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Martial Rape — Culture Over Consent

By Garima Agarwal and Ishita Sethi

Trigger Warning: Rape, Marital rape.

While the legislature recognises and punishes crimes taking place on the street – murder, rape; the crime happening inside the bedroom goes unnoticed and unpunished. In India marital rape, not only remains decriminalised, but is indicative of an even larger problem. That the crime is not even seen as one. This article analyses whether the Indian legislature and judiciary are progressing or if they remain stuck in the age-old view of marriage and its sanctity.

Marital Rape involves forceful and non-consensual sexual activity between spouses where the victim is physically and sexually abused by their spouse. Rape, as defined in the Indian Penal Code (“IPC”) under Section 375, is“sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud at a time when she has been intoxicated or duped, or is of unsound mental health and in any case, if she is under 16 years of age except sexual intercourse by a man with his wife, the wife not being under fifteen years of age”. 

The Indian law holds an anachronistic view on conjugal relationships, where it is believed that a wife must submit to all the needs and desires of her husband in order to maintain the ‘sanctity of their marriage’.The government feels that criminalising marital rape would “destabilise the institution of marriage” and allow for the possibility of false allegations used to harass the husband for personal or economic gain. The government remains wary of false rape accusations that might put innocent husbands in jail. In India, it is presumed that post -marriage,it is the duty of the wife to keep her husband satisfied in bed and to succumb to all his needs and desires.

The judicial system holds a patriarchal view towards marital rape. It overlooks the need for criminalising marital rape in order to save the sanctity of the institution of marriage. In the 1890 case of Queen Empress v. Haree Mythee, the defendant raped his wife of 11 years old, leading to her death. The Calcutta High court had only announced punishment to the husband because the wife was 11 years old. Had she been over the age of 15, the rape law wouldn’t have applied. In Sreekumar And Anr. vs Pearly Karun, 1999, the wife had alleged that she was forced to have sex with her husband against her will. However, the Kerala High court believed that since the wife and husband were not under a decree of separation, there was no crime. The ideological approach taken towards these judgements is problematic as marital rape is seen differently from the criminal act of rape.

During the 1880s, when the IPC was being drafted, married women were not considered independent legal entities. Wives were regarded as their husband’s chattel – an item of property other than land. As a result, they lacked many of the rights that are now guaranteed to them as independent legal entities, such as the ability to file a complaint against another under their own name. Exception 2 to Section 375, which exempts husbands from being charged with rape for actions committed against their wives, is heavily influenced by, and derived from the already existing doctrine of merging the identity of a woman and her husband. Indian laws still date back to the 1700s, when Matthew Hale of England had declared that “the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract.”

Another rather archaic justification for not criminalising Marital Rape comes from William Blackstone in 1753 when he defended the common law doctrine of coverture, which prevented a woman from suing on her own behalf without her husband’s consent. Blackstone contended that by being married, the husband and wife are one person in law; that is, the very existence of the woman is suspended during the marriage. There exists one entity, that is the married couple, and thereby, a wife not giving her consent is irrelevant.

This reality remained unchanged until a landmark court judgement of the United Kingdom in 1991. A man who identified himself only as “R” had been convicted of attempting to rape his wife and challenged the decision under Hale and Archbold’s provision for marital rape exemption. The case eventually reached the House of Lords, which unanimously rejected it, holding: “Nowadays it cannot seriously be claimed that by marriage a wife submits to sexual intimacy in all circumstances,”. Under the Sexual Offences Act 2003, rape within marriage is explicitly illegal.

A statute was later codified as part of the Criminal Justice and Public Order Act of 1994 by amending the Sexual Offences Act in accordance with R v R. The judgement was supported by the Law Commission.

Violation of Fundamental Rights

Marital Rape is a fundamental violation of the rights of women. Exception 2 to section 375 of the IPC is a clear violation and infringement of a women’s right under Articles 14 and 21 of the Indian Constitution. Article 14 of the Indian Constitution states that “The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India, Protection prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.” Exception 2 discriminates between married and unmarried women, clearly giving more protection to the latter. Exception 2 immunises the husbands by excusing them for their actions and victimising the married women leaving them with no legal recourse. The purpose of Section 375 is to protect women against sexual abuse from men. Enacting exception 2 at the same time deviates from the whole purpose of this section because on one hand it penalises strangers for engaging in this activity but at the same time provides a leeway to husbands, allowing them to sexually abuse their wives as they know no law would exempt them from attempting this inhuman activity of rape. Furthermore, it is also imperative to understand that many of the victims are housewives and are financially dependent on their husbands, so it is difficult for them to escape an abusive atmosphere as they might not have an alternative livelihood option available for them or their kids. Hence, it could be said that Exception 2 violates the right to equality enshrined in Article 14 insofar as it discriminates against married women by denying them equal protection from rape and sexual harassment. 

Article 21, on the other hand, states that “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” Article 21 bestows on all citizens the “right to life, meaning, every individual has the right to live a healthy and dignified life”. However, Exception 2 contradicts the ideals of Art 21 by denying the wives, who have been victims of marital rape, the right to a healthy and dignified life by failing to deter the husband from engaging in forceful sexual activity which traumatises the wife leading to physical and mental trauma. 

What remains most crucial is that when a woman is being sexually assualted, her right to privacy is being violated. Earlier, the right to privacy of an individual did not extend to autonomy over one’s body and that is why it was convenient for the men to “own” their wives.. However, the Court first in the case of  T. Sareetha V. T. Venkata Subbaih, and later in K.S. Puttaswamy v Union of India have extended the right to privacy to one’s body and held that the right to her privacy is not lost by marital association. The Puttaswamy judgement also recognised the right to make intimate relations under Article 21.  Forced sexual cohabitation is a violation of that fundamental right. The above rulings do not distinguish between the rights of married women and unmarried women and there is no contrary ruling stating that the individual’s right to privacy is lost by marital association. Thus, the Supreme Court has recognized the right to abstain from sexual activity for all women, irrespective of their marital status, as a fundamental right conferred by Article 21 of the Constitution.”


Indian Law offers women legal remedies against sexual assault by a stranger, but not by their husband, failing to acknowledge the fact that the latter is in prolonged, close proximity resulting in a higher likelihood of them being the assaulter. The criminal justice system conveniently modifies the definition of rape by not aknowledging and criminalising the husband’s violent and non-consensual act of intercourse with his wife. The judiciary seems to be completely oblivious to the fact that rape is possible in marriage and marriage cannot be taken as a defence to save the rapist from the crime. This prima facie violates Articles 14 and 21 of the Indian Constitution. This non – criminalised crime is a major concern and the Judiciary must take concrete steps to protect women from sexual assault and violence. However, on a positive note, in recent years, there has been a shift in judicial acceptance of sexual intercourse as a right to be free of unwanted sexual activity protected in these broader rights to life and liberty. In State of Karnataka v. Krishnappa, the Supreme Court held that “sexual violence is not only a dehumanizing act, but it is an unlawful invasion of the right to privacy and sanctity of a woman.” The court ruled that non-consensual sexual conduct amounts to physical and sexual abuse. In the case of Nimesh Bhai Bharatbhai Desai vs. State of Gujarat, the Gujarat High Court held that husbands are to be reminded that being married to a woman doesn’t necessarily give you a license to rape your wife. The husband does not own his wife’s body, nor her consent just because they are married. The court issued a landmark decision in the Independent Thought V Union of India where it recognised rape within marriage and for the first time articulated the rights of married girls. The court held that in order to empower women, we need to enact more laws that are favourable to them and in doing so it is imperative to eliminate those provisions that encourage difference of power between men and women.

Garima Agarwal is a 4th-year undergraduate student pursuing BBA.LLB (Hons.) from Jindal Global Law School. 

Ishita Sethi is a 1st-year undergraduate student pursuing B Com. LLB (Hons.) from Jindal Global Law School.

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