Sunday, 23 January 2022

Marital Rape in India: An Undefined Crime

 Marital Rape in India: An Undefined Crime

By Nemi Bhavsar

Despite the fact that India has celebrated its 75th year of independence, women in the country are still neglected and are not genuinely free and independent. Rape is an offense against women that violates her dignity and self-respect, and it lowers the woman to the position of an object used primarily for sexual enjoyment when it occurs within the four walls of a married house. In India, marriage is regarded as a sacred social institution. The legal sanctions associated to a husband and wife's sexual interaction are one of the most distinctive elements of their relationship. But, marriage has now become a license to rape. How can a husband be allowed to rape his wife? Rape, is Rape. How can the institution of marriage be termed sacrosanct if women are subjected to physical, mental, and emotional abuse with no recourse.

Marital rape- An Understanding

Marriage is a legally sanctioned contract between a man and woman, which is a legally recognized relationship. Sexual intercourse between husband and wife is legal. Due to the legality of sex, husbands gain the right to force their wife's to have sex with them, which can be the reason for marital rape. Although the legal definitions vary, marital rape can be defined as any unwanted sexual intercourse or penetration by force, threat of force, or without the wife's consent.

In proper perception, when couples in a marriage cohabit, there is no rape because there is presumed matrimonial consent. Despite an increasing number of cases of marital rape in our country, marital rape is not defined in any statute or law. There is mention of the Right to Equality in Indian Constitution but women face infringement in their right in cases of marital rape. In India, marital rape exists de facto but not de jure. While in other countries either the legislature has criminalized marital rape, or the judiciary has played an active role in recognizing it as an offence, in India however, the judiciary seems to be operating at cross-purposes.

Different types of Marital Rape

There are three kinds of marital rape that are recognized by legal scholars. These are as follows:

  • Battering rape:

In battering rape, women experience both physical and sexual violence in the relationship and they experience this violence in various ways. Some are assaulted during the sexual violence, or the rape may follow a physically violent episode where the husband wants to make up and coerces his wife to have sex against her will. The majority of marital rape victims fall under this category.


  • Force-only rape:

In this type of rape, husbands use only the amount of force necessary to coerce their wives; battering may not be characteristic of these relationships. The assaults are typically after the woman has refused for sexual intercourse.


  • Obsessive rape:

In this type of rape women experience what has been considered as brutal, aggressive or compulsive rape. These assaults include cruelty and pertinacious sexual acts and are over and over again bodily violent.

Indian Legislation on Rape

Section 375 of IPC deals with rape. However Exception 2 to section 375 exempts a person that a person can have sexual activity together with his wife, without her consent, if she isn't under the age of eighteen. Originally, the age of consent was fifteen but it was raised to eighteen by the Supreme Court of India in the judgment of Independent Thought vs. Union of India in 2017. In this context, bench of justices Madan B Lokur and Deepak Gupta observed: "Human rights of a girl child are very much alive and kicking whether she is married or not and deserve recognition and acceptance". However, the Supreme Court refrained from dealing with marital rape aged above eighteen.

Is the wife a property to be used without consent?

Rape is the only crime where the victim turns to be accused. As defined under the Indian Penal Code, a man is said to commit rape if he has any sexual intercourse with a woman against her consent or with a consent obtained by fraud, misrepresentation, or coercion. There rises a question that whether a person who is married has sexual intercourse with his wife falls under the definition of rape?

There are two options: one is "No," which everyone knows, and the other is "Yes," if it is done without her permission. When compared to the possibility "No," the possibility "Yes" has more grounds against it. The marriage ceremony, as everyone is aware, has its roots in all eras of history. In fact, the world has gone through a period of such upheaval, with marriage as its foundation. Women have always been deemed the weaker sex and have been denied full rights.

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