Marital Rape: The Uncriminalized Crime in India
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AUTHOR : MANSI PATEL
Introduction
Marriage in India is often regarded as a sacred bond, but within this institution, many women silently suffer from sexual violence at the hands of their husbands. When sexual intercourse takes place without the wife’s consent, it constitutes rape—irrespective of the relationship between the victim and the offender.
However, under Indian law, marital rape remains uncriminalized, reflecting a deep-rooted patriarchal mindset and a significant gap in the protection of women’s rights.
Legal Position in India
Under Section 375 of the Indian Penal Code (IPC), sexual intercourse without consent is defined as rape. However, Exception 2 states:
“Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
This legal exception grants immunity to husbands, denying married women legal protection against sexual violence by their spouses.
In Independent Thought v. Union of India (2017), the Supreme Court raised the age of protection from 15 to 18 years, offering some protection to minor wives. Adult women, however, remain unprotected.
Constitutional and Human Rights Perspective
The Constitution of India guarantees:
Article 14: Right to equality before the law
Article 15: Prohibition of discrimination on grounds of sex
Article 21: Right to life and personal liberty
Non-criminalization of marital rape violates these fundamental rights. It also contravenes India’s international obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), ratified in 1993.
Judicial and Societal Challenges
The notion that marriage equals consent persists in society.
Women hesitate to report due to fear of social stigma and family pressure.
The judiciary has recognized the issue but often defers to the legislature for reforms.
In 2022, the Delhi High Court delivered a split verdict on marital rape, highlighting the lack of consensus on the matter.
Comparative Perspective
Many countries including the United Kingdom, United States, Canada, Nepal, and Australia have criminalized marital rape.
India’s failure to do so positions it behind global standards of gender justice and human rights.
Key Features of Marital Rape Issue in India
Feature | Description |
Legal Exception | Section 375 IPC exempts husbands from punishment for non-consensual sex with their wives. |
Violation of Rights | Violates equality, dignity, and bodily autonomy of women. |
Social Taboo | Victims rarely speak out due to cultural and social pressure. |
Judicial Concern | Courts acknowledge the problem but seek legislative reform. |
Global Contrast | Many nations have criminalized marital rape, recognizing consent within marriage. |
Way Forward
Legislative Reform: Remove Exception 2 under Section 375 IPC.
Gender Sensitization: Train law enforcement, judiciary, and public on consent and gender equality.
Awareness Campaigns: Educate society about the importance of consent in marriage.
Support Mechanisms: Strengthen counseling, legal aid, and helplines for survivors.
Judicial Activism: Courts should interpret Article 21 to ensure protection of bodily integrity.
Conclusion
Marital rape is a violation of human dignity, equality, and personal autonomy. The sanctity of marriage cannot justify sexual violence.
True marital harmony can only exist where there is mutual respect and consent.
As future lawyers, it is our responsibility to advocate for a progressive legal framework that upholds justice, equality, and the right to say “no”—even within marriage.
