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In India marriage is a sacred union between the two individuals having obligations towards each other and towards the society. Sexual intercourse without consent between non-spouses is always a crime under the criminal law. But, the patriarchal structure of our society does not recognize the term “marital rape”. In the year 2020, in our society, some people even don’t know about the word marital rape. Marital rape is the act of sexual intercourse between spouses without consent. The absence of consent is an important element here physical violence is not necessary.


 Historically rape was considered a crime or tort of theft against the father or husband. The damage here is not of the victim but the property of the father or husband. So, a woman cannot complain about rape against the husband. According to Sir Matthew Hale, the husband cannot be held guilty of rape upon his legally wedded wife, because the wife has given herself to the husband for this kind of purpose with consent, which she cannot retract. India is one of the 36 countries which have not criminalized marital rape till now. Now many countries whole over the world start criminalizing marital rape. The United States of America criminalize it in 1993.


Under Criminal Laws Section 375 of the Indian Penal code, 1860 defines the word rape. The section makes an exception and does not criminalize marital rape. It states that intercourse by the husband with his wife above the 15 years of age is not rape. But the Supreme Court in 2013 in the case of “Independent Thought Vs UOI” criminalizes the unwilling sexual intercourse with a wife less than 18 years of age. Supreme Court is congested with the petitions challenging this exception under section 375 of IPC.


The judiciary has acknowledged the word “No” for women for sexual involvement. And the court also held that this exception makes unreasonable classification under Article 14 of the Constitution of India. Article 14 of the Constitution ensures equality before the law and equal protection of laws. But this exception discriminates against the woman victim of marital rape. Article 14 provides full autonomy on her body and recognizes her right to bodily integrity included under the right to privacy. This Exception of Criminal law under section 375 of IPC makes two classes of a rape victim based on their marital status and immunizes the husband who is guilty of rape.

Earlier, the woman was not considered as legally independent rather was considered a chattel for a man. This law built on the Victorian Patriarchal norms that didn’t allow the woman to own property. And, this norm merged the identities of husband and wife under the “Doctrine of Coverture”.

But now the time has been changed and women are getting legal independent status. This is evident from the plethora of statues for the protection of women.  For example- The Protection of Woman from Domestic Violence Act or The Sexual Harassment of Woman at the Workplace (Prevention, Prohibition, and Redressal) Act.


In 2000, the Supreme Court in the case of “State of Karnataka Vs Krishanappa” held that sexual violence is not only an inhuman act but it is also an intrusion with the privacy and sanctity of a female. And non-consensual sexual intercourse amounts to sexual violence. The Supreme Court in its recent judgment of justice Puttaswmay held the Right to Privacy as the fundamental right of every citizen enshrined under Article 21. The right to make choices regarding intimate relations is implicit under this right. Hence the Supreme Court has recognized the right of a woman to abstain from sexual intercourse irrespective of the marital status.

But the exception under section 375 of IPC and the patriarchal view of society is continuously providing a shield to the rapist husband. Some of the views that protect the act of husband are as follows:

  1. Against Indian culture

Some of the views are that those who are in favor of criminalizing marital rape are following the western culture blindly. Western countries and our country are different because of cultural and socio-economic differences. When the socio-economic conditions are combined with illiteracy there is difficult to imagine punishing the marital rape. It will break the sacred institutions of marriage.

But the Supreme Court in the case of “Independent Thought Vs UOI” held that criminalizing the marital rape has nothing to take with the breakdown of a marriage. If the divorce or judicial separation cannot destroy the marriage this concept cannot do either. The Gujarat High Court has recently held that the cruel act of marital rape destroys faith in the marriage.

  • A Woman once married her consent is implied

One of the draconian views that prevail in our society is, once a woman gets enters into the bond of marriage, she submits herself for sexual intercourse forever. Despite this view, the Gujarat High Court held that there has been a long time throughout the notion of implied consent.

  • There will be the misuse of the law

One of the views is that criminalizing marital rape will lead to the misuse of the law by the woman.


The above discussion states that decriminalization of marital rape under Section 375 (Exception) is the clear violation of the Right to equality under Article 14 and the Right to life under Article 21 of the Constitution of India. The notions that decriminalizing marital rape destroys the institution of marriage are vague. It is the marital rape that destroys the marriage as it ends the faith into the marriage. It is high time for the legislature to introduce the term “Marital Rape” on the statute books.

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