Marital Rape: A Non-Crimanlised Crime in India

Rape is a grave offence against women. Intrusion of a woman’s dignity and self-esteem without her permission and in addition to it when such an act is committed by her husband, then a woman is merely considered as an object who is fulfilling one’s sexual desires.


As per the Oxford dictionary, “the rape committed by the person to whom the victim is married is marital rape.”  Marital rape is any unwanted sexual conduct by a partner or ex-partner, which is performed without or against the will of the female partner. However, the consent may have either been obtained  forcefully or by a threat of force, intimidation or when the person is not in the state of giving consent, then it results in forceful sexual intercourse by a man with his own wife. The worst part is that the idea of consent stands invalid and it is also a form of domestic violence. Sexual abuse is not considered a crime in India along with many other parts of the world.


In Indian society, marital rape is considered one of the most common and derogatory form of humiliation but it is hidden under the shelter of marital status. India is one of those thirty-six countries who have still not crimanlised marital rape. Although, a number of petitions have been filed in the Supreme Court and various High Courts challenging the constitutionality of this exception of section 375 of the Indian Penal Code.


According to section 375 of the Indian Penal Code, rape is considered a crime but on the other hand, marital rape is still not considered a crime but it is also an exception to section 375 of the IPC stating that sexual intercourse by a man with his own wife is not considered as rape, however the wife should not be below 15 years of age. Marital rape explicitly deals with the rape of a wife by her husband without her consent.  Therefore, it is safe to say that marital rape is considered as a legal act under section 375 of the Indian Penal Code.


Types of Marital Rape


There are basically three types of marital rape recognised by the society-


  1. Obsessive Rape: When a husband is obsessed with having sexual activities and he forces his wife to do the same but if she refuses to do so then the act will involve assault, torture and perverse sexual acts and it is often physically violent.
  2. Battering Rape: Battering rape involves both physical and sexual violence experienced by the victim in her relation. For instance, some are beaten by their partners during sexual violence, or while the rape is being committed it is followed by the act of physical violence where the husband wish to have sex and forces his wife for the same against her will.
  3. Force-only Rape: The amount of force which is used by the husbands islimited to the unit of force required by their wives in the force-only category of marital rape. Such force is usually used when a wife refuses to have sexual intercourse.




Reasons why Marital Rape is still legal in India


  1. Family Pressure: According to Hindu law, marriage is a ritual, which is once tied can never be broken due to any reason. The main reason behind such a relationship is to perform religious duties and to create family. Therefore, marriage is compulsory and more in the case of females. While under Muslim law, marriage is a social concept and the main objective behind it is to produce children. Therefore, Muslim Law clearly says that marriage is a mode of fulfilling sexual desires of men whether women want it or not.
  2. Economic Dependence: Economic dependence of women over her husband and in-laws is also on of the reason which encourages marital rape because earlier women were not supposed to move out of their house. Although, this mindset is changing slowly but it still exists in many families and because of this reason women are not able to protect themselves from such a wrongful activity.
  3. Lack of Laws: It is not clearly mentioned under any law that marital rape is a legal action under Indian laws while the exception of section 375 of IPC makes it quite clear that husband performing sexual acts with his wife above the age of 15 years will not be covered under the definition of rape.
  4. Social Strain: Lack of laws and the fear of social image is one of the main reason which leads to the act of marital rape and is till hidden behind the sacred relationship of marriage. Women have the right to protect the privacy of their bodies from a stranger but when the assassin of bodily injuries and physical pain is her own husband, then such protection is taken away from her by the legislators.


Remedies available to women from Marital Rape


  1. Section 376(B) of IPC: Section 376 (B) provides punishment to a husband who is living separately whether under the decree of divorce or any other reason, has forceful sexual intercourse with his wife is punished with imprisonment of not less than two years which may extend to seven years.
  2. Under Domestic Violence Act, 2005: Domestic Violence Act, 2005, provides legal protection to a woman who is facing domestic violence. However, it does not consider marital rape as a crime, but still if a woman is victamised of marital rape then she can approach the court and ask for judicial separation.


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