The Indian women’s movement has faced significant struggles in addressing the issue of marital rape, largely due to a lack of support for recognizing rape within the institution of marriage. From a legal perspective, this issue is particularly complex, as the legal framework surrounding marriage has traditionally been built upon the notion of consummation. Under various legal provisions, a husband is granted the right to demand the restitution of conjugal rights, which effectively allows him to seek state intervention to gain sexual access to his wife if she refuses to engage in sexual relations. Despite the variations in the personal laws governing different religious communities in India, most of these laws consistently affirm a man’s right to his wife’s body. In arranged marriages, which are common in India, a woman’s consent is often overlooked or assumed to be implicit. In such a societal context, promoting awareness about the necessity of mutual consent for sexual relations between married partners is a daunting task.[1]
The newly drafted Bharatiya Nyaya Sanhita, which replaces the Indian Penal Code (IPC), addresses the offence of rape in Section 63, [2]mirroring the language of Section 375 of the IPC. [3]However, Exception 2 of Section 63 explicitly states that sexual intercourse or sexual acts between a man and his wife, provided the wife is above the age of 18, does not constitute rape. This legal exemption reflects deep-rooted patriarchal norms and poses a substantial barrier to recognizing marital rape as a crime, perpetuating the notion that marriage inherently grants a man unfettered sexual rights over his wife. To challenge this legal and societal framework, there is a critical need for a broad-based movement that emphasizes the importance of consent within marriage and redefines the understanding of sexual rights in the marital relationship. The Protection of Women from Domestic Violence Act, 2005 does not consider marital rape as a crime but does consider it as a form of domestic violence. Under this Act, if a woman has undergone marital rape, she can go to the court and obtain judicial separation from her husband.
The core issue with this framework is that, even when all the elements of rape are present, a husband is legally shielded from any liability for non-consensual sex. This contradicts the goals of women’s empowerment and welfare in our country. At present, the Supreme Court of India acknowledges marital rape only in the context of abortion. The Medical Termination of Pregnancy Act categorizes marital rape as a form of rape within its provisions.[4]
Many scholars argue that gender inequality in India is perpetuated through male dominance, entrenched patriarchy, and the systemic restrictions imposed on women. This gender imbalance manifests through societal norms where men often wield significant power over decisions related to women’s marriage and sexuality. Traditional gender roles and rigid family structures are deeply ingrained in Indian society, which continues to uphold the joint family system and the expectation that women occupy subordinate positions within the household hierarchy. Despite the gradual shift toward more liberal and egalitarian values, marital rape remains an insidious form of domestic violence that is largely ignored.
One of the prevailing stereotypes in Indian society is that rape cannot occur within the bounds of marriage. This belief is so widespread that many women do not recognize that they have been raped, and even when they do, their trauma is often trivialized. Sexual intimacy between married couples is commonly viewed as an automatic right, minimizing the severity of rape within marriage. Additionally, there exists a strong culture of silence surrounding family matters, including domestic violence. Society tends to resist external interference in these issues, treating them as private and not to be discussed publicly. This resistance to external intervention leads to apathetic responses from the criminal justice system, further marginalizing victims of marital rape.
When survivors of marital rape seek justice, they often face revictimization due to the pervasive shame and stigma surrounding marital violence. They are not only battling their abusers but also confronting a society that views their plight as a threat to the patriarchal family structure. This societal reluctance to acknowledge marital rape has delayed significant scholarly inquiry into the issue. Only within the last two decades have social scientists begun to meaningfully study marital rape in India, as it continues to be perceived as a challenge to traditional family values. However, this growing body of research is critical in shifting societal attitudes and promoting legal reforms that protect the rights and dignity of married women.
The primary question that marital rape brings into discussion is whether this exemption violates a married women’s right to equality by not providing her with the same kind of legal protection that is provided to unmarried women. Secondly, it questions whether a woman is denied her personal and sexual autonomy and right to self-expression once she enters into a contract of marriage. This would also contribute to gender inequality between men and women within the institution of marriage. Another aspect that the case of marital rape analyses will be the wife’s right to privacy.[5]
To answer the first question, we have to consider both sides of the Marital rape argument. One side says that marriage itself gives consent to having sexual intercourse, while others say that rape should be considered rape irrespective of the relationship between a man and woman, and consent is and should play a major part in the rape, or marital rape.
The first contention which considers marriage to be synonymous to consent for sexual acts is erroneous and based on the ancient notion which considered women as mere properties of men. Rape was historically viewed as a crime against a man’s property rather than harm to the woman herself. The damage was seen as a violation against her father or husband, rather than her person. A legal doctrine once held that upon marriage, a woman’s legal rights were absorbed into those of her husband. Virginity was treated as the property to be preserved in a woman. Consequently, a woman was regarded as the property of her father before marriage and of her husband afterward. This belief fostered the assumption that a man could not rape his wife, as she was considered his possession. Marital rape is prevalent in cases of forced marriages. Rape laws were originally created to protect the property interests men had in women, rather than to safeguard women themselves.[6]
It degrades women’s rights including the right to privacy as well as right to bodily autonomy. On delving deeper we can find that the argument happens to be even more flawed since women who are raped by strangers suffer from lesser trauma than marital rape victims. A rape assessment published in a magazine revealed that victims of marital rape often endure more severe psychological effects compared to those raped by strangers. The study found that women who were raped by their husbands or intimate partners were significantly more likely to experience sexual dysfunction than those assaulted by dates or strangers. Additionally, they were more prone to a loss of self-respect. The assertion that people define their own identities in terms of ongoing social relationships serves as the foundation for this prediction. Marriage plays a unique role in our culture because it serves as a ‘master status/which’, people use to structure and define how they view others. Therefore, the act of marital rape may significantly affect the relationship between the perpetrator and the victim. It raises concerns about the victim’s capacity to trust her husband, issues of dominance and authority, and the definition of marital sex, to name a few. Additionally, the victim is likely to continue to interact with the offender regularly and experience repeated, frequently harsh mistreatment.[7]
Now to address the second question i.e. whether a women is denied of her personal and sexual autonomy and right to self-expression once she enters into a contract of marriage. The current reasoning behind not criminlaizing marital rape odes answer this question positively. The act of marriage is considered as implied consent for sexual intercourse. In other words not criminalising marital rape is equivalent to disregarding the consent of married women.
In the landmark case of Bodhisathwa Gautam v. Subhra Chakraborty, the Supreme Court of India unequivocally declared that rape is a violation of fundamental human rights, which include the inherent right to live with dignity. This recognition extends beyond the act of sexual violence itself, emphasizing that the right to dignity is a core component of every individual’s existence. The Court highlighted that marriage does not strip a woman of her fundamental rights, including her right to live with dignity, privacy, and control over her own body. These rights are intrinsic to her as a human being and cannot be subordinated to the institution of marriage.
This perspective challenges the traditional legal framework, particularly Exception 2 under Section 375 of the Indian Penal Code, which exempts non-consensual sexual intercourse by a husband with his wife from being classified as rape. Critics argue that this exception not only infringes upon a woman’s right to privacy but also violates her constitutional right to lead a healthy and dignified life, as guaranteed by Articles 14 and 21 of the Constitution of India.
Article 14 ensures the right to equality before the law, and Article 21 guarantees the right to life and personal liberty, which includes the right to live with dignity. By allowing marital rape to remain legally exempt, the law effectively denies married women the full protection of these rights. The compelled sexual intercourse by a spouse, which is often coerced or violent, has severe consequences on the physical and mental well-being of the wife. This forced subjugation not only strips away her autonomy but also causes lasting harm to her physical and psychological health, further undermining her dignity and sense of self-worth.[8]
Finally, to analyse the aspect of the wife’s right to privacy. The argument here revolves around the conflict between the privacy of marriage and an individual’s personal autonomy and fundamental rights within that marriage, specifically in relation to a woman’s right to refuse sexual intercourse.
In the case of Farhan v State and Anr advocate Karuna Nundy states the following. The impugned Exception, she submits, is unconstitutional as it “places the ‘institution of marriage’ as an object above the privacy and other Article 21 rights of an ‘individual in the marriage’ “. Protection of the ‘institution of marriage’, submits Ms. Nundy, cannot be a legitimate object to sustain the impugned Exception, such a contention having been specifically rejected by the Supreme Court in para 92 of the report in Independent Thought. The institution of marriage cannot, according to her, be accorded pre-eminence over the Article 21 rights of the wife. Even on facts, she submits, a marriage could be damaged or destroyed by rape, but not by a complaint of rape. Ms. Nundy relies on para 192 of the report in Joseph Shine6 to contend that privacy accorded to the ‘institution’ of marriage cannot override the privacy and other Article 21 rights of the individuals involved [9]
By denying women the right to refuse sexual intercourse, the law curtails their ability to make autonomous decisions regarding their bodies, thus limiting their freedom of sexual expression and behaviour. There is an emphasis on marital privacy over individual privacy within marriage. Gender violence is often treated as a matter concerning family honour; privacy must not be a cover for concealing or asserting patriarchal mindsets. [10]
Marital rape and lack of sexual autonomy are all part of much more significant issues such as patriarchy and gender discrimination. Changing legislations in order to criminalize marital rape would no doubt require questioning the very structure of Indian family and family law. However, this should not be seen as a ground to avoid taking action to protect married victims of rape; instead, it should be seen as an opportunity to redefine in a more equal and progressive way the institutions of marriage and family. Citing outdated laws and denying justice to victims will stand in the way of social progress. An essential task that the lawmaker has to do is to uphold the sexual autonomy of married women. Marriage should not invalidate the need for consent or be equated with the submission of women’s right to their own bodies. Regardless of who the victim and who the perpetrator, rape is rape.
[1] Srimati Basu, “Sexual Property: Staging Rape and Marriage in Indian Law and Feminist Theory.” Feminist Studies, 185–211, 188 JSTOR, 2011.
[2] Bharatiya Nyaya Sanhita, 2023, § 63, No 45, Acts of Parliament
[3] The Indian Penal Code , 1860, § 375, No. 45, Acts of Parliament
[5]Trisha Sreyashi ,Apex court must rule to criminalise marital rape, The Times of India,( Aug 20, 2024, 7.00 PM) https://timesofindia.indiatimes.com/blogs/the-law-lady/apex-court-must-rule-to-criminalise-marital-rape/
[6] Sonal Garg, Nivedita Singh, Marital Rape: Historical and Comparative Analysis, My Lawman Socio Legal Review, (August 20th 2024, 8,15 PM), https://mslr.pubpub.org/pub/vlo7anq8/release/1
[7]Sanya Agarwal, Marital Rape in India and its Impact, Jus Corpus Law Journal,(JCLJ), 747, 750, 2023
[8] Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty, AIR 1996 SUPREME COURT 922
[9] Farhan V. State and Anr,
[10] Justice K.S.Puttaswamy(Retd) vs Union Of India, 2019 (1) SCC 1
Author: Gowri Prakash
Juris Centre 