What is Marital Rape?
Team SoOLEGAL 1 Aug 2023

What is Marital Rape?

Rape is defined as non-consensual sexual intercourse involving physical force, threats, or deception by the perpetrator. In India, the law recognizes rape as a criminal offense under section 375 and 376 of the Indian Penal Code (IPC) when committed by an outsider. However, the law does not explicitly address marital rape, which refers to non-consensual sexual intercourse by a spouse with his wife through force, threat, or coercion.

The Indian society has been governed by a patriarchal system, which traditionally considers women as the property of their husbands or guardians. Consequently, rape was seen as a violation against the husband or guardian rather than an offense against the woman. This ideology has influenced the government to neglect marital rape, as it is shielded under the concept of conjugal rights, implying that a wife is obligated to fulfill her husband's sexual desires without regard for her own consent or autonomy. This perception has undermined women's rights to equality and justice.

Many countries have recognized the seriousness of marital rape by enacting laws to criminalize it or by removing previous exemptions that allowed it to go unpunished. By decriminalizing marital rape, our state is failing in its duty to ensure gender equality, which includes protecting individuals from crime and abuse.

Today, the recognition of marital rape as a violation of human rights is evident, as numerous countries have established laws to address it. However, in India, despite the introduction of various laws and institutions aimed at addressing violence against women within the home, such as laws against female infanticide and domestic violence, marital rape has not gained recognition as a crime in the eyes of policymakers. Instead, it remains hidden behind the supposed sanctity of marriage.

Marital Rape and India

According to the Indian Penal Code, there are certain cases where a husband can be criminally prosecuted for marital rape:

·        When the wife is between 12 – 15 years of age, the offense is punishable with imprisonment for up to 2 years or a fine, or both.

·        When the wife is below 12 years of age, the offense is punishable with imprisonment for a term ranging from 7 years to life, along with a fine.

·        Rape of a judicially separated wife is punishable with imprisonment for up to 2 years and a fine.

In 2005, the Protection of Women from Domestic Violence Act, 2005, was enacted, recognizing marital rape as a form of domestic violence. Under this Act, a woman can seek legal protection and separation from her husband if she experiences marital rape. Marital rape is not only a violation of a woman's body but also causes emotional harm, damaging her love and trust, leading to feelings of instability and fear. Unfortunately, the laws in place to protect victims of marital rape are inadequate and insufficient, and the measures taken are unsatisfactory.

The underlying assumption of these laws is that consent to marriage implies consent to engage in sexual activity. However, consenting to engage in sexual activity does not mean agreeing to endure sexual violence. Violence instills fear and insecurity, forcing the woman into unwanted sexual acts. It is crucial to distinguish between consent and non-consent in criminal law.

It is disheartening that a woman can protect her right to life and freedom but not her body within her marriage. The definition of rape under Section 375 of the IPC should be revised. Currently, the only recourse for women is Section 498-A of the IPC, which deals with cruelty, to protect themselves from "unreasonable sexual conduct by the husband." However, there is no clear standard or interpretation by the courts regarding what constitutes 'unnatural' or 'perversion' in intimate spousal relations. Is demanding sex unreasonably tantamount to cruelty? Shouldn't consent be an essential requirement? Is marriage a license for rape? These questions remain unanswered as both the judiciary and the legislative bodies remain silent on the matter.

Case Laws

In the case of State of Maharashtra v. Madhkar Narayan, the Supreme Court ruled that every woman is entitled to her sexual privacy and that no one has the right to violate her privacy whenever he wants. The Supreme Court extended the right to privacy in the workplace in the landmark decision of Vishakha v. State of Rajasthan. Similarly, a right to privacy to engage in a sexual relationship even while married. As a result of decriminalising rape within a marriage, the marital exception teaching violates a wedded lady's right to privacy and is thus prohibited.

The right to life under Article 21 of the Constitution was highlighted in the case of Francis Corallie Muin v. Union Territory of Delhi. In this case, Article 21 incorporates the right to live with human dignity and all that entails, to be specific, the minimum necessities of life, such as adequate nutrition, clothing, and shelter over one's head, as well as facilities for reading, writing, and expressing oneself in various forms, freely moving about and mixing and mingling with fellow human beings. The right to live with human dignity is a basic component of the right to life that perceives a person's independence.


Marital rape remains partially legal in India, despite being a serious crime against women that demands the government's attention. Women who experience marital rape often suffer not only immediate harm but also endure long-lasting physical and emotional consequences. The unique aspect of marital rape is that the victim has to live with the perpetrator every day, making it even more traumatic for the woman. Given the severe consequences of marital rape, urgent action is required to criminalize this offense.

India has seen positive legal changes for women in general, but to fully address the issue of marital rape, both legal and societal changes are necessary. Criminalizing marital rape and transforming societal attitudes towards women within marriage are crucial steps that need to be taken. While the Protection of Women from Domestic Violence Act addresses certain forms of violence, it does not explicitly address marital rape. However, the enactment of a specific law against domestic violence has opened the door for legislation criminalizing marital rape. This shift in the state's attitude, which used to avoid intervening in family matters, is encouraging progress.

Thus, although there are still loopholes and challenges, India's recognition of domestic violence as a serious issue paves the way for further steps towards criminalizing marital rape. It indicates a positive change in societal perspectives and demonstrates a growing commitment to protect women's rights within marriages.

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Pravez zaidi  22 Aug 2023 1:05pm
Is marital rape legal in India?

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