Published on 9th March 2025
Authored By: Riya Kumari
Jamia Millia Islamia National University, New Delhi
INTRODUCTION
In simple words, marital rape refers to a situation where sexual intercourse between married couples is non-consensual and forcible. The lack of consent is the essential element but it doesn’t necessarily involve physical violence. Marital rape is criminalised in almost 150 countries across the world; still, many countries including India are remaining to do the same. The definition of rape is given in Section 375 if Indian Penal Code (IPC) and currently Section 63 of Bharatiya Nyaya Sanhita (BNS). When a man commits sexual intercourse with a woman forcefully, against her will, without her consent, by fraud or misrepresentation, coercion, or when she is intoxicated or is of unsound mind is referred to as rape. Exception 2 of this section says “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” [1]
LEGAL AND CONSTITUTIONAL PERSPECTIVES
In the landmark case of Independent Thought v. Union of India on 11 October, 2017[2], the petitioner challenged Exception 2 to Section 375 of IPC, which does not satisfy sexual intercourse between a man and his 15-18-year-old wife as rape. The petitioner argued that any non-consensual sexual intercourse with a minor, married or unmarried should be classified as rape. Exception 2 to Section 375 of IPC allowed a man to have sexual intercourse with his wife if she was over 15 years old. The petitioner argued that this exception was arbitrary, discriminatory, and violated Articles 15(3) and 21, as well as India’s obligations under international conventions against child sexual exploitation. The Union of India gave a counter argument which highlighted the occurrence of child marriages and the availability of legal remedies under Prohibition of Child Marriage Act (PCMA) and other laws. The case illustrated the gap between legislative intent and social reality, creating legal issues. This case also highlighted that Exception 2 to Section 375 violates the Article 15 by discriminating between married and unmarried women and on basis of age.
The demand for deletion of this exception was put forward in the 172nd Law Commission Report[3], 2000, but it was ignored on the ground that it may harm the institution of marriage and it will result in too much interference in the marital relationship between a husband and a wife. Justice J.S. Verma panel was constituted in 2013 after the heinous incident of Nirbhaya gang rape case in December 2012 to recommend quick trials in cases of sexual assault. This committee also suggested criminalisation of marital rape and the removal of the same from Section 375. The panel suggested that marriage should not be viewed as a never ending agreement to engage in sexual activities. It suggested that in cases of non-consensual sexual intercourse, the relationship between the victim and perpetrator has no value. Although, this argument was not agreed to by the then government and they said that it would violate the institution of marriage.
The NDA government submitted an affidavit in the Delhi High Court in response to a bunch of petitions which demanded criminalisation of marital rape. The affidavit said that it may lead to destabilization of institution of marriage and it will become an easy tool for a woman to harass their husband. The Section 498A of the Indian Penal Code (IPC) which deals with domestic violence to a woman by their husbands or in-laws is already being misused and false cases of domestic violence are being registered. There are various factors which should be effectively considered before criminalising marital rape in India such as illiteracy, lack of financial empowerment of the majority of women, mind-set of the society and so on.
PERSPECTIVE OF CRIMINAL JUSTICE
The investigation and prosecution in cases of marital rape because unlike stances of stranger rape, marital rape often takes place in private spaces, making it harder to collect evidences against the offender. The lack of physical injuries or witnesses further complicates proving that non-consensual sexual acts occurred. These difficulties contribute to underreporting and low conviction rates, which foster a sense of impunity for offenders.
Societal biases and stereotypes about marriage and sexual violence also affect how the criminal justice system handles marital rape cases. Victim-blaming attitudes and the belief that sexual access is a marital entitlement can lead to doubts, disbelief, or victim-shaming during investigations and legal proceedings. Survivors may find it challenging to have their experiences taken seriously, validated, or to access justice.
The judiciary plays a crucial role in tackling marital rape, as court decisions influence the legal framework and set important precedents. In recent years, Indian courts have begun to emphasize the importance of consent within marriage and have recognized that nonconsensual sex in marriage can be considered a crime. For example, in the Independent Thought v. Union of India case, the Supreme Court ruled that sexual intercourse with a minor wife constitutes rape under the Indian Penal Code. Such rulings reflect a growing understanding of married women’s rights and provide legal avenues for redress.
Due to biases and misconceptions, the criminal justice system still faces difficulties in addressing marital rape regardless of this much progress.
COMPARATIVE LEGAL ANALYSIS[4]
An increasing number of countries around the world are acknowledging marital rape as a serious human rights violation and are taking steps to make it a criminal offense. Nations in Europe, North America, and parts of Africa, such as the United States, Canada, the United Kingdom, France, Germany, Sweden, and South Africa, have implemented laws that explicitly criminalize marital rape. These laws eliminate legal protections like spousal immunity, treating marital rape as a form of sexual violence, and emphasize the necessity of consent in all intimate relationships. However, progress is uneven, and in regions like parts of Asia, the Middle East, and some African countries, marital rape is still not legally recognized as a crime due to cultural and societal barriers. This global shift reflects a growing understanding of individuals’ fundamental rights and the need for legal safeguards to prevent sexual violence within marriage.
European and North American countries have implemented laws recognizing marital rape as a criminal offence, treating it similarly to other forms of sexual violence. These legislative reforms have removed spousal immunity and exemptions that previously shielded perpetrators from judicial immunity. On the other hand, several countries in Asia lack explicit laws criminalising marital rape because cultural and societal norms often influence legal frameworks. In Africa, some countries like South Africa have adopted laws which criminalise marital rape while in other African nation; laws may still lack explicit provisions regarding criminalisation of marital rape.
In the context of Indian legal framework, Section 375(2) of the Indian Penal Code (IPC) provides an exemption to the offence of rape concerning sexual intercourse or sexual acts by a man with his wife, as long as she is not less than 18 years of age. This provision also excludes non-consensual sexual relationship between a husband and wife as from being considered as marital rape. This exemption has led to widespread outrage and concern among human rights activists and scholars due to its implications for women’s rights, bodily autonomy and gender equality within marital relationships.
CONCLUSION
Marital rape is a widespread but often overlooked form of intimate partner violence, deeply ingrained in cultural, legal, and societal complexities. This article explores the various dimensions of marital rape, including its legal treatment in India compared to global trends, as well as the societal myths and barriers that sustain its existence. In India, the legal approach to marital rape differs significantly from international standards. Under Section 375(2) of the Indian Penal Code, marital rape is not considered a crime unless the wife is below 18 years, which conflicts with global norms emphasizing the need for consent in marriages, regardless of marital status. This legal exemption reflects longstanding cultural norms and patriarchal systems that have historically limited women’s rights and autonomy within marriage. Consequently, India’s legal framework lags behind international practices in recognizing marital rape as a grave human rights violation.
Societal expectations play a major role in perpetuating marital rape. This system creates power imbalances that reinforce the idea that women must submit in marriage, contributing to the misconception that marriage automatically grants consent for sexual activity. Such cultural attitudes lead to victim-blaming, stigma, and underreporting, creating significant barriers to justice and support for survivors.
Globally, there has been progress in recognizing marital rape as a crime, with many countries updating their legal systems to reflect international human rights standards that emphasize the importance of consent and bodily autonomy within marriage. These reforms underscore the right to protection from sexual violence, regardless of marital status, and signal a shift toward respecting the dignity and autonomy of individuals in intimate relationships. However, challenges remain in overcoming legal, institutional, and cultural obstacles to effectively criminalize and address marital rape.
In India legal reforms are urgently needed to align with global standards, ensuring that marital rape is criminalized and that survivors have access to proper support. Legal and institutional systems must be strengthened to handle marital rape cases with sensitivity and provide comprehensive services. Additionally, cultural norms and societal attitudes must be changed through awareness campaigns, education, and advocacy to challenge misconceptions and promote respect, equality, and consent within marriages.
Addressing marital rape requires a holistic approach that extends beyond legal reforms to include a transformation in societal attitudes. Acknowledging marital rape as a human rights violation, advocating for legislative changes, challenging cultural norms, and creating a supportive environment for survivors are essential steps in addressing this pervasive form of intimate partner violence and safeguarding the rights and dignity of individuals within marriage.[5]
REFERENCES
[1] Marital rape (2025) Wikipedia. Available at: https://en.wikipedia.org/wiki/Marital_rape (Accessed: 12 January 2025).
[2] (No date) Independent thought vs Union of India on 11 October, 2017. Available at: https://indiankanoon.org/doc/87705010/ (Accessed: 12 January 2025).
[3] Law commission report no. 172- review of rape laws ,2000 (no date) latestlaws.com. Available at: https://www.latestlaws.com/library/law-commission-of-india-reports/law-commission-report-no-172-reviewof-rape-laws-2000/ (Accessed: 12 January 2025).
[4] Lawflu (2021) Comparative study: Marital rape in India and United States., LinkedIn. Available at: https://www.linkedin.com/pulse/comparative-study-marital-rape-india-united-states-lawflu- (Accessed: 12 January 2025).
[5] Kapoor, V. (2023) Marital rape : India’s legal labyrinth, iPleaders. Available at: https://blog.ipleaders.in/marital-rape-indias-legal-labyrinth/ (Accessed: 12 January 2025).
