Marital Rape- A Non-Criminalised Crime



Is Marital Status a symbol of depriving rights of a married woman?

Marital Rape is a very controversial concept over which opinion of people differs from one another. Analysing from the legal point of view, it is still considered as legal whereby today’s generation opposes it and demands the same to be criminalised due to its inhumane nature. Marital rape is referred to as any sexual act by a spouse committed against or without the consent of the other partner or by the use of threat, intimidation or in a condition where other partner is unable to consent.

This essay is an attempt to explain the need for criminalisation of marital rape in a twofold manner i.e. first part dealing with the description of how exception 2 to Section 375 of Indian Penal Code is unconstitutional leading to the inequality between a married and an unmarried woman and also distinguishing between rape and a marital rape. While the second part of the essay deals with the context of privacy of marital life in the way of criminalisation of marital rape, thus proving that this brutal act results in depriving the rights and status of a married woman.



India being one of the thirty-six countries that still haven’t criminalise marital rape[1], defines ‘rape’ under Section 375[2] of Indian Penal Code ,1860 which includes all forms of sexual assault involving non-consensual intercourse with a woman. However, exception 2 to section 375 exempt sexual intercourse by a man with his own wife when she is not being under 15 years of age to fall in the category of ‘rape’.

Constitutional Validity of Exception 2 to Section375 of Indian Penal Code:

The exception classifies the woman into two categories that is one as married and another that of unmarried. The unconstitutionality of the said exception can be determined as follows:

  • Violation of Article 14 of Indian constitution

The above classification does not have a rational relation to the object of classification and that’s why such classification of women is infringing the right to equality of a married woman and thus violating article 14[3]of Indian constitution. It seems to be an arbitrary action with no proper cause.

  • Violation of Article 21 of Indian constitution

By not criminalising marital rape, rights u/a 21 are also being violated as everyone has right to abstain from sexual intercourse and to be free from sexual act. Article 21 includes the right to health, privacy, dignity, safe living conditions, and safe environment. As the marital rape is violating the dignity and health of women, thus clearly proves it unconstitutional.[4]

It also violates the following rights:

  • Right to Good Health:

Marital rape beside physical harm, deteriorates a woman psychologically too as she has to live with the rapist all the time with a continuous fear of being raped again.

  • Right to Sexual Privacy:

The freedom of a woman to decide one’s own consensual adult relationships is infringed in case of marital rape. If a woman is married, it couldn’t be presumed that she no longer has the right to sexual privacy. It lies with her always and marital status is no barrier to it. Also, when a wife is raped by her husband against her will, it will amount to violation of her right to bodily self-determination.


  • Right to Live with Dignity:

Everyone has the right to live with human dignity and married women are no exception to it. Then by not taking into recognition the marital rape, it will not only violate the human dignity and honour but will also protect the husband from being punished while committing such a heinous offence.


Indian penal code specifies the punishment for rape under Section 376.While the marital rape is not considered an offence in India, resulting in the flaws of the provision that considers the rape as illegal if committed   by a stranger and the same as legal if committed by one’s husband.

Rape is a rape and that’s why, it is immaterial by whom the same has been committed. Even if it is committed by a stranger or one’s own husband, both results in same and therefore the culprit should be treated alike.[5]


More than 2/3rd of married women in India aged 15 to 49 claimed to have been beaten or forced into sex by their husbands. [6]

In 2011, a survey in India revealed that one in five has forced their wives to have sex.[7]

According to the latest National Health and Family Survey (NFHS-4) for 2015-16, 5.4% women have experienced marital rape, under this category.[8]


The Indian scenario before1860 did not consider woman as an independent legal entity rather she was recognised as a chattel of her husband. That’s why crimes like marital rape were very common at that time.

But today the scenario is different as the Indian penal code had been codified in1860 and people started getting aware about what a crime is and what is not.

By the 19th century, feminism led the women raise their voices against the violation of their individual rights. Consequently, the acts like Protection of Women from Domestic Violence Act 2005; Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013; POCSO Act 2012; Dowry Prohibition Act 1961etc were implemented.

In context to the objectives of the above-mentioned acts, it is quite clear that how much protection and security a woman is getting against any sort of violation of her rights and dignity. And when it comes to marital rape, the situation is similar as it was at the time of patriarchy. Husbands still consider their wives as their property by ignoring her will or consent. As per the above acts, state is interfering in the matters like dowry, domestic violence, sexual harassment etc but there arises no question of privacy. On the other hand, when marital rape is taken into consideration; the privacy to interfere in the marital life becomes an obstacle.


Firstly, India is a type of country where we don’t have speedy and effective redressal mechanism to provide optimum justice. A very few of the rape cases are reported and we can’t even imagine the situation where a woman alleges her own husband for rape. This is a fixed mindset and this kind of ideology is in the blood of patriarchal Indians that wife is subjected to will of her husband.

 Secondly, most of the women are still not that much educated and self-independent that they can take the risk of making such complaints.

Thirdly, it will be very difficult to prove the ‘consent’. Moreover, this provision can also be misused resulting in the derogation of the institution of marriage and family.


At it is to be established in our society that ‘Marital rape’ do exist, proper safeguards need to be implemented so that this provision cannot be misused and justice can be served. Education should be provided and poverty should be reduced. Above all, the patriarchal mindset of society needs to be changed in the form that ‘wife is not just a thing of pleasure, she is the need to complete the life of a husband and to give society its true meaning’.




The current scenario demands the criminalisation of marital rape. It is a high time where such a heinous offence needs to be stopped; otherwise the result will get ruined leading to loss of women’s dignity, honour and individuality, causing her the physical as well as psychological torture. The marital status of a woman cannot deprive her rights and if the marital rape is not criminalised now, then it will be considered that a man got license to rape once he gets married. Therefore, to change the mentality of the society and to decrease the cases of marital rape, the penal provisions must be enacted.





[2] Rape. -A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: —

(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.] STATE AMENDMENT

[3] Indian const. Art-14 Equality before law, The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

[4]The state of Karnataka v. krishnappa2000 CriLJ 1793: The Supreme Court held that “sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.


[5]As provided by the 172nd Law Commission Report to treat the forced sexual intercourse by a husband with his wife an offence and to delete § 376 A of Indian Penal Code.

[6] The United Nations Population Fund Survey,2000

[7]The International Men and Gender Equality Survey,2011

[8] National Family Health Survey (NFHS-4) 2015-16: India, Mumbai: IIPS

Name: Rushil Midha
Course: BBA.LLB , 3rd year
Institute: Geeta Institute of Law, Panipat
Topic: Marital Rape