rape them. Marital rape is a mostly undetected crime against women.
Section 375 of the Indian Penal Code exempts such behavior from criminal liability. The holiness
of marriage has been questioned and contested in recent years, but the notion to punish marital
rape has always been rejected since it occurs within the socially recognized institution of marriage
and criminalizing it may interfere with its sacredness. For decades, men and women have utilized
this’ sacred' marital contract as a sexual pact, giving husbands implicit consent on behalf of their
female companions.
When it comes to domestic abuse, the only legal remedy for rape victims is "Section 498 of the
Indian Penal Code6" (IPC). While the IPC recognizes rapes that occur outside of marriage, it only
considers marital rape to be a cause of domestic violence, leaving victims with few possibilities
for restitution or recompense.
MARITAL RAPE IN INDIA
Indian law defines marital rape as any sexual act performed on a married woman without her
consent, whether that consent has been withheld or is missing. Given that it entails the violation
of a person's bodily autonomy within the constraints of a marriage, marital rape is a highly sensitive
and contentious topic in India.
3. Section 375 of the Indian Penal Code, 1860 (Act No. 45 of 1860)
4. Code of Criminal Procedure Act, 1973 (No.2 of 1974)
5. (2017) 10 SCC 800
6. Section 498 of the Indian Penal Code, 1860 (Act No. 45 of 1860)
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Although the constitution declares that rape is illegal, laws do not recognize marital rape with a
woman older than fifteen. We discuss how women's rights, such as the right to dignity and the right
to speak out, are violated, but when it comes to martial rape, all these rights are disregarded. The
criminalization of marital rape as a penal offence, which has been much discussed in recent years,
is still unresolved. Marriage is viewed in our society as giving consent to a husband for sexual
activities. It is allowed regardless of if a wife has not given her approval.
Should not it be criminalized as a rape, as per my views yes. Marital rape is still not a crime in
India because of the country's customs and beliefs, nonetheless. Any sexual act carried out during
a marriage, which is a religious event, is seen as legal. Even the notion that marital rape should be
considered a crime and punished turns aggressive. Countries exempt marital rape from the
criminalization of rape as a severe crime with associated penalties. The woman's husband, whom
she married in good faith, regularly forces sex on her without her consent to torture and harm her.
Women have a right to protection. The wife could become physically unwell at the notion of being
raped while still married.
Rape can be understood as a violent act done to a woman to violate her modesty. The Supreme
Court of India has called it a humiliation and the worst offence against human dignity. Rape entails
more than just physical violence; it also encompasses the victim's total ruin. Taking this into
account, a civilized society cannot accept the idea that a woman must have sex with her husband
without his consent.
A patriarchal society in which marriage is the foundation of society and women's voices are
silenced. Former Chief Justice of India Dipak Mishra claimed that marital rape should not be
declared a crime since it would lead to utter anarchy in households. Our country exists due to the
family platform, which promotes family values. Because of social norms and attitudes that
encourage such an environment, matrimonial rape cannot be considered a crime. The Indian
government argued that those who opposed husbands raping their wives were mindlessly
emulating Western cultures.
It is largely recognized in modern society that after marriage, a woman grants her husband her free
consent to sexual contact. According to Matthew Hale of England, a husband cannot be held
liable for raping his legitimate wife because the wife has given herself in this way to her husband
by their joint marriage contract and agreement, and she cannot take it back.
There is a lot of debate going on about it. The Delhi High Court announced a mixed verdict on
Wednesday over the country's decriminalization of marital rape. Justice Rajiv Shakdher
invalidated Exception 2 of Section 375 of the Indian Penal Code7, which decriminalized rape inside
marriage, but Justice C. Hari Shankar affirmed it. Section 375's Exception 2 states that "sexual
actions or sexual intercourse by a man with his own wife, the wife not being under the age of
fifteen, is not rape." The court delayed seven years to hear petitions to make marital rape a criminal.
7. Section 375 of the Indian Penal Code, 1860 (Act No. 45 of 1860)
8. https://www.legalserviceindia.com/legal/article-12958-breaking-the-silence-marital-rape-in-india
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In an affidavit submitted to the Delhi High Court, the union government claimed that a law
criminalizing marital rape could be used to harass husbands, making the absurd argument that if
all sexual acts between a husband and his own wife qualify as marital rape, the court will decide
whether they are or are not.
UNDER-REPORTING HIDES TRUE SCALE OF THE ISSUE
The NFHS survey warns against "under-reporting" because anecdotal evidence gathered by the
study indicates that approximately 9 out of 10 victims of intimate partner violence refuse to
disclose the violence or abuse, they suffer due to a variety of factors such as fear of stigma,
reprisals, and reliance on the spouse. According to the NFHS data collected to 2021, 82% of
married males and 13.7% of previous husbands were sexually aggressive with their wives, making
spousal sexual violence a major concern. It was also discovered that 90% of survivors of spousal
sexual violence did not take any action or seek help.
Regardless of the situation, marital rape is still considered a form of domestic abuse in India. As a
result, the only civil remedies available to a survivor are "protection orders, judicial separation,
and monetary compensation" under The Protection of Women from Domestic Violence Act of
200510.
The violation of a survivor's right to consent, bodily autonomy, and integrity goes ignored in this
atmosphere, relegating women to a position in which they cannot exercise their agency and equal
rights inside a marriage. Equality Now and Dignity Alliance International's report, Sexual
Violence in South Asia: Legal and Other Barriers to Justice for Survivors, discusses in detail
the protection gaps in rape laws and barriers to accessing justice that continue to lead to effective
denial of justice for all survivors of sexual violence in South Asia, including survivors of marital
rape.
LAWS IN INDIA
Rape offenders in India face harsh punishment under the law. Rape is punishable under Section
376 of the Indian Penal Code11. However, there are no explicit laws in place to address the
atrocity of marital rape. The sole statute in India that protects victims of marital rape is Section
375, Exception 2 of the Indian Penal Code. It specifies that if the husband has sexual relations
with his wife who is under the age of 15, he can be prosecuted for rape. However, the Supreme
Court of India, in its judgement in the case of Independent Thought v. Union of India12,
increased the age to 18 years. As a result, the law in India currently states that if a husband
engages in sexual intercourse with his minor wife, he can be penalized for rape, but a major wife
has no such remedy. As a result, victims of marital rape are only afforded limited protection
under Indian law. In India, there is no universal protection against the horror of marital rape.
9. https://www.equalitynow.org/news_and_insights/a-ruling-on-marital-rape-in-india-is-coming-up-heres-
why-you-should-be-watching-closely/ (May 4, 2023)
10. The Protection of Women from Domestic Violence Act, 2005 (Act No. 43 of 2005)
11. Section 376 of the Indian Penal Code, 1860 (Act No. 45 of 1860)
12. (2017) 10 SCC 800
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LEGAL STATUS OF THE WIFE RATIONALE
The immunities are also rooted in traditional attitudes about the status of women and the objective
of the "Rape" statute. Initially, the wife was seen as her husband's property. Rape legislation was
enacted to defend "masculine pride in the exclusive possession of a sexual item." As a result,
virginity and marital purity were treasured beliefs that were hoped to be maintained from the day-
to-day unprovoked, unannounced, and exceedingly harsh attack that, in turn, prompted retaliation.
Rape victims' reputations were always harmed. It damaged the chances of a single bride-to-be.
Forced intercourse without the agreement of the woman, on the other hand, was not deemed rape
in an average marriage when the parties had been intimate, because the male spouse would simply
be employing his property. The common law idea of oneness of person, which asserts that after
marriage, a wife's legal personality unites with her husband's, was like orthodox notions regarding
the position of the wife. Rape by a wife is logically impossible because a husband cannot rape
himself.
Most fields of law now reject these fictional legal conceptions that believed a female to be the
male's property. People nowadays regard marriage as a partnership in which both couples have
equal rights. Instead, then defending male interests in a woman's integrity, rape legislation may
now be viewed as preserving a woman's safety and freedom of choice. As a result, the husband's
rape exemption could be canceled at this time.
PROBLEM OF EVIDENCE
The exclusion has been supported on the grounds that establishing a rape between a husband and
wife is difficult, and the wife may file a complaint against the husband. While the existence of a
marriage implies agreement, this is insufficient to prevent a wife from pursuing a rape complaint
against her husband if she so desires. The law does not prohibit a woman from bringing a rape
charge against a man with whom she has had a sexual relationship; nevertheless, given the prior
relationship, permission could still be considered in such a circumstance.
Similarly, the argument that a devious wife might file a false complaint or use the threat of
prosecution to pressure her husband into agreeing to a favorable property settlement during a
divorce is unconvincing because it contradicts the fact that she can still file complaints against him
for crimes other than rape. Also, if a wife finds it difficult to prove a rape claim against her husband,
giving up the exemption will not be a potent instrument in the hands of a vengeful wife.
13. https://www.legalserviceindia.com/legal/article-12958-breaking-the-silence-marital-rape-in-india
14. https://www.legalservicesindia.com/article/2369/Marital-Rape
15. https://aishwaryasandeep.com/2021/07/05/marital-rape-and-rights-of-women/
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ROLE OF JUDICIARY IN INDIA
A new law against sexual assault was thought to be necessary. The former law that was in place
did not identify or consider the many types of sexual assault. In Sakshi v. Union of India16, the
Supreme Court acknowledged the shortcomings in the legislation pertaining to rape and
recommended that the legislature reform the law. Rape was redefined as the most horrible events
in 2013 after the criminal law amendment bill passed. The parliament attempted to broaden the
definition of rape and the public's view by adding oral and anal actions to the list of offenses that
qualify as rape.
In the court case Queen Empress v. Haree Mythee17, it was decided that if the wife is older than
15 years old, the rape legislation does not apply. Because the wife in this case was just 11 years
old, the husband was penalized.
The woman does not reside separately from the husband under the judicial separation, and being
subjected to sexual activity against her will does not constitute rape, according to the Kerala High
Court's ruling in Sree Kumar v. Pearly Karun18. As a result, it was claimed that although if the
husband was de facto guilty of carrying out or committing the act, he was not found guilty of
raping his wife.
CONCLUSION
Because women are still considered the husband's property and are totally at his disposal, Indian
law has clearly failed to appropriately protect them. To achieve equality for married women, the
issue of marital rape must be addressed. We investigated the feasibility of the arguments
considering family, marriage, and the role of women in society. We also demonstrated that none of
the reasons advanced in favor of making marital rape a criminal has any legal foundation.
Marital rape is now a recognized crime in several countries around the world, reversing a long-
standing tradition. Forced sex during a marriage is considered marital misconduct by Nepal's
Supreme Court.
Regrettably, India is lagging. There's no reason to believe that Indian families are immune to
marital rape. It is common in India's towns, villages, and cities. The only change is that we are no
longer focused on the issue. After years of inaction, the Indian Legislature must reactivate and
revise the Indian Penal Code.
16. AIR 2004 SC 3566, 2004 (2) ALD Cri 504
17. 9 (1890) 18 Cal 49
18. 1999 (2) ALT Cri 77, II (1999) DMC 174
19. G.V. Akshaya and M. Kannappan, “A Study on Marital Rape in the Indian Legal Scenario”, International
Journal of Pure and Applied Mathematics, Volume 119 No. 17 2018, 1089-1100
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2021).
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in-india
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coming-up-heres-why-you-should-be-watching-closely/ (May 4, 2023)
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6. G.V. Akshaya and M. Kannappan, “A Study on Marital Rape in the Indian Legal Scenario”,
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1100
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