AMITY UNIVERSITY

_______
RAJASTHA
N_______

AMITY LAW SCHOOL

LOCAL SELF GOVERNMENT

RESEARCH PAPER

MARITAL RAPE

SUBMITTED TO: SUBMITTED BY:

Prof. Vishva Jeet Bhookar Bhavya Jain
Assistant Professor BA LLB(Hons.)
Constitution II. Semester – V
ALS – AUR A21511121040

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 MARITAL RAPE
-Bhavya Jain

ABSTRACT
The issue of marital rape in India is a complex and deeply entrenched problem within societal
norms and legal structures. Despite widespread occurrences of marital rape, it remains
unacknowledged in legal frameworks, perpetuating a culture of silence and impunity. This article
aims to advocate for the recognition of marital rape as a criminal offense within the Indian legal
system. It delves into the physical and psychological consequences of marital rape, emphasizing
the need for legal reforms to protect the bodily integrity and rights of women. Exploring the
types of marital rape prevalent in society—battering rape, force-only rape, and obsessive rape—
the article highlights the vicious cycle of abuse often perpetuated within such relationships. It
underscores the socio-cultural ideologies and legal ambiguities that contribute to the dismissal
and invalidation of marital rape experiences. The narrative shift from considering marital
intimacy as a husband's right to recognizing it as a violation of a woman's dignity is discussed,
alongside the challenges in altering ingrained societal perceptions.

Drawing attention to the lack of research and public discourse on marital rape, the article
underscores the urgent need for legislative changes, public awareness, and enforcement of
existing laws. Despite progress in criminalizing marital rape in various nations, the enforcement
of these laws remains inadequate, allowing perpetrators to escape punishment. This failure not
only perpetuates the trauma of victims but also hampers efforts to address the severity of marital
rape. In conclusion, the article advocates for a comprehensive approach involving legal reforms,
societal awareness, and a shift in cultural perceptions to combat the pervasive issue of marital
rape in India. It emphasizes the urgency of recognizing and addressing marital rape as a serious
criminal offense to protect the rights, well-being, and dignity of women within marital unions.

Keywords: Marital rape, India, legal ambiguity, societal perceptions, women's rights, sexual
violence, cultural stereotypes, policy changes, awareness, enforcement.

INDEX

[Link]. TOPIC
1. INTRODUCTION
2. TYPES OF MARITAL RAPE
3. Public Perceptions and Legal Ambiguity
4. LEGAL POSITION IN OTHER COUNTRIES
5. POSITION IN INDIA
6. Criminal Law Aspect:
7. The Psychological Trauma of Marital Rape
8. Time to Take Action
9. REBUTTAL OF ARGUMENTS AGAINST CRIMINALIZATION OF
MARITAL RAPE
10. LACUNAE IN INDIAN LAW

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 11. CONCLUSION

INTRODUCTION

The holy institution of the legal marriage of two individuals scooped out for one major Indian
movie arena exists as a false tale and happens contrary to female human comprehension of the
truths of existence. Though marital rape is a widespread and unpleasant manner of obtaining
pleasure from suffering in the Indian community, it is covered behind the quiet of the legal
uniting of two individuals. In India, social practices and permissible rules work together to
enforce the denial of belief in women's intercourse instrumentality and bodily wholeness, which
are at the foundation of man's female human rights. Rape does exist. Whether it be stranger rape,
an act of rape perpetrated by a friend, or marriage rape, the rule does not consider marital rape to
be a criminal offense. Even if it acts, the subject of punishment is sidelined by a fog of
acceptable doubt. The permissible framework must recognize rape within a union as a criminal
act. Furthermore, feminine humans must break free from societal restraints and uphold
lawfulness. They must refuse to obey the flag employed by the ruling class to represent the
weaker interaction between animate creatures. This effort will attempt to put in jeopardy the
discrimination, weakness, and misunderstanding of the criminal person who oversees the court of
law in India about marriage rape. It continues to give evidence of support and arguments why
prosecution for marriage rape is important.

Within a union, it is not proper consent if a female human consents to make love under the
danger of damage to a very young person or herself. These intercourse activities include sexual
acts as well as overly orderly behaviour. Rape is an offense that occurs when the woman is not
present and has not given her permission. Or oral sex, obligatory concerning reproduction
behaviour accompanying distinct persons, and other intercourse activities that occur intentionally
as demeaning for the preyed upon. The offense of marital rape does not exist in sufficient
quantity to justify the principle of behaviour. Forced making love is an offense only when the
female human is living apart from her wedded guy as a result of a subsequent judicial break-up
or ritual. We have happened to demand political action for legislation to manage an offense;
nevertheless, before we can do so, we must first get (money) an enumeration of rape inside the
lawful joining of two individuals.

Injuries to private tools, lacerations, discomfort, bruises, divided power, tiredness, and vomiting
are all possible consequences of marital rape. Women who have been struck, damaged, and
attacked by their spouses may suffer extra physical consequences such as shattered, alive
skeletons, despairing eyes, bleeding noses, and knife wound wounds. Miscarriages, stillbirths,
infertility, and the potential drawbacks of sexually transmitted illnesses containing HIV are all
part of a gynaecological person's rape status. Tension, shock, acute terror, despair, post-
frightening stress, and suicidal ideation are some of the mental symptoms of marriage rape.
Long-term belongings frequently include issues with eating, sleeping, sadness, and the process of
showing a trustworthy relationship. Some survivors of marriage rape experience flashbacks and
sexual dysfunction in old age as a result of the violence's location or timing.
Marriage is an anthropological, cultural, and legal institution that establishes socially sanctioned
rights and obligations between individuals. In many cultures, marriage forms the basis for
acknowledgement of sexual relationships. However, sexual violence and physical aggression
within marriages have traditionally formed a grey legal area. Marital rape refers to “forcible
sexual assault or violence by one spouse towards the other.”1 In other words, it’s the act of
sexual inter- course with a spouse without his/her spouse’s consent. Though historically
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establishing sexual relationship between the married couple was considered as a “right” in many
societies, the context of consent becomes equally important as among nonmarried individuals.
Twentieth century onward, there has been growing international conventions and voices against
sexual and intimate partner violence in marriages (more specifically for sexual violence against
women).2 However, in spite of the known devastating consequences of any form of forcible
sexual encounter, marital rape has remained under the shadow of legal ambiguity in many
nations, outside the criminal law and widely tolerated.
Marital rape is mostly, but not exclusively, experienced by women. It tends to form a vicious
cycle of abusive rela- tionships between the couple, perpetuating chronic violence. This also
varies based on sociocultural and political ideologies. For example, the interpretations of the
institution of marriage, traditional ways of viewing male and female sexuality, and cultural
expectations of relationship dynamics among the husband-wife dyad have led to concerning
reluctance of classifying nonconsensual marital sex as a punishable crime. These doctrines
started getting challenged in the West between 1960s and 1970s during the “second wave femi-
nism” that focused on gender respect, autonomy, and right to self-determination (concerning all
matters of a women’s own physical self and identity).2 However, marital rape has been
overlooked in literature and policies throughout centuries and “marriage” being used as a
common exemption/defense in sexual assault cases. This has also led to invalidation of the
experiences of marital rape survivors, reduced help-seeking, and persistent trauma.

TYPES OF MARITAL RAPE

Legal academics have identified the following three types of marital rape as being widely
prevalent in society:

1. Battering rape:
In battering rape, women are subjected to both physical and sexual abuse in their
relationships, which manifests itself in a variety of ways. Some women are abused during the
rape, or the rape may occur after a physically violent event in which the husband seeks to
make amends by forcing his wife to have sex against her will. The vast majority of victims of
marital rape fall into this category.

2. Force-only rape:
Husbands employ only the amount of force required to coerce their wives in what is known
as force-only rape; beating may not be a feature of these marriages. The assaults usually
occur after the woman has declined to engage in sexual activity.

3. Obsessive rape:
Other women are victims of what is described as sadistic and obsessive rape, which
comprises torture and/or deviant sexual activities and is frequently physically violent.

Public Perceptions and Legal Ambiguity

Any form of forcible sexual encounter is considered as a harm to reputation, identity, and honor.
Article 27, Fourth Geneva Convention states, “Women shall be especially pro- tected against any
attack on their honor; in particular against rape, enforced prostitution, or any form of indecent
assault.” The change of narrative of rape from “family or husband’s right” to “a woman’s
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dignity” only started in the last half century. The concept of consent has long been neglected in
marriages. Yllö mentions in Understanding Marital Rape in Global Context, “In some cultures,
consent is not even some- thing that an individual can give. The families that arranged the
marriage guarantee her permanent consent. “Though this has been challenged in several ways, it
is still reinforced by popular media stereotypes and rape myths. One such dangerous proposition
is viewing a women’s virginity as a “commodity” which is gained or surrendered during
marriage. Hence, the husband is considered to be “owning” his wife’s sexuality and thus cannot
be charged as having a nonconsensual sexual encounter or intimacy. Another such cultural
stereotype is considering the sole purpose of marriage as procreation which makes sexual
intercourse in any form “expected.”
Cultural and legal invalidation further make marital rape victims helpless and reduce access to
health services. Basile stated that 80% women feel that their husbands use some form of “force”
to have sex but are reluctant to disclose. Marital rape has not been considered to be “real rape”
and hence stay hidden from legal purview in spite of the adverse physical and mental health
consequences. Compared to the other scenarios of rape, marital rape is less likely to be
considered as a crime. This study also showed that the victim-perpetrator relationship was the
primary consideration for nearly one-third for deciding guilt and sentencing. As the offender-
victim relationship gets more intimate in sexual assaults, attribution of blame to the victim is
more perceptions related to harm reduce and there is lesser likelihood that the alleged incident is
considered as rape. Ferro et al assessed the perceptions of college students and alumnus
regarding rape myths and marital rape. A hypothetical rape scenario was presented and measures
of rape acceptance were tested. Out of all the stereotypes, marital rape myths were stronger and
more commonly endorsed. A marital relationship was commonly considered to be an
“exception” to forcible sexual encounter. Such findings have been present in earlier studies as
well,8,10 where students have supported “sex role stereotypical attributions” and shared rape-
supportive ideologies as the degree of acquaintance between the offender and victim became
closer. Ironically, at the time of this editorial, we could not find recent research related to marital
rape or marital rape survivors. The limited earlier literature is also skewed toward the Western
nations. This is of concern as such incidents in low-and-middle-income countries are often
grossly underreported due lack of specific legal provisions, using marriage as a defense, fear of
legal hassles, lack of social support, and existing social stereotypes.
From the 20th century onward, most nations have criminalized marital rape. This has occurred
through various ways: judicial decisions, removal of “statutory exemptions,” explicit legislative
mention, or creation of a specific offense of marital rape.2,11 The traditional view of “marriage
itself implying sexual consent” is outdated and in many cases the common allegation is that the
“promise of marriage” itself serves as an “unspoken consent” for sexual interactions. This is
different from informed consent when adults agree to have sex either out of desire, love, or trust.
The sustaining factors for marital rape are legal grey areas, lack of tailored policies, cultural
invisibility, social myths on marriage and sexuality, popular media stereotypes, misinterpreted
religious ideologies, gender expectations and importantly, and lack of research in this area.4
Criminalization of marital rape also does not essentially mean that these laws are enforced and
there are several lacunae. Lack of public awareness adds to this and often the perpetrators go
unpunished. This fails to set an example as to how serious marital rape can be. For example,
even though during the ongoing unprecedented COVID-19, intimate partner violence and marital
discord have been on rise and we have all faced distress calls in our helplines, explicit discussion
about marital rape in social media, or academic literature has been sparse.

LEGAL POSITION IN OTHER COUNTRIES

Married in the United States, researchers estimate that 10–14% of married women rape
fashionable legal partners. Despite the prevalence of marriage rape, this question bears

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comparison, receiving little consideration from public scientists, experts, the criminal fairness
structure, and larger organizations all at once. In 1993, concerns and happenings made
prosecution fashionable in many of these thirty-three states. The life of a few spousal exemptions
in the majority of states displays that rape, the fashionable legal joining of two people, is still
considered an inferior offense against the law compared to other forms of rape. In England,
earlier, as a common rule, a male human fire from a job did not exist and was not expected to be
guilty as a principal of rape upon a welcome married woman, for the married woman is usually
able to take back the consent to making love that is a part of the contract of a union.
The rule that a married man cannot act inappropriately by raping his married woman if he makes
her have sex against her will exists as an obsolete and offensive common-society made-up story
that does not present the position of a married woman in the present institution. Corresponding
corrections to the sanctioned principle of behaviour were fashioned through Section 147 of the
Criminal Justice and Public Order Act of 1994. This fate happens in addition to declaring the
truth of something by the European Court of Human Rights fashionable the conclusion of SW v.
UK. The European Court of Human Rights ruled that skilled is no prominent fashionable
standard expected tense middle from two points sexual defilement fashionable legal joining of
two people and except for legal joining of two people. In New Zealand, the marital rape freedom
from responsibility happens to do away with or put an end to when Section 128 of the Crimes
Act, 1961, is enacted. For example, the Government of Cyprus, in a fashionable allure offering to
the Special Rapporteur, reports that its law in contact with the Prevention of Violence related to
previous family or family traits and Protection of Victims, given in June 1993, to purify, that is,
rape, without regard to whether it exists, committed inside or outside legal joining of two people.

If we examine the laws in different countries, we see that most countries punish rape within and
outside marriage. In Australia, for example, once a person reaches the age of 16, he or she can
petition a court or magistrate for an order permitting him or her to marry. 1 By 1991, however,
every state in Australia had repealed the marital rape provision. A person under the age of 20 but
over the age of 16 in New Zealand can only marry with parental authorization. Women's sexual
consent age is likewise 16 years.2 The Crimes Act, 1961, of New Zealand makes no provision for
marital rape.3 In 1985, the marital rape exception was repealed. 4 In the United Kingdom,
marriages between minors under the age of 16 are null and invalid. 5 In 1991, the marital rape
exception was completely repealed. In Egypt, the age of majority is 21 years old for all legal
reasons except marriage. The consenting age is 18 years. 6 Furthermore, the criminal code
defines intercourse with a female under the age of 18 as rape. 7 Various states in the United States
have different laws. The marital rape exemption has been repealed in all 50 states in the United
States. In Indonesia, the age of majority and marriageable age for girls is 16 and 19 for boys. 8
For a female, the age for legitimate permission to perform a sexual act is similarly established at
16 years. Any marriage formed before the legal age is null and invalid. 9 Domestic violence law
in Indonesia additionally punishes a member of the family who forces sex on another member of
the household with a maximum punishment of 15 years in prison.10

1
The Australia Marriage Act, 1961, with amendments up to act No. 46 of 2006, Part II, 11, visited on April 10, 2010
2
Marriage Act 1955, visited on April 2010
3
Crimes Act 1961, Section 128, Clause 4. jump=a1961-043%2fs.128&softpage=DOC#JUMPDEST_a1961-043/s.128>,
visited on April 2010
4
Mishra, Saurabh and Sarvesh Singh, Marital Rape: Myth, Reality and Need for Criminalization (2003), Practical
Lawyer WebJour 12, visited on April 2010
5
Marriage Act 1949, Halsbrury’s Laws of England, 4th Edn. Reissue, Vol. 29(3), p. 41
6
UNICEF Website, visited on April 2010
7
CEDAW Egypt, supra note 38, p.16
8
Article 16, CEDAW Indonesia Country Report (27 July 2005), p. 57
9
Ibid., p. 58
10
Amnesty International, Indonesia: Exploitation and abuse: the plight of women domestic workers

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POSITION IN INDIA

In India, concerning marriage, rape survives de facto but not de jure. While fashionable
additional political territory, be either the legislature bear criminalized concerning marriage rape
or the judges bear played a having movement function fashionable recognizing it as an offense,
fashionable India still, the judges seem expected to operate antagonistic. In Bodhisattwa Gautam
v. Subhra Chakraborty, the Supreme Court pronounced that rape is a crime against the
fundamentally cherished victim's rights of man and a defilement of the victim's most cherished
of fundamental rights, that is to say, the right to existence, which is held sacred in Article 21 of
the Constitution. Yet it contradicts this very declaration by not admitting marriage rape. Though
there is the extreme physical force of a few advances in Indian law concerning household
violence, this bear is, for the most part, limited to physical, or sex crime. Women, the ones who
experience and wish to challenge reproduction, are subject to extreme behaviour (1860) A
responsibility may be traced back to the charge created by Sir Matthew Hale, C.J., fashionable
17th-century England.

This conclusively proved the idea that, once only married, a woman is not entitled to refuse male
or female gender accompanying her married man. This admits the husband’s rights to sexually
approach their married woman, a violation of the standard of man's rights, and provides
husbands with a license to rape their married woman. Only two groups of married female human
beings exist below the rape legislation: those of essential nature below the age of 15 and those
who are separated from their husbands. While the rape of a young female person under 12 years
of age is illegal, adults concede the possibility of human exploitation by the government, ritual,
or some custom. However, this is only a bit-by-bit law of the government, and much more needs
to be agreed upon by Parliament concerning the issue of marriage rape. When the Law
Commission, in the Allure 42nd Report, publicly supports or causes the addition of making love
by a male human accompanying a minor wife as an offense, it happens to be visualized as a
beam of hope. The Joint Committee that inspected the suggestion sent away the
recommendation. The Committee contends that a married man should not be found at fault for
raping a welcome wife if anything exists at her age. When a male human marries a female
human, intercourse between animate beings also happens. Many female human arranging and the
National Commission for Women bear the burden of demanding the erasure of the irregularity
provision in document fashionable Section 375 of the Indian Penal Code that states that making
love by a man accompanying his own married woman, the married woman not being a secondary
fifteen-year-old adult, happens not rape. As per the advice, the Law Commission's projected
definition of a sex crime may be to choose or take something as one's own, or the existent
description of rape in Section 375 of the IPC, as it happens, is of course inclusive and agreeable.
However, like the Law Commission, the Task Force, in addition to at a halt short of approving
the addition of concerning marriage rape fashionable, As of now, society in India is exclusively
incompetent and fashionable, providing an upholding system for women to exercise bodily
purity and intercourse independence.
India is one of the 36 countries that has still not criminalized marital rape. Over the years, the
exemption to an unwilling sexual intercourse between husband and wife (above 15 years of age)
in IPC Section 375 has been widely debated and argued against.14 According to the Hindu
Centre for Politics and Public Policy, legal ambiguity about “consent” in sexual violence within
marriage is commonly decided by mediation and com- promise rather than legal discourse.15 It
has been argued that the concept of “obligatory sexual interaction” by the virtue of marriage is
against Article 14 (Right to Equality) and Article 21 of the Constitution. India has over the years
seen legislations like “The Protection of Women from Domestic Violence Act, 2005” and “The
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act” for the
enhanced protection and safety of women. After the inhumane Nirbhaya incident in Delhi and
the Criminal Law (Amendment) Act (2013) failing to address the issue of marital rape, the

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appeals from myriads of women-organizations, human rights associations, and finally the Justice
Verma Commission recommendation of criminalizing marital rape have set more fuel to the
fire.16 As the number of rape cases in India are increasing as per the National Crime Records
Bureau, many incidents of marital rape are unreported.17,18 As of now, the exemption still
holds, and “marital rape” is considered to be a grey area; to be assessed and understood in the
individual context and in light of inter- personal relationship between the couple taking into
account any history of domestic abuse.
Yllö and Torres19 mention that “...marital rape is regularly constituted across cultures as a
locally recognized social violation—one that is understood to impede women in those particular
cultural contexts from aspiring to a good human life.” Unfortunately, this form of violation is not
a 1-time event and tends to form a part of chronic abusive relationships. One can only imagine
the unspoken distress of multiple sexual assaults that occur behind closed doors and are
normalized by the society under the pretext of marriage. This can be emotionally and physically
devastating and often beyond the reach of social and health care. Disclosure rates will also
understandably be low. Ultimately, marriage signifies a socioemotional bond between
individuals which also entail respect, trust, and love. Sexual encounter without consent tends to
be emotionally blunt and physically brutal which is fundamentally against the institution of
marriage and has several harmful biopsychosocial consequences. In fact, whether marital rape
takes place once or is part of an established pattern of domestic violence, trauma from rape has
serious long-term consequences for victims regardless of whether the assault is prosecuted or
not.

Criminal Law Aspect:

The IPC defines rape under sec. 375. The definition of rape under the Penal Code does not take
into account marital rape. It can be observed that the definition only covers two groups of
married women- the ones who are below the age of 15 years and the ones who are separated
from their husbands. Under Section 376-A added in 1983 in the IPC, 1860, rape of judicially
separated wife was criminalized. It was an amendment based on the recommendations of the
Joint Committee on the Indian Penal Code (Amendment) Bill, 1972 and the Law Commission of
India. Thus, a husband can be indicted and imprisoned up to 2 years, if firstly, there is a sexual
intercourse with his wife, secondly, without her consent and thirdly, she is living separately from
him, whether under a decree or custom or any usage. Otherwise, a man is not liable for any
sexual act that he forcefully performs on his wife (except sodomy), unless they are living
separately under a decree of separation.
According to the Indian Penal Code, 1860, it is rape if there is a non-consensual intercourse with
a wife who is aged between 12 and 15 years. However, the punishment may either be a fine or an
imprisonment for a maximum term of 2 years or both, which is quite less in comparison to the
punishment provided for rape outside the marriage. Otherwise, a man is not liable for any sexual
act that he forcefully performs on his wife (except sodomy), unless they are living separately
under a decree of separation despite the fact that the wife may be subjected to much sexual
humiliation.
Thus, rape in India is a grievous offence, but it is an offence that is recognized only outside the
boundaries of marriage. In India, marital rape exists de facto but not de jure i.e., the definition of
rape under section 375 of Indian Penal Code does not include marital rape as a criminal offence.
Exception 2 of section 375 states that Sexual intercourse by a man with his own wife, the wife
not being under fifteen years of age, is not rape. This is based on the notion that once married, a
woman does not have the right to refuse sex with her husband. This gives husbands the right to
have sexual access over their wives in direct contravention of the principles of human rights and
provide husbands with a licence to rape their wives.

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The Psychological Trauma of Marital Rape
Marital rape inflicts severe psychological trauma on survivors, leaving lasting emotional scars
that extend far beyond the initial act of violence. The unique dynamics of marital relationships
amplify the impact, as trust and intimacy, typically seen as pillars of such partnerships, become
twisted into instruments of betrayal. In examining the psychological aftermath of marital rape,
several key aspects come to light.
Betrayal and Breach of Trust: At the core of the psychological trauma lies the profound betrayal
experienced by survivors. Marital rape ruptures the trust that is expected within the confines of a
spousal relationship. The person whom the survivor should be able to rely on for love, support,
and security becomes the source of profound harm, creating emotional wounds that are
exceptionally deep.
Shame, Guilt, and Self-Blame: Survivors often grapple with intense feelings of shame and guilt.
Societal expectations and misconceptions surrounding marital relationships can lead survivors to
internalize blame, questioning whether they somehow provoked or failed in their role.
Overcoming these self-imposed burdens is a critical step toward healing.
Emotional Impact: The emotional toll of marital rape is profound, often resulting in conditions
like depression and anxiety. Survivors may struggle with a range of emotions, from anger and
fear to deep sadness. The emotional aftermath can persist long after the physical injuries have
healed, impacting the survivor's overall well-being.
Post-Traumatic Stress Disorder (PTSD): Marital rape frequently leads to the development of
PTSD, marked by intrusive thoughts, nightmares, and flashbacks related to the traumatic event.
The survivor may experience heightened levels of anxiety, hypervigilance, and emotional
numbness, further complicating their ability to navigate daily life.
Social Stigma and Isolation: Societal stigma surrounding sexual assault, combined with the
private nature of marital rape, can contribute to the survivor's isolation. Fear of judgment,
disbelief, or blame may lead survivors to withdraw from social interactions, intensifying the
emotional burden they carry.
Challenges in Reporting and Legal Proceedings: Survivors of marital rape often face obstacles
when reporting the crime or pursuing legal action. The difficulty of navigating legal proceedings,
coupled with potential societal disbelief or victim-blaming, can traumatize the survivor and
discourage them from seeking justice.
Marital rape is a form of domestic violence and sexual abuse where one spouse engages in sexual
intercourse with the other without their consent. It can occur in various forms, including physical
violence, intimidation, or when the victim is unable to give consent. Despite its prevalence,
marital rape remains one of the least reported forms of domestic violence due to societal norms,
stigma, and the legal system’s failure to recognize it as a crime. Marital rape is a violation of
trust and consent, the two pillars that form the foundation of a marital relationship. It shatters the
sanctity of marriage and leaves the victim with deep psychological and physical scars.
Society’s attitude towards marital rape in India is often characterized by denial and silence. The
patriarchal norms prevalent in Indian society view marriage as a sacrosanct institution where the
husband is entitled to sex, and the wife’s consent is often deemed irrelevant. This mind-set not
only perpetuates the cycle of violence but also discourages victims from speaking out. The fear
of social stigma, ostracization, and the potential breakdown of the marriage often forces victims
to suffer in silence.

Time to Take Action

There have been several welcome moves in India in this regard. In Independent Thought vs
Union of India, the Supreme Court held that, “Constitutionally female have equal rights as of

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male and no statute or act can take away those rights from females and if such statute or an act is
passed regarding the same, it should be declared as null and void.”20 The Gujarat High Court
has mentioned in this regard, “The total statutory abolition of the marital rape exemption is the
first necessary step in teaching societies that dehumanised treatment of women will not be
tolerated and that the marital rape is not a husband’s privilege, but rather a violent act and an
injustice that must be criminalised.”21
However, there is a long way to go. Specific legal provisions, widespread public awareness,
media cooperation, inclusion of the voices of survivors, and tailored social services are urgently
needed to eliminate the nuisance of marital rape. The legal and social paradox related to marital
rape in our country have led to several structural inequalities and gender- based vulnerabilities.
As per Nigam, “the culture of silence, tolerance, adjustment, compromise among women is
propagated to save and respect the honour, the pride and the values of the Indian family
overlooking the fact that incest, violence, suicides and murders are the price that women pay.”22
According to the United Nations Declaration on the Elimination of Violence against Women,
violence against women is defined as “any act of gender-based violence that results in, or mental
harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of
liberty, whether occurring in public or private life.”23 In light of the above, the old redundant
laws related to rape in our country need urgent modification to prevent this violence behind
closed doors. Rape is rape, irrespective of the victim-perpetrator relationship/intimacy as well as
circumstances of the assault. Marriage cannot and will not serve as a license for the same.
Marital rape is in no way less traumatic than other forms of sexual violence. Hence, it is high
time we change the social narrative about marital rape by public education, advocacy, battling
social myths, lived experience research, and finally a constructive dialogue with policymakers to
make the necessary legislative changes.

REBUTTAL OF ARGUMENTS AGAINST CRIMINALIZATION OF MARITAL RAPE

The following are some of the most prevalent reasons raised in opposition to the notion and
proposal of criminalizing marital rape: There is no need for legislation to address marital rape
because it is so rare.

 Why because it is nearly impossible to prove marital rape, criminalizing it would just add
to the already overcrowded court system.
 Dissatisfied, furious, and spiteful women may charge their innocent husbands with
marital rape.
 When a woman marries a man, there is implied permission to have sexual intercourse.
 Marital rape laws would ruin many marriages by making it impossible to reconcile.

A detailed examination of these linguistic battles reveals that they are unquestionably fantasy,
pitiful excuses for a male-ruled upper class of people devoid of any legitimate essence or moral
strength. A counterargument to the above-mentioned support presentation is not difficult.
According to research conducted by an NGO, one in every seven married female humans has
been attacked by their husbands in the past. They regularly fail to disclose these rapes since the
law does not support them. The prosecution of concerned marriage rape fashionable marriage has
a restraining impact on possible assailant spouses.
The fact that facts about marriage rape are difficult to prove is no reason not to declare it a crime.
In response to the second issue, it is recognized that the potential is obvious: while prosecuting a
claim of rape in the legal joining of two individuals is difficult, establishing a stated allegation
and laying responsibility will be considerably more difficult. Because of the societal stigma
10 | P a g e
associated with rape cases, it is uncommon for a girl to face such trouble. Furthermore, the
criminal justice system includes protections such as the need for verification beyond a reasonable
doubt. This is not a justification to completely deny victims' guardianship because someone may
finalize for dress products a fabricated case presented to a recognized court. In terms of one of
four equal parts efforts to persuade, it is true that a wife implicitly consents to making love with
her husband following in position or time legal joining of two people, but the facial appearance
of love through sexual closeness between people does not exist in the same forced male or
female gender. On the other hand, it attacks the long-established institution of marriage,
regardless of whether the legal union of two individuals is a rite or a contract. By no stretch of
the imagination can it be said that one consent to damage or violence by a union, and neither act
nor principle of behavior allows any individual to provide particular consent. Holding back a
union by withholding a person who controls a court of law and disagrees on equal protection for
marriage care, not totally, may be an inappropriate goal of regulation. The law does not
guarantee compelled cohabitation and does not protect a raped married guy. Attempting to keep
marriages together may be associated with the purposes of marital regulation, but it cannot
substitute for the primary goal of law, which is typically criminal regulation.

LACUNAE IN INDIAN LAW

The entire court system regarding rape is riddled with inconsistencies. The fundamental legal
problems that prohibit women from being empowered against marital rape are as follows:
1. It is now the case that the irregularity found under Section 375 of the Indian Penal Code,
1860, occurs in a manner that contradicts Article 21 of the Constitution. Marital rape
unquestionably violates a female human's right to suffer nobility, and as a result, it is
argued that the division occurs within the scope of this item.
2. When it comes to rape protection, Section 375 of the Indian Penal Code, 1860,
discriminates against a wife. Article 14 of the Constitution safeguards a person against
discrimination by the state. The exclusion given by Section 375, on the other hand, is not
a legitimate categorization and contradicts the protection afforded by Article 14.
3. Though the protection of women's dignity is a basic obligation under the Constitution,
imposing a duty on every citizen to abandon practices insulting a woman's dignity, it
appears that domestic violence and marital rape do not fall under the notion of dignity.
4. Because consent to marriage includes consent to sexual contact, a husband cannot be
jailed for raping his wife. This implies that having sex whenever, wherever, and in
whatever manner is an implied term of the marriage contract.
5. The Indian Penal Code, of 1860, defines rape as non-consensual intercourse with a wife
between the ages of 12 and 15 years. The punishment is either a fine or imprisonment for
a maximum of two years, or both, which is far less severe than the sentence for rape
outside of marriage.
6. Although supporters of women's rights gained a clause in 1983 making it illegal for a
man to have sexual relations with his separated wife pending divorce, judges remain
hesitant to condemn spouses despite the law.

 Suggestions for reform in light of the above discussion, the following suggestions are
made:

 Marital rape should be made a crime under the Indian Penal Code by Parliament.

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  The sentence for marital rape should be the same as for rape under Section 376 of the
Indian Penal Code.
 Punishment, the fact that the parties are married should not lighten the punishment, nor
should the fact that the woman did not fight back and resisted aggressively or yelled and
shouted be used as a defence to the accusation.
 If the claim of marital rape is proven against her husband, the woman should be able to
get a divorce judgment.
 Though marital rape may come under cruelty or rape as a reason for divorce, it is best to
have the legal situation clarified.
 Divorce may be an option for the woman, but if she does not want to divorce and wants
to stay in the marriage, the marriage should be allowed to continue.
 Matrimonial laws should be amended to reflect this.

CONCLUSION

It is recognized that altering the legislation on sexual offenses is a complex and sensitive
procedure, particularly in a country like India, where there is a diversified and distinct system of
personal and religious laws that may conflict with the new amendments to the statutory criminal
law. This research paper aims to explore the complex and sensitive issue of marital rape by
examining its forms which are seen in India. The legal position about marital rape in India as
well as other countries such as U.S and the Rebuttal of arguments against criminalisation of
marital rape, the criminal law aspect and the lacunae in Indian law. The issue of marital rape in
India is complex, involving deeply ingrained societal norms, legal challenges, and concerns
about potential misuse of the law. While it is crucial to address the misuse of laws, it is equally
important not to deny justice to genuine victims. A balanced, nuanced approach is needed, one
that respects the rights of all parties involved and aims to promote justice, gender equality, and
the dignity of women. The journey towards a society free from marital rape is long and
challenging, but it is a journey that we must undertake for the sake of justice and equality. As we
move forward, let us remember that the change we seek begins with us – with our attitudes, our
willingness to speak out, and our determination to demand justice for all victims of marital rape.
The urgent demand is that marital rape be made a crime under the Indian Penal Code.
Furthermore, considerable adjustments to the statute governing sexual offenses are required. It is
not recommended that the framework for sexual offenses be entirely restructured. The whole
public must be informed about this crime, as the actual purpose of criminalizing marital rape can
only be achieved if the entire public is educated about it.

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