Family LawResearch Article

Marital Rape- A Menace To Be Criminalized

Author: Snigdha Singhi, 4th year law student currently pursuing BA- LLB (H) from Amity Law School, Noida


In this era of patriarchy, women have always been subjected to humiliation, domination and pressurization by the men and the society as a whole. Sexual intercourse between husband and wife on consent of both is legally accepted but when one does not consent to do so then it constitutes Marital Rape. Marital Rape is a form of rape which is faced by women when they are victim of sexual assault or violence by their husbands. Even though marital rape has been ongoing in India for decades and centuries, it is hidden behind the curtain of marriage. Because of this most the men and society thinks that marrying a woman is license to sexual intercourse even if her consent is not there. Married women would also find it difficult to escape the abuse and sexual violence caused to them by their spouse as they are legally and financially tied to them. “India is one of the 36 countries where marital rape is not a crime.”[1] Marital Rape is violating article 21 of Constitution of India which is right to life with dignity and hence it is a much needed reform in our legal system. Rape, a cognizable and non bailable offence is criminalized by the Indian Penal Code, 1860 and various amendments regarding form of rape have been induced in same under sec 376, then why marital rape is still not criminalized by the code or defined in any statute or law? The non-criminalization of marital rape would encourage men to cause sexual assault to women and use them for sexual pleasure even if they do not consent to it.

 The aim of the research article is to highlight the importance of consent and differentiate between rape and consensual sexual intercourse and to analyze the trauma faced by women who are the victims of same through various cases. Through this paper I would like highlight marital rape is a menace to the women and is not acceptable and hence should be criminalized.


Marital rape also known as Spousal Rape is committed by one spouse against the other. It refers to sexual intercourse between husband and wife when the wife does not consent to do so. Being married does not give the husband license to force his wife to satisfy his sexual pleasures and when he forces his wife to indulge in sexual activities with him or sexually violate or abuse his wife it constitutes Marital Rape. “Marriage, a sacred bond which is a divine can be frightening in today’s world”.[2] Women were already facing threats and assault by men in the society and now they are being victim of marital rape by their own spouse in their safest environment which is their house. According to Morton Hunt, “The typical marital rapist is a man who still believes that husbands are supposed to rule their wives.” Section 375 of the Indian Penal Code, 1860 has criminalized all types of rape and assault against the women leaving marital rape. The section discriminate married women who are sexually assaulted by their husbands. The Indian Penal Code, 1860 does not took marital rape as an offence and hence does not have any provision for it or its punishment. Marital Rape violates basic rights which are granted by the Constitution of India, 1950.  Most of the men think that after marrying the women they are an object who can be moulded according to them and can be used but it’s high time that men of the nation and society have to treat women with equality, respect them and secure their dignity. Women who are the goddess of the nation, strength and pillar of the family are victims of marital rape not only in rural areas but urban areas also.

After marriage many of the wives are treated as an object and property by their husbands and the society gives a boost to such mentality of the husband. Because of this they think it is alright to rape their wives, force them to provide them sex or to sexually abuse their wives to satisfy themselves. Women in our society have not been treated equally and given equal importance as that of a man so they even think men can do anything and they have no choice over it. Hence many women also think that if they are victim of marital rape by their husband it is not a crime and it is their duty to keep their husbands happy and satisfied hence such women do not take any action against their husbands and tolerate it. Women have always been taught that they have to do whatever it takes for a happy marriage, so many of them is ready to sacrifice themselves, their dignity and self respect for the sake of such sick men. This does not give the husbands the power and audacity to perform such heinous crimes without any guilt but they are also not punished for the same. These men even forget that any type of sex or indulging in sexual activity with their wives which is not consensual or there is no consent would constitute rape.

Marital Rape is also a type of domestic violence. It basically occurs when a husband physically, mentally, financially, forces his wife to indulge into sexual activity even when she does not consent to it. The reasons behind this can be many like when men feel that women can be used to get rid of any anger, frustration or stress, and when he feel over power. Whatever the reason may be a coercive or forced sex is never considered to be legal. Even if some of the women want to seek remedy against the same they have not been provided any by any statute, code, law or judicial system of India. “Criminalization of marital rape is considered to destabilize the institution of marriage as submitted by the Union Government before honorable High Court”. [3] Despite being common in every corner of the nation it still continues to be legal in India. The judicial system still does not find it requisite to criminalize marital rape thinking that it would compromise the institution of marriage and the fake image would come into the picture about the harsh reality of marriage.


The High Court of Kerala in the case of Meritor Savings Bank vs Vinson quoted “In a country like India which is deemed to gender equality, only such physical relations which are happily welcomed do not violate the rights of the victim. Such a relationship can be accepted by mutual consent.”[4]

There is a clear distinction between consensual sex and rape between the wed lock. When there is sexual interaction between the partners which both of them consent to or when there is mutual consent for the sexual activity between partners, it is known as consensual sex. When such consent is not obtained and the wife is forced to provide sex, is sexually humiliated or assaulted, or coerced to indulge into sexual activity against her will, then it amounts rape and the coercion of husband towards his wife will constitute marital rape. Many courts have not given high cognizance to such cases as they have said that once or in early stages if consent was established the wedlock is not required to obtain consent of women. But even if the wife shows visible signs of not consenting to intercourse the husband would coerce him on her.

People are of the mentality that if husband forces his wife for any sexual activity it would not amount to rape since they are tied in the bond of marriage. Being married is not equal to giving consent for sex. Marriage does have sex as one of it phases but without consent it would always amount to rape. Due to illiteracy, poverty also many women does not know that a term like marital rape is even crime especially in rural areas. Marital rape is widely practiced in rural areas as the husbands being frustrated treats their women like bags of frustration and release all their stress by dominating, pressurizing, assaulting their wives if they don’t consent to indulge into any sexual activity in order to satisfy their sexual urges, favors or pleasures.

Women have to be taught everywhere that if they do not consent to sex it would amount to rape and just being married not only means that it is license to rape them or obtain sex without their consent. Even if some women raise voice against marital rape there is no law or penalty provided by any law, code or statute in the Indian Judicial System. As a result it would encourage men to even have their urges satisfied without facing any legal consequences and they would continue to do so until and unless marital rape is not criminalized and the women who are facing this would have to face till judicial system does take marital rape as a non bailable criminal offence.


Out of every woman negligible women will be not victims of marital rape. But most of the women have been victims of marital rape by their husbands and have gone through so much of emotional trauma and still stand strong and serve the society. Though Indian Penal Code in after 2013 Amendment has provide provision for rape by husband but that is only available to minor wife and when the victims of such wives are above age of 18 years there is no remedy under the code.

“In the case of INDEPENDENT THOUGHT vs UNION OF INDIA AND ANOTHER, the main issue was whether sexual intercourse between partners where wife is minor would amount to rape or not? In this case an exception to section 375 of Indian Penal Code was introduces which was sexual intercourse or acts by man with his own wife not being 18 years not rape.”[5] Hence there was a clear case of discrimination and deciding parameter of rape by husband through the help of ages. Till date marital rape has not been made legal.

In the words of Justice Mathew Hale of England, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.”[6] Many of the law makers has find out easy way to manipulate with the loopholes of judicial system and has been successful in manipulating the society and courts by hiding real picture of marriage in order protect integrity of nation. By doing so, men are given free license to rape their wives but women who are the victims of sexual abuse have to undergo through it daily and even had to reside for the rest of their lives with their rapists who rape them daily as they tied to them legally. Men leave no loopholes of judicial system unturned to find benefits which satisfies their sexual urges and pleasures by treating women as a property and not getting punished for the same.


Marital rape is yet not considered as a crime or punishable offence in India. There have been many petitions that have been put forward against high court challenging section 375 of Indian Penal Code, 1860 but still no visible change has been there since a long time. Due to lack of laws many wives faced sexual assault and violence by their husband as they deem that marriage is consent to sex which does not amount to rape. But it is not true being married does not mean one has consented to indulge in sexual activity if one does not it would always amount to rape. In fact, social image is one of the biggest fears for the evil of such crime and hence hidden behind the curtain of marriage. Another reason for non criminalization is to protect false image of institution of marriage and hide the harsh reality as said above by the government. Some women do not raise voice as they are not financially independent and are dependent on their husbands for their daily source of livelihood and better standards of living. Even women who are victim of marital rape are not provided support by their own families due to fear of society, societal pressure as marriage is considered sacrament which once tied cannot be broken and has to perform religious duties.

Apart from all this, Marital Rape violates women’s right to protection, equality and right to life. It violates the fundamental rights granted by the Constitution of India. Where most of the women are fighting for equal treatment and rights for both men and women, many women are still facing humiliation, domination and sexual assault in their own household. Women are expected to strictly maintain their dignity, self respect and security and husbands ought to maintain their integrity but some of them forget their morals and ethics and just want to dominate or sexually assault women in order to satisfy their own sexual urges.

Marital Rape violates article 14 and 21 which are granted to every citizen and which are basic fundamental and legal rights available to all by the Constitution of India, 1950.  Article 14 Constitution of India, 1950 states that “ state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”[7] Although the constitution has granted equal rights and treatment to citizen, it still discriminate women and men have free license to rape women and harm their dignity and self respect. Article 21 Constitution of India, 1950 states that “  no person shall be deprived of his life or personal liberty except according to procedure established by law.”[8] Although it is drafted by judicial system that everyone is subjected to personal liberty irrespective of any caste, religion, gender etc they belong to still women face major hindrance to their liberty by the society and their husbands.

There is urgent need to criminalize marital rape as it does not only cause emotional trauma to women but also violates basic fundamental and legal rights granted by the constitution to all the citizens irrespective of what gender, caste, color, creed etc they belong to. Now after so much of modernization Indian law accepts women as a separate legal entity but still many women does not have perks of it and have to live under the shadows of their husband and have to bear with the assault and husbands never stop as they do not have to face any legal consequences or punishment for the same by the law.


Women who have to fight with outside world now have to fight even with their husbands. The husband who sexually assault their wives are free to do so till date cause the legal system still does not find the urgent need to criminalize marital rape even after seeing so many cases. The women who raise their voices do not find any remedy for the same and hence have to face all this till the marriage exists. And the women who tolerates all of it gives encouragement to men to continue doing so and the men can do anything without being subjected to penalty. Despite of having rape laws they mainly exists for patriarchal aspects as they do not protect married women and even the law discriminate men and women in their laws drafted by the judicial system. “A woman, who is raped by a stranger, lives with a memory of a horrible attack; a woman who is raped by her husband lives with her rapist.”[9] The women who are considered as Goddess of Nation are being threatened by their husbands and they do not feel safe even in their safe3st environment which is their home.

There has been no interest taken in criminalizing the heinous crime of marital rape by the Indian law makers, judicial system or the government. It should be criminalized before women have to compromise their liberty and dignity and live with the rapist for their entire life. The men who think that marriage means license to sexual activities even without consent of their wives and they can harm their dignity, integrity and liberty will be liable to legal consequences and harsh penalty by the Indian judicial system. Once marital rape will be criminalized many women will no more be victims of domestic violence also and hence will again stand for themselves and the constitution once would be again fear to the wives of the nation in granting those equal rights and protection. The law hence has to recognize and take into cognizance of women right that is No means No and hence sexual abuse or intercourse without consent is rape and the husbands cannot escape from them because of loopholes of Judicial System of India.


  1. India Today, March 12, 2016
  5. Independent Thought v. Union of India, (2013) 382 SCC (2017) (India).
  6. History of the Pleas of the Crown, Vol. I, at 629 (1736) quoted in Rape – A Legal Study by National Commission for Women, 39(2000).


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