Criminalizing Marital Rapes In India

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Criminalizing Marital Rapes In India

Written By:- Shreem Thite


The term “marital rape” refers to rape committed by the victim’s husband.  The definition of rape remains the same: when there is no consent, sexual intercourse or sexual penetration ensues. As a result, proving the lack of consent is a necessary component of proving the crime of rape. The burden of proof for lack of consent is frequently placed on the victim. In some cases, such as with juveniles, consent is assumed to be absent since they are legally presumed incapable of consenting to such sexual actions. On the other side, there are some situations in which consent is assumed. When the victim and the perpetrator are married, this inference is common. In such cases, the concept of marital rape becomes diametrically opposed.

While various countries in the world recognize unwanted sexual contact between a husband and a wife as a crime, India is one of the thirty-six countries that has yet to prosecute marital rape where even though countries recognize rape as a crime, they exempt the victim and perpetrator from the law’s application if the victim and perpetrator are married. This is commonly referred to as the “marital rape exception clause.” 

Rape under Indian Penal Code

Section 375 of the Indian Penal Code (‘IPC’) makes rape a criminal offence. It is a broad term that encompasses both sexual intercourse and other forms of sexual penetration, such as oral sex, as rape. In Exception 2, however, this clause does not apply to sexual intercourse or sexual actions between a husband and wife. As a result, if her spouse rapes her, she has no legal recourse under Indian law.

The reason for the exclusion of sexual intercourse or sexual activities between a man and his wife from the definition of rape is not stated in Exception 2 of Section 375 of the IPC (‘exception clause’). Because the section’s main focus is consent, it’s probable that an unassailable presumption of consent applies when the victim and the perpetrator are married. However, considering the sanctity that married relationships have gained in our society, it is also possible that this was a legislative decision to exclude the functioning of this provision from marital relationships. This is presumably because there are portions of the IPC that exempt spouses from its application.

While the law does not criminalize marital rape, it does criminalize a specific type of marital rape under Section 376B of IPC namely non-consensual sexual intercourse while the wife and husband are living apart due to legal separation or otherwise. This clause states that consent is presumed in section 375 of the IPC, which is not the case here because the husband and wife do not live together. Living together gives rise to the assumption that the wife has given her assent to the husband’s sexual intercourse.

Violation of rights vis-à-vis Marital Rapes

It infringes on the fundamental rights provided by the Indian Constitution. The judiciary has vastly broadened the ambit of Article 21 of the Constitution, which was also read to include the right to live in dignity as part of its scope. Marital rape clearly infringes on a woman’s right to dignity, and the marital rape exception provided under Section 375 of the IPC is thus in violation of Article 21 of the Constitution. The right to equality inherent in Article 14 of the Indian constitution is violated by marital rape. The Exception categorizes women into two groups based on their marital status and prevents men from committing crimes against their spouses. As a result of the Exception, married women might be victimized only because of their marital status, although unmarried women are protected from the same crimes.

The Indian Penal Code, Section 375, was created to protect women and punish those who commit the heinous act of rape. Exempting husbands from a penalty, on the other hand, goes against that idea, because the consequences for rape are the same whether or not a woman is married.

The law-making bodies must dwell on these glaring flaws in order to enact suitable legislation. This is because the hegemonic idea of not touching the marital institution reinforces the regressive principle that refusing sex flies against the paradigm of a wife’s obligations and fails to understand that marital rape is a kind of sexual abuse at its most extreme. It is a betrayal of a relationship’s trust and sanctity, as well as a breach of fundamental ideals of women’s bodily integrity, among other things.


In view of the foregoing arguments, it is asserted that it is past time for Parliament to recognize marital rape as an offence under the IPC, with the same sentence as that specified for rape committed outside of a married institution. The fact that the parties are married should not mitigate the severity of the violation; otherwise, it would be equivalent to passing off the idea that if a woman consents to be married, she also consents to be raped by her husband. 

Articles 14 and 21 of the Constitution are violated by Exception 2 to Section 375 of the IPC, as evidenced by the aforementioned conclusions. It is high time for Indian law to recognize the insidiousness of this provision and strike it down.

Shreem Thite

About the Author

Shreem Thite

4th year

B.A.LLB (Hons.)

Hidayatullah National Law University, Raipur, C.G.

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