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  • 19 September, 2022

  • 8 Min Read

The criminalization of Marital Rape

The criminalization of Marital Rape

The Supreme Court has requested the Center's response on the criminalization of marital rape.

Details about the news:


  • Regarding the question of making marital rape a crime, the top court is now hearing several petitions.
  • The marital rape exception under Section 375 IPC (rape) was challenged by the petitioners on the grounds that it discriminated against married women who are sexually attacked by their husbands.
  • The appeals come after the Delhi High Court issued a divided ruling on whether or not to charge spouses with having extramarital affairs with their wives.


The problem:

  • The problem centers on the Indian Penal Code's exception to the general rule against rape, which disallows the notion of rape within marriage.
  • Whether or not a married woman has bodily autonomy is one of the issues brought up.
  • In other words, whether a husband should respect his wife's "no means no" rule and recognize that any infraction would be considered rape.

Delhi High Court decision

  • In a divided decision, the Delhi High Court Bench favored eliminating the marital rape provision as "unconstitutional."
  • The court ruled that it would be "tragic" for a married woman's request for justice to go unanswered even after 162 years following the IPC's passage.

Arguments against making rape in marriage a crime

  • Destabilize the institution of marriage: It can bring about complete anarchy in families and undermine the institution of marriage.
  • Misuse of the law: It might be utilized in the same way that section 498A of the IPC, which prohibits harassment of married women by their husbands and in-laws, is increasingly being misapplied to harass husbands.
  • After carefully reviewing the issue, the Indian Law Commission and the Parliamentary Standing Committee on Home Affairs did not recommend making marital rape a crime.

Implementation issues:

  • Criminalizing marital rape will lead to significant implementation problems with witness credibility and courtroom evidence, among others.
  • Diversity in Culture: Before making marital rape a crime, it is important to take into account that India faces special issues related to its large diversity, low literacy rate, and lack of financial empowerment for the majority of women.
  • Simply making marital rape illegal may not be enough to put an end to it because "moral and societal awareness" is crucial to putting an end to such an atrocity.

Arguments In Favor of Making Marital Rape A Crime

Women's Security:

  • It will make sure that women are protected from violent husbands, that they can get the support they need to recover from marital rape, and that they can protect themselves from domestic abuse and sexual assault.

Marriage is not a license:

  • A husband should not be allowed to brutally rape his wife without consequences just because they are married. A married woman also enjoys the same autonomy over her body as an unmarried woman.

Body Integrity is a fundamental part of Article 21:

  • Since Article 21 of the Constitution inherently protects a woman's right to bodily integrity and privacy, she has the right to refuse to have sex with her husband.
  • The Supreme Court has expanded the scope of Article 21 to encompass the sanctity of women and the ability to make decisions about sexual conduct.
  • Article 14: According to article 14, Indian women should be treated equally, and anyone, even a person's spouse, has no right to disregard their human rights.

Continual Torture:

  • In contrast to a woman who is raped by her spouse, a woman who is raped by a stranger bears the memories of a terrible attack for the rest of her life.

Global Application

  • There are some post-colonial common law nations that are aware of marital rape immunity.
  • Marital rape is now a crime in Australia (1981), Canada (1983), and South Africa (1993).
  • In 1991, the House of Lords in the UK overturned the exception.
  • The Lords held that the moment had come for the law to state that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim, in their historic judgment in the case known as R v. R.
  • After reviewing the decision, the European Court of Justice affirmed the Lords' judgment, describing it as a "foreseeable progression" of the law.
  • Marital rape was subsequently made illegal by UK law in 2003.

Rape in marriage:

  • When one spouse engages in sexual activity without the other's agreement, this is known as marital rape (or spousal rape).
  • Even though more than 100 nations now have laws against marital rape, India is one of only 36 nations that still do not.

Marital rape law

  • Rape is defined in IPC Section 375.
  • The section enumerates seven consent principles that, if violated, would be considered rape by a male.
  • However, a significant exemption is included in the provision:
  • It is not rape when a man engages in sexual activity with his own wife, provided that she is over the age of 18.

Way Forward

  • The belief that the wife is the husband's sole property is maintained by the continued exclusion of marital rape from the reach of criminal law.
  • Can the state actually intrude into a person's home?
  • Why keep the most horrific crime outside the reach of the State and its laws when it already does in cases of cruelty, divorce, and dowry demands? Why does the topic of marital rape continue to be unacceptable?
  • The Indian Penal Code has to be amended to make marital rape a crime.

Source: The Indian Express

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