Marital Rape in India: History, Laws, and Challenges

Marital Rape in India: Marital rape is the act of forcible sexual intercourse by a man with his wife without his wife’s consent. To assert their control and strength, some husbands frequently sexually abuse their wives. Since the dawn of time, marriages between people from various cultures have frequently been considered as a means of procreation when the need for permission may not always be present. As a result, many traditions and cultures do not view consent during sex as sexual violence.

Marital Rape directly influences a country’s women rights. Women’s Rights in India are evolving now as compared to the past. In this article, we will read about marital rape in India, Issues related to marital rape, its history, laws, causes etc.

Issues Related to Marital Rape in India

Although many nations now view marital rape as a kind of sexual assault, previously, having sex while married was seen as a spouse’s right. In addition, marital rape is widespread across all of the nations. India is one of around 36 nations that have not made marital rape a crime. This demonstrates India’s propensity for a patriarchal and misogynistic way of life that has been ingrained in Indian society for many years. Because of the preconception that a woman’s primary responsibility is to assure pro-genies, whether with or without consent, so that the family line continues, marital rape is not criminalized in India.

History of Marital Rape

The Soviet Union was the first nation to make marital rape a crime in 1922. Subsequently, many Scandinavian and European nations made rape in marriage a crime. A number of applications asking the Delhi High Court to make marital rape a crime have recently been filed. The Union administration has responded by saying that it is considering a “constructive way” to make it a crime and has solicited ideas from various stakeholders. The petition calls for changing the Indian Penal Code (IPC) Section 375 (rape) as well as other criminal laws.

Laws on Marital Rape in India

Even just the word “rape” conjures up the image of a guy coercing a woman into having sex, and rapes often cause a great uproar. The patriarchal society in our country, however, turns a deaf ear to marital rape and acts as though it has no obligation to help married women who are being violated by their own husbands. The idea that a man can do anything he wants, whether or not his wife agrees, is prevalent in modern Indian society, where a woman is seen as his property after marriage. In India, marital rape is still not considered to be a crime, and the legal situation is still unclear. This is primarily due to the fact that when a rapist and victim are married, the concept of “consent” remains meaningless, leading society to believe that consent comes with marriage by default.

Section 375 of the Indian Penal Code

There is an exception for marital rape under Section 375 of the IPC. According to the rules against marital rape, husbands might face the following penalties:

• The husband faces a maximum sentence of two years in prison if the victim (wife) is a juvenile (12 to 15 years old). In some situations, there may also be a fine or both imprisonment and a fine.
• When the victim is under 12 years old, the husband may receive a penalty of up to 7 years in jail or, in some cases, a life sentence along with a hefty fine.
• If the husband and wife are considered to be legally separated, there may be up to two years in prison as well as a fine.
• If the wife is older than 15, it is not a crime, and no punishment will be meted out.

The court does not treat all types of rape equally, which is unfair and prejudiced, as there are some exclusions and requirements that the victim must meet, such as age, marital status, legal separation, etc. It is dishonorable for the victim to lose her legal protection and fundamental human rights when she is sexually abused by her husband, especially as every rape has a significant negative impact on the victim’s psychological, physical, and mental health.

Read More: Section 376 of IPC

Article 14 – Legal Right to Equality

In Article 14 of the Indian Constitution, it is stated that everyone has a legal right to equality. According to this, everyone in India should enjoy equal protection. Therefore, when a woman is denied her bodily rights and seeks redress in court, she is not given the justice she deserves just because of her married status. Article 14 of the Indian Constitution is broken by the exception for marital rape in Section 375 of the IPC. It is only fair for a married woman to enjoy the same equality as an unmarried, single woman. 

Article 21 – Right to Life

No one may be deprived of their life or personal liberty, except in accordance with a legal process, according to Article 21 of the Indian Constitution. Other laws fall under the same article, some of which are the rights to health, a safe environment, and sexual privacy. The right to a dignified existence, which is protected by Article 21, is violated when a man rapes a woman in marriage since it seriously undermines both her self-worth and her dignity. It serves as the underlying cause of numerous psychological issues. Marital rape violates the wife’s right to dignity since it puts her right in jeopardy. The right to sexual privacy is the next law covered by Article 21. Every citizen of the nation has the right to sexual autonomy. When we discuss sexual privacy, consent is a key factor. She should have the freedom and fundamental human right to only engage in sexual activity if she gives her consent, even if she is married. Even if it is her own husband, she cannot be forced to do anything against her choice.

Causes of India’s Failure to Criminalize Marital Rape

Here are the causes Why in India, Marital Rape is not a criminal offence:

• Customs and Culture:  Most women are conditioned to believe that their husbands should dominate every aspect of their lives after marriage. Women have been taught by socio-cultural traditions, conventions, and values that it is their duty to always satiate their husband’s sexual desires.
• “WITH MARRIAGE COMES CONSENT” is a widely held belief: People believe that when two people get married, they enter into a contract because of the traditional prejudices and patriarchal that prevail in the culture. The contract effectively states that anything that occurs during the course of a marriage is consent and that the husband is free to have any relationship with his wife he chooses. The girl’s parents arrange the marriage without giving a thought to what the girl is thinking. Therefore, husbands feel their wife has no say when it comes to engaging in sexual activity as well and that consent does not matter when it is not taken into account in such a large notion as marriage.
• Family Pressure and Involvement: Once a couple is married, most families put a lot of pressure on them. The only thing they ask of them is to expand their family and carry on the family tradition. Even if a woman does not desire children, Indian households urge her to have them anyhow since they forbid her from exercising her own reproductive autonomy. This familial pressure prompts the husband to coerce his wife into having sex with him in order to conceive her. Because of this, in cases like these, the families are pleased with the continuation of their family line, even if it required raping the lady. They are not concerned with the woman’s well-being or mental health.
• Absence of Legislation: However, section 375 of the Indian Penal Code makes it clear that a husband engaging in sexual acts with his wife who is not under the age of 15 will not fall under the definition of rape, despite the fact that it is not expressly stated anywhere in any law that marital rape is a legal action under Indian laws.
• Financial Reliance: Another issue that should be addressed under this heading is a woman’s economic dependence on her husband and in-laws. Because historically, women were not expected to leave the home, even though this mindset is slowly changing, married women are powerless to defend themselves from such wrongdoing and are forced to put up with their husbands’ brutality.

Global Perspective of Marital Rape

The criminalization of marital rape differ significantly from country to country. In some nations, marital rape is considered a criminal offense, and laws are in place to prosecute individuals who engage in non-consensual sexual acts within a marriage. These countries recognize that marriage does not imply a blanket consent to sexual activity and emphasize the importance of spousal consent.

However, in other parts of the world, marital rape may not be explicitly addressed in legal frameworks, or there may be legal exemptions or limitations. In some cases, cultural norms, societal attitudes, or legal systems may contribute to challenges in addressing and prosecuting marital rape.

Social Issues in Making Marital Rape in India a Crime

The Socil Issues that India is facing for making marital rape a crime are:

• Destabilize the institution of marriage: Families could descend into complete anarchy as a result, and the institution of marriage could be undermined.
• Misuse of Section 498A IPC: Similar to the growing abuse of section 498A of the IPC (harassment given to a married woman by her husband and in-laws), it may become a simple instrument for harassing the husbands.
• Issues with Implementation: Criminalizing marital rape will lead to significant operational problems, such as the reliability of witness testimony and courtroom evidence.
• Cultural Diversity: Before making marital rape a crime, it is important to take into account that India has specific issues related to variables like poverty, huge diversity, lack of financial empowerment for the majority of women, illiteracy, and social attitude.
• Understanding is more Crucial: Simply making marital rape illegal might not be enough to put an end to it because “moral and societal awareness” is crucial to putting an end to such an atrocity.
• The Law Commission did not advise: After carefully evaluating the situation, the Indian Law Commission and the Parliamentary Standing Committee on Home Affairs did not recommend making marital rape a crime.

Note: Regarding the question of making marital rape a crime, the top court is now hearing a number of petitions. The marital rape exception under Section 375 IPC (rape) was challenged by the petitioners on the grounds that it discriminated against married women who are sexually attacked by their husbands. The appeals come after the Delhi High Court issued a divided ruling on whether or not to charge spouses with having extramarital affairs with their wives.

Conclusion – Marital Rape in India

The common belief is that because a couple is legally married, the husband can violate the dignity and self-worth of his wife without being held accountable. Why shouldn’t the state step in to defend a woman’s right to her body when it may intervene as an arbitrator in the breakup of a marriage? Permission to sexual activity is one thing; consent to violent sexual activity is quite another, and no wife ever agrees to violent sex. The moment has undoubtedly come for the government to make marital rape a crime, or else the courts will have to do it.

FAQs on Marital Rape in India

1. What is the legal status of marital rape in India?

Marital rape is not explicitly recognized as a criminal offense in India. Indian law does not currently have a specific provision addressing non-consensual sexual acts within a marital relationship. The exception to Section 375 of the Indian Penal Code considers sexual acts between a husband and a wife as not constituting rape, provided the wife is above a certain age.

2. Has the Supreme Court of India made any rulings regarding marital rape?

The Supreme Court of India has not made any specific rulings regarding the criminalization of marital rape. The legal framework and debates surrounding marital rape continue to evolve.

3. What are the challenges in criminalizing marital rape in India?

Several challenges hinder the criminalization of marital rape in India. Some of these challenges include societal attitudes, traditional beliefs, concerns about the misuse of laws, and the perception that marital relations are private, making legal intervention challenging.

4. How does marital rape in India relate to women’s rights and gender equality?

The absence of specific laws criminalizing marital rape raises concerns about women’s rights and gender equality in India. Advocates argue that recognizing and penalizing marital rape is crucial for ensuring women’s bodily autonomy, safety, and equal protection under the law.

5. What are the recent developments or debates surrounding marital rape in India?

The issue of marital rape continues to be a subject of debate and discussion in India. There is an ongoing demand from various quarters, including women’s rights activists and legal experts, to criminalize marital rape. The matter has been a part of public discourse, with periodic discussions and proposals for legal reforms to address this gap in India’s legal framework.