1. Introduction
Marital rape refers to non-consensual sexual intercourse or acts within marriage. Traditionally, many jurisdictions exempted spouses from rape charges, claiming consent is implicit in marriage. However, modern legal systems increasingly reject this notion, emphasizing bodily autonomy and human rights.
2. Meaning & Concept
Legally, rape involves non-consensual acts of penetration. Marital rape specifically occurs when the victim is the spouse and the consent is withheld or produced through coercion, force, or manipulation. What distinguishes it is the assumption—rooted in outdated legal frameworks—that marriage implies irrevocable consent.
3. Historical & Legal Background
3.1 Colonial Origins
In India, Section 375(2) IPC (formerly wife over 15, later 18) exempts marital rape, stemming from Matthew Hale’s 17th-century doctrine: “the wife hath given herself up to her husband, consent which she cannot retract” This Victorian-era concept also underpinned British common law, later dismantled by the UK in R v R (1991), when the House of Lords eliminated the marital rape defense
3.2 Indian Legal Evolution
- Justice J.S. Verma Committee (2013) recommended removing the exception
- Independent Thought v. Union of India (2017): SC struck down the exception for wives aged 15–18, asserting it violated Articles 14, 15 & 21
- Subsequent petitions challenge the immunity for adult women; hearings ongoing .
4. Nature & Features
- Violation of bodily autonomy: Marital rape denies the fundamental right to refuse sex.
- Constitutional inconsistency: Exemption conflicts with equality, dignity, and privacy rights
- Cultural blind spots: The law assumes marital sex is compulsory, negating women’s agency
- Accountability gaps: Other forms of domestic sexual violence are punishable, yet outright rape remains exempted
5. Criminalisation of Marital Rape
5.1 Global Overview
- 77 countries explicitly criminalize marital rape (e.g., UK 1991, U.S. states, Canada, Australia)
- First Commonwealth change: Australia in 1976, followed by Nepal (2002)
5.2 Indian Law
- IPC §375 maintains exception for wives over 18, though minor exemption removed
- Domestic Violence Act (2005): recognizes sexual abuse as civil wrongdoing but lacks criminal sanction
6. Judicial Opinion
6.1 Supreme Court Rulings
- Independent Thought (2017): Minor wives (15–18) cannot be raped
- Ongoing petitions challenge adult exception .
6.2 High Courts
- Karnataka HC (2022): Held that the exception is not absolute—trial must proceed .
- Madhya Pradesh HC (2024): Ruled consent irrelevant for “unnatural sex” between husband and wife
7. Punishment & Liability
If marital rape were criminalized:
- Liability under IPC sec. 375–376: punishment would include 7 years to life imprisonment.
- Additional provisions under Criminal Law (Amendment) Act 2013 expand rape’s definition
- Civil remedies already available under the Domestic Violence Act could complement criminal sanctions.
8. Challenges in Prosecution
- Consent in privacy: proving non-consent in a closed marital context is difficult .
- Fear of misuse: concerns over false allegations in divorce or custody suits
- Social stigma: women may avoid reporting due to shame or family pressure
- Limited awareness: lack of legal literacy about consent in marriage
- Enforcement gap: legal provisions exist (e.g., domestic violence framework) but often under-utilized in criminal context.
9. Recommendations
- Amend IPC/BNS: remove marital rape exception entirely.
- Strengthen criminal procedure: guidelines for sensitive evidence-gathering, survivor protections
- Mandatory training: sensitization for police, judiciary, healthcare providers
- Public awareness: dismantle patriarchal norms; promote equity in marriage
- Victim support: shelters, legal aid, counseling integrated with criminal justice responses
- Continuous monitoring: review implementation; adjust law based on empirical outcomes.
10. Conclusion
Marital rape remains legally exempted in India, despite global and constitutional mandates. Although minor wives received protection in 2017, adult wives remain vulnerable. Ending this exception is necessary to align domestic law with human rights standards that uphold bodily autonomy and equality. Reform demands coordinated legal amendment, institutional change, societal transformation, and survivor-centric policy enforcement.
CONTRIBUTED BY : ANSHU (INTERN)