Criminalization Of Marital Rape

Marital rape

No One Deserves To Be Raped.

Rape Is Never The Victim’s Fault.

Rape is the most outrageous crime committed against women. It has both physical and psychological consequences. The atrocious act of treating a woman like a chattel, using her body to satisfy one’s sexual desires without her implicit or expressed consent is not only violative of human rights but shameful for the society as a whole.

We have stringent laws in our legal system to guard the women from atrocities such as rape and award severest punishment to its perpetrators. But in reality, the rate of its commission is on the ascent.  


If Rape is akin to a tree, the Marital rape is one of its branches. Marital rape is the term used to describe sexual acts committed without a wife’s consent and/or against her will by the woman’s husband. He may use physical force, threats of force to her or another person, or implied harm based on prior assaults, causing the woman to fear that physical force will be used if she resists.  

The fundamental element of marital rape is the relationship of husband and wife between the man and woman. Akin to rape, marital rape does not prioritize consent of the woman and there is use of force by the husband for cohabitation.

The society deems rape as the loathsome crime committed against humanity but the law presumes that the body of a woman belongs to her husband after marriage. It deems the wife incapable of making choices about her sexual desires. Rape laws do not safeguard married women in cases their spouses/husbands forcefully cohabit. Marital rape has not been accorded a significant issue in the eyes of law by the Indian legal system.

Married women who fall prey to the abuse of sexual violence by their husband have no place to seek asylum, feel vulnerable to the societal and family pressure and cannot file an FIR because law is not cognizant of marital rape as a crime. Thus, victims of marital rape are afflicted, bear the injustice silently and cannot seek any remedy.


The can be several causes behind commission of marital rape namely sexual perversion of husband; desire to affirm superiority of men over women; petty household issues; woman’s demand for equal status in conjugal relationship and so forth.

The main reason boils down to perpetual gender inequality existing in the society. It is another facet of our patriarchal and male-dominated system where women either wedded or un-wedded, do not have equal rights. It is another weapon in the hands of man to abuse and enslave women.

One of the reasons could be the role assigned to married women. The role as defined is of pati-vratastri meaning pure, dutiful and faithful. She is expected to obey the commands of her husband without any resistance. Physical relation between spouses has been deemed imperative as wife’s duty towards her husband. She needs to be subordinate to his whims and fancies.

Reliance for monetary purposes over her spouse is also the cause that women surrender themselves physically. But the substantial or major cause is absence of legal provisions beholding marital rape as an offence; which urges the man to proceed with the same conduct and leaves the wife with no cure.


Marital rape is a menace that gnaws at the roots of the marriage that is accorded a sanctimonious position in Indian society. It is disheartening and disappointing to realize that in comparison to other countries, marital rape is still not an offence. Neither the Indian Penal Code, 1860 nor any other specialized legislation deems marital rape its justified position.

Despite the humiliating and degrading experience a woman has to suffer, legislators have yet not realized the significance of deeming marital rape an offence, do not yet find it befitting to amend existing penal Acts or enact a new legislation catering to the safety and well being of a married women w.r.t cohabitation.


Section 375 of IPC defines rape. It lists acts which shall fall under offence of rape; it also states the conditions, which upon fulfillment will bring defined acts fall in the purview of rape. But the definition is not cognizant of forceful sexual intercourse by a husband with his spouse as rape.

One of the provisions (sixthly of section 375) states that sexual intercourse by a man with a girl under 18 years of age is rape, either with or without her consent. But, in the same section, it is provided that (as per Exception attached to Section 375), sexual intercourse by the husband with his own wife and wife not being under 15 years of age is not considered as rape.

Hence, a married girl aged 15 or above cannot complain if her husband indulges in a non-consensual sexual intercourse but if she is married and below 15, she can accuse him of raping her.

The loophole in the Indian legal system is evident where it provides negligible protection to a married girl over the age of 15 against her husband’s sexual perversion.

Furthermore, it guards a married girl under 15 from her husband’s forced sexual acts only because of her tender age and not because it recognizes it as marital rape.

Thus, the Indian Penal Code gives negligible recognition to marital rape. Even the Criminal Law Amendment Act, 2013 did not make any provision regarding marital rape.

Indian Penal Code, 1860, as amended by the Criminal Law (Amendment) Act No. 13 of 2013 Section 375, Exception 2 states:

  • Sexual intercourse or sexual acts by a man with his wife, the wife not being under 15 years of age, is not rape.
  • Under the Protection of Women from Domestic Violence Act No. 43, passed in 2005, women in India have the right to claim civil remedies for domestic violence, but there are no criminal penalties for marital rape where the wife is over 15 years old.
  • Although India’s domestic violence law of 2005 gives women the option to bring a civil case for marital rape, India continues to exempt marital rape from its criminal law.


Law presumes that in a marriage, the wife has consented to be subordinate to her husband’s wishes including sexual intercourse which she cannot resist or defy. She is treated as a chattel by her husband.

Legislators need to be rationale and expedite in order to stop this atrocity named marital rape. If there is no legal provision, it will be impossible to curb this menace. Victims feel helpless and can only turn to Judicial system as the last resort. The Judicial system, in our country has certain leeway which can be utilized to label marital rape as a crime liable for severe punishment.

It is need of the hour to create specific legal provisions to curb this outrageous conduct of husbands against their wives. Marital rape is a menace and the victims are hapless women who have no place or door to knock upon for seeking justice and protection. In such times, she can only approach the venerated doors of the Apex court or the other courts in the hierarchy and Judiciary is the last resort for her. Judiciary in our country has certain leeway and they can lay down the guidelines for the legislature but it cannot on its own accord make laws or implement them for the benefit of the married women.

But Judiciary is not a law making body; this is the duty of the legislature. Judiciary can only review the law, but cannot create new provisions; it can only guide legislature to a certain extent but cannot command or direct them with precision. It can work as a torchbearer but not lead in the making and drafting of legal provisions.

Hence, it becomes mandatory for the legislature and the law commission of India to consider the changing reality, draft legal provisions with due diligence w.r.t. marital rape and safeguard hapless married women from forced sexual atrocities of their husbands. Also, as the citizens, it is our duty to criticize and condemn men who exhibit such behavior against their spouses and not shun afflicted women in the name of family or societal prestige and honor.

Right to Equality enshrined in Article 14 of the Indian Constitution will be rendered as dead letter if women of our country will be unsafe in their own body, possess no right over their body and will have negligible option of exercising her own choices in matters where sexual relation in a marital bond in concernCriminalization Of Marital Rapeed.