This article titled ‘Marital rape: A valid ground for divorce’ is written by Saima Gous and deals with the Indian conceptions around women and the offence committed against them, thereby showing the concept of marital rape. It scrutinizes the main reasons behind it and its consequences on the physical and psychological health of a woman which leads to… Read More »

This article titled ‘Marital rape: A valid ground for divorce’ is written by Saima Gous and deals with the Indian conceptions around women and the offence committed against them, thereby showing the concept of marital rape. It scrutinizes the main reasons behind it and its consequences on the physical and psychological health of a woman which leads to divorce. Furthermore, it discusses the role played by society, the legislators and the judiciary.

“While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female.” – Justice Arjit Pasayat.

I. Introduction

According to the Chief Justice of England, Sir Matthew Hale, “the husband cannot be guilty of a rape committed by himself on his lawful wife for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract.”

The word ‘rape’ has been derived from the term ‘rapio’, which means ‘to seize’. It is forcible sexual intercourse with a woman without her will or consent.

The Supreme Court of India has described rape as “deathless shame and the gravest crime against human dignity.” Rape is often explained as a demonstration of ethnic, racial and class hatred or arising from a patriarchal society in which women are viewed as the property of men. Rape can be perceived as an act of violence against a woman to outrage her modesty by every means.

II. What is Marital rape?

“Her friends used to tell her it wasn’t rape if the man was your husband. She didn’t say anything, but inside she seethed; she wanted to take a knife to their faces.” – F.H. Batacan.

Marital rape is defined as forceful sexual relations by a husband with his wife without her consent or against her will, obtained by force, or threat of force, intimidation, or when a person is unable to consent. A patriarchal society considers marriage as a building block of society and represses women’s voices. Though marital rape is the most usual and repulsive form of masochism that prevails in Indian society, it is hidden behind the iron curtain of marriage. The former Chief Justice of India.

1. Impacts of marital rape on women

1. Women face mental agony associated with marital rape which includes anxiety, depression, emotional torture and suicidal thoughts.

2. Marital rape victims suffer long-running physical injuries that are as serious as victims of stranger rape experience

3. Victims of marital rape may persist in the marriage for many reasons such as fear of more violence, deprivation of financial security, low sense of self-worth and false hope that their partner with change.

4. Marital rape and violence diminish children’s health and well-being, through the psychological effects of witnessing violence and because it can demean the ability of mothers to care for themselves and their children

III. Marital rape – A non-criminalised crime in India

The definition of rape codified in Section 375 of the Indian Penal Code includes all forms of sexual assault involving non-consensual intercourse with a woman. However, exception 2 to section 375 exempts unwilling sexual intercourse between a husband and wife above fifteen years of age and thus safeguards such acts from prosecution. As per ongoing law, a wife is presumed to deliver consent to have sexual intercourse with her husband post entering into matrimonial relations. While unwilling sexual contact between a husband and a wife is deemed as a criminal offence in almost every country of the world.

India is one of the 36 countries that still have not criminalised marital rape. The concept that once a woman is married, she hands over her perpetual sexual consent to her husband is deeply embedded in our society. Marital rape is hard to deal with as the assailant is someone the woman knows, loves and trusts.

Marital rape usually goes unnoticed due to family obligations or fear of husband, financial dependence on husband, safeguarding the future of their children, or because of limited laws that protect the victims of marital rape.

In India, marital rape is hidden behind the sacrosanct curtains of marriage. Even though many legal amendments have been done in criminal law for safeguarding women, the non-criminalisation of marital rape in India sabotage the dignity and human rights of women. The concept of marital rape in India is the essence of what we call “implied consent”. Marriage between a man and a woman here implies that both have consented to sexual intercourse and it cannot be an offence.

Justice Dipak Mishra pronounced that “marital rape should not be a crime because it will create absolute anarchy in many families. Our country is sustaining itself because of the family platform which upholds family values.” Social practice and ethics create such an environment where matrimonial rape cannot be criminalised.

IV. Why does the Indian legal system continue to turn a blind eye towards marital rape?

Section 375 of the IPC recognise rape as a criminal offence. Exception 2 of the section says that in marriage forceful sexual cohabitation is a crime if the wife is under 15 years of age, even though child marriage so far was declared illegal in India several decades ago. The ancient legislation is clearly in dire need of amendments. Indian marriage laws are practiced on the outdated principle of ‘implied consent’, which exclusively gives both parties in marriage the permanent license to have sexual intercourse whenever either party desires.

The archaic principles behind these laws differ diametrically from the progressive ones which administer other Indian laws, especially recent ones such as the right to privacy. As long as social bridge controls the general way of life and the Indian legislature permit implicit consent in marriages, women will continue to endure abuse behind closed doors.

V. Marital rape and constitutional rights

  1. The doctrine of Coverture- The non-criminalised nature of marital rape originates from the British era. This doctrine gives rise to marital rape of joining the woman’s identity with that of her husband. The marital exception to the IPC’s definition of rape was drafted on the grounds of victorian patriarchal standards that did not acknowledge men and women as equals, did not permit married women to own property, and merged the recognition of husband and wife under the “Doctrine of Coverture.”
  2. Violative of Article 14- Marital rape violates the right to equality enshrined in Article 14 of the Indian Constitution. The exception produces two classes of women based on their marital status and safeguards actions committed by men against their wives. In doing so, the exception makes possible the casualties of married women for no reason other than their marital status while defending unmarried women from those same acts.
  3. Contradicts Section 375 of IPC- The motive of Section 375 of IPC is to protect women and punish those who indulge in the inhumane activity of rape. However, exempting husbands from punishment is exclusively controverting to that objective, as the outcome of rape are the same whether a woman is married or not. Moreover, it is actually more tough for married women to escape abusive conditions at home because they are financially and legally dependent on their husbands.
  4. Violative of Article 21- There are certain rights enshrined in Article 21 which includes the right to health, privacy, dignity, safe living conditions and a safe environment.

In the State of Karnataka v. Krishnappa, the Supreme Court held that apart from being a heinous act, sexual violence is an unlawful intrusion of the right to privacy and spirituality of a female. It was held that non-consensual sexual intercourse amounts to sexual and physical violence.

In the Suchita Srivastava v. Chandigarh Administration, the Supreme Court regarded the right to make choices related to sexual activity as the same as the right to privacy, personal liberty, dignity and bodily integrity under Article 21 of the constitution.

In the Justice K.S. Puttuswamy (Retd) v. Union of India, the Supreme Court acknowledged the right to privacy as a fundamental right of all citizens. The right to privacy includes “decisional privacy reflected by a capability to make intimate decisions largely comprising of one’s sexual or procreative nature and decisions in respect of intimate relations.”

In all of these judgements, the Supreme Court has recognized the right to abstain from sexual activity for all women, regardless of their marital status, as a fundamental right vested in article 21 of the constitution. Therefore, forced sexual relations is a violation of the fundamental right under Article 21.

VI. Recent judgements on marital rape

1. Marital rape is an injustice and must be criminalised- Gujarat High Court judgement (2018)

FactsIn this case, the complainant narrated that her husband compelled her to have sexual intercourse with him against her will and he also indulged in unnatural sex activities. He and his family used to torture her for dowry. The woman was subjected to mental and physical harassment after which she registered an FIR of rape against her husband.

Judgement– The Gujarat High Court released the man accused of raping his wife on the grounds that there was no law on marital rape and according to exception 2 to Section 375 non-consensual intercourse by a husband does not amounts to rape.

Justice Pardiwala contended “No one is willing to talk over to reform the criminalisation of Marital rape. A law that doesn’t grant married and unmarried women equal protection creates circumstances that eventually leads to marital rape. Making marital rape illegal or an offence will eliminate the ‘destructive attitudes’ that encourage the marital rape.”

He further said that the complete statutory abolition of marital rape is the first essential step in instructing societies that dehumanised treatment of women will not be accepted and marital rape is not a husband’s privilege, but it is a violent act and an injustice that must be criminalised. However, the court ordered criminal proceedings against him under Section 354 (Sexual harassment) and Section 498A (A husband and his family subjecting a woman to cruelty).

2. Marriage doesn’t mean consenting to have a sexual relationship- Delhi High Court (2018)

A bench constituting Chief Justice Gita Mittal and Hari Shankar held that marriage gives the right to both woman and man to say no to physical relations. Marriage does not define that the woman is always ready, consenting and willing to have sexual intercourse. The man is required to prove that she was a consenting party. However, the court dismissed a PIL seeking to make ‘marital rape, a ground for divorce’ as the centre has the authority to make laws.

3. Marital rape a good ground to claim divorce- Kerala High Court Judgement (2021)

Recently the Kerala High Court passed a landmark judgement observing that Marital rape, though not penalised in the country, is a rational ground to claim divorce upholding a family courts’ verdict to grant a divorce on the grounds of “marital cruelty”.

Section 375 of the IPC defines the offence of rape with the help of six clauses. One of the exceptions to this offence is “sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape”. Matrimonial rape is not criminalised in India but activists claim that this exception compels women to suffer sexual violence in their own homes. The centre has previously contended that criminalising marital rape may subvert the institution of marriage.

Facts- In this case, the man was a doctor by profession but later got into the real estate business and construction, which wasn’t successful. The woman alleged, her husband subjected her to persistent harassment for money when he was suffering from huge financial losses due to which her father, who is a businessman, gave around Rs 77 lakh to the man on different occasions.

The man was also given 501 gold sovereigns at the time of marriage as dowry, besides a flat and a car but he kept demanding money from her. During cross-examination, in her deposition, the woman also accused the appellant of forcibly having sexual intercourse with her when she was unwell, bedridden, and also on the day when her mother died. She also said that she was exposed to unnatural sex and compelled to have sex in front of their minor daughter. Apart from this, she said he always suspected her loyalty and made false allegations against her for having an illicit relationship.

Judgement- A division bench of Justice Mohammad Mushtaq and Justice Kauser Edappagath dismissed the appeal of a man who had challenged a family court’s verdict granting his wife’s plea for divorce on grounds of cruelty. The court declared that in married life, sex is a reflection of the closeness of the spouse. The evidence submitted by the woman establishes that she was going through all sorts of perversion against her desire when the husband thinks that his wife’s body is his property, which leads to marital rape. The bench upholds the family court decision that the husband was treating the wife as a money-minting machine.

The court said that an “insatiable urge for wealth and sex” of a spouse is also subjected to cruelty.

“In this case, the insatiable urge for wealth and having sexual relations by the husband had forced the wife to take a decision for divorce. His lustful and salacious conduct cannot be considered as part of normal conjugal life. Therefore, we have no difficulty in holding that insatiable urge for sex and the wealth of a spouse falls in the form of mental and physical cruelty. The right to respect for his or her physical and mental righteousness bounds bodily integrity, any disregard or violation of bodily integrity is a violation of individual autonomy,” said the bench.

The Kerala High Court bench also said that in a changed scenario of marriage in the society, moving from the social philosophy, we fear whether the present divorce law on enumerated grounds would stand to the test of constitutionality. The stability of individual choice and individual’s best interest is absent in such law.

The court held that “ the need of the hour is that divorce and marriage must come under secular law. Individuals are free to enact their marriage according to personal law, but they cannot get rid of the obligatory solemnization of the marriage under secular law. The time has come to upgrade the marriage law in our country. Our law should also be well equipped to deal with marital damages and compensation. We are required to have a law dealing with human problems with a humane mind to respond.”

The judges described this case as “ a story of a woman who is struggling within the clutches of law to prioritize not to suffer in the bondage of legal tie. Thus, the court said that the framework of divorce law must be with an aim to help individuals to make a decision on their own affairs. This framework must encourage a platform at different stages to enable individuals to exercise their free choice.

4.“Sexual intercourse by a husband with his wife is not rape, even if by force”- Chattisgarh High Court Judgement (2021)

Facts- In this case, the woman who is a complainant alleged that her husband and in-laws subjected her to abuse, cruelty and dowry harassment after some days of marriage. She suffered mental and physical torture from her husband and his family. She also accused her husband of inserting his finger in her genital parts, against her will. She also told that he had unnatural physical intercourse with her and sexually abused her. She said despite making so much effort in settling the differences between them, things didn’t go well and the only option left was approaching the court.

Judgement- The Chhattisgarh high court recently acquitted a man, 37 years of age from the charge of marital rape, saying that sexual intercourse with a legally wedded wife does not amount to rape even if it is forceful or against her will under the IPC. In this case, Justice N.K. Chandravanshi cited exception 2 of Section 375 of IPC which defines that a sexual cohabitation by a husband with his own wife and she is not minor does not amount to rape. Therefore the charge under Section 376 of IPC against the husband is illegal and erroneous. However, the judge upheld other charges against the accused which includes Section 498A (cruelty) against her husband and in-laws and Section 377 (unnatural offences, carnal intercourse against the “order of nature”).

VII. Conclusion

Thus, I think that there must be some law that would criminalise marital rape so that we can move a stride forward towards the road of development in the actual sense, after all, rape is rape be it by a stranger or husband. The women go through the same mental and physical agony.

The government, apparently, finds some peculiar connection between maintaining the institution of marriage and not criminalising marital rape. It is hard to get how marital rape is any less cruel than ‘triple talaq’ or ‘polygamy, for which the government passed certain laws. Such kind of mortifying steps of the centre reflects our inherent societal misogyny which for so many years leads to further oppression of women.

Exception 2 of Section 375 is ‘ludicrous’ in which the centre seems to be blind to a grave crime keeping one portion of the society as staggered just because the perpetrator is a husband.

In a country like India, a law for penalising marital rape is far from the reality as neither the lawmakers of this country nor the Indian judicial systems are ready to end the gap between rape and marital rape as they both are heinous crimes which could make the victim stained for life.


References

1. Law On Marital Rape – A Much Needed Reform In Our Legal System – Criminal Law – India, Available Here.

2. Sangamithra Logananthan, Marital Rape, Available Here.

3. Marital rape and Sexual intercourse- High Court Judgements, Available Here.

4. Indian Kanoon, Available Here.


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Updated On 2021-09-30T06:54:24+05:30
Saima Gous

Saima Gous

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