Marital Rape: A Non-Criminalized Crime In India

Marital Rape: A Non-Criminalized Crime In India


Marital Rape: A Non-Criminalized Crime In


Marital rape is defined as sexual intercourse conducted by one spouse without the consent of the other. Women are more likely to be affected. There are laws in India that protect women from sexual assault, rape, and domestic violence, but not from marital rape. There are many countries that have criminalised marital rape, including the United States, the United Kingdom, and others, but India has yet to do so.
Despite the increased acceptance of various Penal laws in India, marital rape has increased in the last few decades. There is a need for a unique law on marital assault in India, which should also be recognised by global standards on this specific issue. Ladies have the option to fight for insurance, but her own better half, whom she married with full conviction, tries to harm and torment her by having forceful sex without her consent, which eventually ruins her well-being and prosperity. In the current circumstances, there is no avocation or pertinence of the thought of all conjugal exclusion.
India is now the seventh-largest country on the planet, and the rate at which crime rates are rising is deeply troubling and humiliating for a flourishing, multi-social, vast, and common nation like India. Marital rape is not only the most pressing issue in the field of women's rights right now, but it also violates several established agreements at the same time. Someone correctly stated that a country's development and improvement can be assessed by looking at the gender position and regard that it provides for its women.
The researcher may want to give out the extent of marital rape in this paper, as well as an investigation into why it hasn't been legitimised at this point and why it should be legalised in India.
When it comes to India's circumstances, the possibility of marital rape has consistently been in the spotlight. The laws in India have significantly reduced assault, rape, and sexual maltreatment, but have turned a blind eye to the concept of marital rape. Not that marital rape does not exist in India, or that its reality is insignificant, but the central government clearly asserts that it would violate the benefits of the family framework and act as a solid hit against the foundation of marriage. They also claimed that if the case is given legal standing, the spouses will be harassed. Marital rape is generally regarded as the act of initiating sex with one's life partner without the other mate agreeing to do so. Marital rape has been condemned in many advanced countries, and thus it has the same legal consequences and legal situation as assault on another person.
Everyone on the planet has an opinion on whether marital rape should be punished or simply accepted as a normal part of marriage as a large organisation. The question in this case is whether marital rape is clearly prohibited by the provisions of the Indian Constitution and the Indian Penal Code, or whether the provisions of the Indian Constitution and the Indian Penal Code deny its legality.
In the second half of the twentieth century, the possibility of marital rape sparked worldwide concern and force. To clear the air, international bodies began investigating the possibility of marital rape and, as a result, stowed savagery against wedded ladies. In this way, global contracts and laws emerged, demonstrating marital rape to be invalid and void, despite the fact that a few nations actually follow it as an essential part of the establishment of marriage.
Marital rape was legal and socially sanctioned in old India on the grounds that a life partner was qualified for the right to have sex with his mate. In this particular case, it's a bit of a man's world. In India, marital rape is firmly based on non-existent, at times interpretative stanzas in the Indian Constitution or the Indian Penal Code, as well as the differing interpretations of Courts.
However, the central government cannot be blamed for a particularly heinous and grisly demonstration against women that is still in place; it is the extremely male-centric and male-ruled Indian culture that we live in. The very society allows its men to commit such atrocities and get away with it at the end of the day. Marital rape is a form of domestic violence in and of itself. It is a method of exerting intense control over another person's musings, thoughts, body, and psyche. It violates a person's right to privacy and the right to live an honourable life.


In India, the following is the current state of marital rape:

Rape is defined in Section 375 of the Indian Penal Code (IPC), which includes all types of rape, including non-consensual intercourse with a woman.


The non-criminalization of marital rape in India is an exception to Section 375's Exception 2. In any case, Exception 2 to Section 375 exempts rape in sexual intercourse by a man with his wife if she is over the age of 15.


In India, the concept of marital rape is an example of what we call "implied consent." Marriage between a man and a woman implies that both have agreed to sex and that it cannot be anything else.

Status of marital rape in other countries:-


1. United State of America

Marital or spousal rape is a crime in all fifty states of the United States of America. However, not all states in the United States of America view marital rape and rape in the same way. Some states, such as Ohio, Michigan, and Nevada, have a different attitude toward them. But, in any case, marital rape is a crime in some form or another. It is not legal in any state under the current laws.


In Maryland, for example, two people who have separated due to judicial separation or divorce are complete strangers to one another. Any coerced sexual act between the two will be treated the same as rape. This section of US law is very similar to that of India. The same rule applies in the Indian legal system. However, if two spouses live together and one of them coerces, threatens, or uses force on the other without the consent of the other spouse, a valid prosecution can occur.


A similar situation exists in Mississippi. Only if the rapist and victim are married and living together at the time of the incident, and the rapist performs penetration against the victim's will, can a prosecution be brought. However, this law would not apply if the victim is unable to control their behaviour because they are under the influence of drugs or narcotics, or if they are exposed to any other substance that dulls their senses and presence of mind.


Marriage can only be used as a defence in Nevada if there is no threat or force. When the victim is subjected to any form of force or threat, the defence of marriage is rendered ineffective.


In Oklahoma, however, a person cannot charge their spouse with rape if they were forced to submit while under the influence of narcotics and drugs.

The laws in the United States differ by state. In some places, all forms of marital rape are considered illegal by law, while in others, the influence of drugs and narcotics, as well as other factors, has been overlooked.


2. United Kingdom

The Sexual Offences Act, 2003 governs all types of sexual offences in the United Kingdom. Marital rape is a crime in the United Kingdom as well. Section 1 of the same book discusses rape. Rape is committed when the accused intentionally inserts his penis into the vagina, anus, or mouth of another person without their consent. It makes no difference whether the victim lives with the accused, knows the accused, or is or was married to the accused. What is important is the element of consent. If the victim does not consent to the penetration, it is considered rape.


R v R is a seminal case in this regard. In this case, the House of Lords ruled that it is legal under English law for a man to rape his own wife. The defendant, the husband, claimed that he could rape his wife because the contract of marriage gave her irrevocable consent. As a result, the House of Lords and the Court of Appeal both ruled that there is no exception for marital rape under English law.



As one can deduct from the preceding words, there are several sections of the Indian Penal Code that can be used to protect a woman from marital rape. When ideas like Marital Rape are not taken seriously in a marriage, several sections of the IPC are violated. In response to the counter-arguments, the concept of marital rape taints the concept of marriage because it is a woman's own husband who forces her into sexual encounters and in whom she has faith to protect her. This is more traumatic than being raped by a complete stranger.
As can be seen, the country of England has made significant progress in accepting marital rape as a flaw and enacting laws to address it. The United States of America is not far behind, having banned marital rape in a few states.                    

Marital Rape: Against Legal and Constitutional Rights

The British period is responsible for the non-criminalized nature of marital rape. A wedded lady was not regarded as an autonomous legitimate substance when the IPC was drafted in the 1860s. The conjugal exemption for the IPC's definition of assault was drafted in accordance with Victorian man-centric standards that did not regard people as equals, did not allow wedded ladies to claim property, and combined the characters of a couple under the "Precept of Coverture."

Violation of Article 14-

Marital rape violates Article 14 of the Indian constitution's right to uniformity.
The exception divides women into two classes based on their marital status and protects men from activities directed at their spouses.
As a result, the Exception allows for the exploitation of married people for reasons other than their conjugal status, while protecting unmarried women from similar demonstrations.

Against the spirit of IPC Section 375-

The purpose of Section 375 of the IPC is to protect women and rebuff those who participate in the uncaring movement of assault.
In any case, exempting spouses from discipline runs counter to that goal, as the consequences of assault are the same whether a lady is married or unmarried.
Furthermore, wedded women may believe that it is more difficult to escape dangerous situations at home because they are legally and financially bound to their spouse

Violation of Article 21-

According to the Supreme Court's inventive interpretation, rights under Article 21 include, among other things, the rights to well-being, security, respect, safe everyday environments, and a safe climate.
The Supreme Court ruled in State of Karnataka v. Krishnappa[1] that sexual savagery, apart from being a dehumanising act, is an unlawful violation of a female's right to security and sacredness.
In a similar decision, it was determined that non-consensual sex amounts to physical and sexual brutality.
In Suchita Srivastava v. Chandigarh Administration, the Supreme Court compared the option to settle on sexual movement decisions with Article 21 of the Constitution's rights to individual freedom, protection, poise, and real respectability.
The Supreme Court recognised the right to security as a fundamental right in Justice K.S. Puttuswamy (Retd.) v. Association of India
The right to protection includes "decisional security reflected by the ability to make personal choices primarily involving one's sexual or procreative nature and choices regarding private relations."
In this series of decisions, the Supreme Court has interpreted the right to abstain from sexual activity for all women, regardless of their marital status, as a fundamental right guaranteed by Article 21 of the Constitution.
Despite Justice J.S. Verma's panel's recommendation to make marital rape a crime, there is inconsistency.


Four years after the Supreme Court referred to the Justice J.S. Verma committee's recommendation to make marital rape a crime, Indian courts continue to take opposing views on marital rape, citing decisions from courts around the world that "a rapist remains a rapist and marriage with the victim does not convert him into a non-rapist."

Courts' recent responses to allegations of marital rape have been contradictory. When the Kerala High Court upheld marital rape as a valid ground for divorce, a court in Maharashtra granted anticipatory bail to a man, concluding that forcible sex with his wife was not a "illegal thing," despite the fact that she claimed it paralysed her.


In the case of Independent Thought vs. Union of India, the Supreme Court refused to consider marital rape while examining an exception to Section 375 of the Indian Penal Code, which allows a man to force sex on his wife if she is over the age of 15. However, in its decision declaring that "sexual intercourse with a girl under the age of 18 is rape regardless of whether she is married or not," the Supreme Court emphasised that the legislative immunity granted to marital rape stemmed from the "outdated notion that a wife is nothing more than a subservient chattel of her husband."


In the case of Independent Thought vs. Union of India, the Supreme Court refused to consider marital rape while examining an exception to Section 375 of the Indian Penal Code, which allows a man to force sex on his wife if she is over the age of 15. However, in its decision declaring that "sexual intercourse with a girl under the age of 18 is rape regardless of whether she is married or not," the Supreme Court emphasised that the legislative immunity granted to marital rape stemmed from the "outdated notion that a wife is nothing more than a subservient chattel of her husband."


Similarly, the Gujarat High Court ruled that "a law that does not distinguish between married and unmarried people" is unconstitutional.


Despite a slew of Supreme Court decisions upholding women's bodily integrity and privacy rights under article 21, legislative amnesty for marital rape remains on the books.



In a country where a woman is assaulted on a regular basis and the likelihood of an Indian wedded lady experiencing sexual violence is multiple times higher, the need for active interest in approving marital rape is relevant. Despite the fact that the Justice Verma Committee and the 42nd Law Commission Report have advocated for the criminalization of marital rape in the recent past, the main relief now available are the common cures outlined in the Domestic Violence Act of 2005.


There is an urgent need for the legal administration to recognise marital rape as a crime under the Indian Penal Code, particularly now that there is a flood of homegrown and sexual brutality bodies of evidence against ladies as a result of the pandemic-caused lockdown.


The abolition of Exception 2 of Section 375, as well as the punishment for marital rape comparable to that recommended under Section 376, would result in an all-encompassing advancement of criminal legal executive in our country.


Regardless of the perpetrator's personality or the age of the victim, the fact that it was an assault remains constant. A lady who is assaulted by a stranger carries the memory of a terrible incident with her; on the other hand, a lady who is assaulted by her own significant other lives and needs to lay down with her attacker. It is past time that Indian women and their basic liberties were not overlooked, especially by the legal system, which has pledged to protect each individual's fundamental rights.
Taking into account the laws of other countries in comparison to the Indian nation, India is currently far behind in creating an exclusive law for MARITAL RAPE. Until a new law is enacted, the provisions of the Indian Penal Code and the Indian Constitution may be invoked as a defence. However, as new things are discovered every day and the human mind is constantly evolving, every law must evolve to keep up with the times. As a result, until a new law is enacted, the existing provisions can be used. Following a thorough investigation, a new law for Marital Rape may be enacted, or relevant sections of the IPC or the Domestic Violence Act may be added.
Countries such as the United Kingdom have taken appropriate steps to recognise this social evil and are constantly enacting new laws to combat this type of atrocity against women. However, there have been many counter-arguments in this line of thought, such as the fact that reducing marital rape would be an attack on the institution of marriage and thus would be constantly misapplied. This is why the researcher suggests that rather than putting a law in place haphazardly, the law-making authorities take the time to analyse and scrutinise the consequences and results. Without a doubt, marital rape violates a woman's right to dignity and well-being, and thus a law should be enacted in order for a progressive country to thrive.
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