Marital rape is a form of sexual assault where a spouse is forced, coerced, or manipulated into having sex without their consent. It occurs when one spouse engages in sexual activity with the other spouse without explicit and voluntary consent. In other words, it is when one partner uses physical force, threats, or emotional manipulation to engage in sexual acts with their spouse against their will.
Marital rape is a serious violation of a person’s bodily autonomy, dignity, and human rights. Marital rape laws and attitudes vary across cultures, but it remains a crime in many countries. It is important to recognize that sexual consent is a fundamental right. Hence, nobody including a spouse has the right to engage in sexual activity with another person without their consent. Vaginal interposition, anal intercourse, oral sex, and penetration with any object or bodily part are all considered forms of rape. Rape can be defined as any degree of penetration; ejaculation is not necessary. Moreover, in many jurisdictions, each penetration is a new rape and could result in consecutive.
Marital Rape refers to any sexual activity that takes place without the consent of one spouse in a marital relationship.
IPC criminalizes sexual assault and rape, but marital rape is not explicitly defined under Indian law. Section 375 of the IPC defines rape as “sexual intercourse with a woman against her will or without her consent,” and it does not exclude marital rape from its ambit. However, there is a caveat that marital rape is not considered a crime unless the wife is under 18 years of age or unless the couple is judicially separated or living apart due to a decree of separation or divorce.
The exception is based on the outdated idea that marriage implies permanent consent to sexual activity with one’s spouse. However, this is a violation of a woman’s bodily autonomy, dignity, and human rights. Women have the right to control their bodies and decide when and how to engage in sex, just like men. One of the biggest challenges in prosecuting marital rape in India is the lack of awareness and education about sexual violence, consent, and gender equality.
In recent years, there have been some positive developments in the legal landscape surrounding marital rape in India. In 2017, the Delhi High Court directed the central government to consider criminalizing marital rape, stating that “sexual autonomy is an essential part of personal liberty protected under the Constitution.” The court also noted that the exception in Section 375 of the IPC, which exempts marital rape from prosecution, is violative of the fundamental right to equality and dignity.
Types of Marital Rape
Understanding the various forms of marital rape is crucial to identify and addressing them properly. Here are some of the types of marital rape:
Forceful Marital Rape
This occurs when one spouse uses physical force, such as hitting, slapping, or choking, to engage in sexual activity with the other spouse against their will.
Coercive Marital Rape
This happens when one spouse uses threats, emotional manipulation, or intimidation to pressure the other spouse into having sex. The threat may include physical violence, emotional blackmail, or financial coercion.
Obligatory Marital Rape
This occurs when one spouse feels obligated to have sex with the other spouse even when they do not want to. It may happen due to cultural or social norms, religious beliefs, or marital expectations.
Marital Rape as a Result of Marital Problems
This can occur when there are underlying marital issues, such as infidelity, lack of communication, or unresolved conflicts. One spouse may use sex as a tool to control or punish the other spouse.
Marital Rape as a result of substance abuse
This can happen when one or both spouses are under the influence of drugs or alcohol. It may involve non-consensual or coerced sexual activity, or one spouse taking advantage of the other’s impaired state to engage in sex.
Marital rape violates bodily autonomy, dignity, and human rights, and everyone must recognize all forms as such. It is never acceptable for a spouse to engage in sexual activity with their partner without their explicit and voluntary consent, regardless of the circumstances or the type of marital rape.
LEGAL POSITION IN OTHER COUNTRIES:
The legal position of marital rape varies across different countries. While some countries consider marital rape a criminal offense, others do not recognize it as such. Here are some examples of the legal position of marital rape in different countries:
All 50 states in the US have criminalized marital rape, and it is considered a form of sexual assault. Marital rape is illegal, and consent is necessary for lawful sexual activity.
The UK criminalized marital rape in 1991. It is considered a form of sexual assault and is punishable by law. The consent of the victim is required for sexual activity to take place lawfully.
Marital rape was criminalized in Canada in 1983. Non-consensual sex is a sexual assault, and consent is necessary for lawful sexual activity.
India does not recognize marital rape as a crime explicitly and only criminalizes it in certain circumstances. As per Section 375 of the Indian Penal Code (IPC), marital rape is not considered a crime unless the wife is under 18 years of age or unless the couple is judicially separated or living apart due to a decree of separation or divorce.
Saudi Arabia does not recognize marital rape as a crime. In fact, it is legal for a husband to have sexual intercourse with his wife without her consent, as per the country’s interpretation of Islamic law.
Australia criminalized marital rape in the 1980s. It also considers marital rape as a type of sexual assault, and the victim’s consent is necessary for sexual activity to be lawful.
The Protection of Children from Sexual Offences (POCSO) Act is a law enacted in India in 2012 to protect children from sexual abuse and exploitation. The act defines different forms of sexual offenses against children, including penetrative and non-penetrative sexual assault, sexual harassment, and pornography.
While the POSCO Act does not directly address the issue of marital rape. But then also it is relevant in the context of protecting children from sexual abuse and exploitation, including within the context of marriage. The act criminalizes sexual offenses against children and provides stringent punishment for offenders. It also provides for the establishment of special courts to ensure the speedy trial of such offenses.
Correlation of POSCO Act & Martial Rape
POSCO Act applies to marital rape cases involving child sexual abuse by a spouse or relative. For instance, if a child is forced to engage in sexual activity by a step-parent or relative living in the same household, such an act would be covered under the provisions of the POSCO Act.
However, it is important to note that the POSCO Act does not cover cases of marital rape involving adults. As per the Indian Penal Code (IPC), marital rape is not recognized as a separate criminal offense, and it is only considered a crime in certain circumstances, such as when the wife is under 18 years of age or when the couple is judicially separated or living apart due to a decree of separation or divorce.
Therefore, while the POSCO Act is relevant in the context of protecting children from sexual abuse and exploitation, it does not address the issue of marital rape involving adults, and there is a need for the law to recognize marital rape as a criminal offense in all circumstances, regardless of the age of the victim or the marital status of the perpetrator.
LACUNAE IN INDIAN LAW
There are several legal gaps and lacunae in Indian law related to rape and marital rape. Some of the major gaps are as follows:
Definition of Rape
The definition of rape in the Indian Penal Code (IPC) is limited to penile-vaginal penetration, excluding other forms of sexual assault such as forced oral or anal sex. This narrow definition can lead to the underreporting of cases. Hence, a failure to recognize the full extent of sexual violence. The definition also excludes non-consensual sexual activity within a marital relationship, which can leave victims of marital rape without legal recourse.
Marital Rape Exception
The IPC has an exception to the offense of rape, which states that sexual intercourse by a man with his own wife, who is not under 18 years of age, is not rape. This exception legitimizes and condones marital rape and denies women the right to bodily autonomy and integrity. The exception is also discriminatory, as it denies married women the same protection under the law as unmarried women.
Lack of Gender-Neutral Laws
The Indian law related to rape and sexual violence is gender-specific, with the presumption that only women can be victims and only men can be perpetrators. This narrow definition excludes male victims and non-binary individuals who may experience sexual violence. This gap in the law can leave these groups without legal protection and remedy.
Burden of Proof
The burden of proof in rape cases in India is on the victim, which can be a significant barrier to justice. Victims often face social stigma, victim-blaming, and lack of support from the criminal justice system, making it difficult to prove the crime beyond a reasonable doubt. This burden of proof can result in a low conviction rate for rape cases and discourage victims from reporting the crime.
The punishment for rape in India is imprisonment for a term of seven years to life imprisonment. However, in cases of marital rape, the punishment is significantly lower or non-existent due to the marital rape exception. This inadequate punishment can send the message that sexual violence is not a serious crime and can further perpetuate the culture of impunity.
Current laws in India do not consider marital rape as a criminal offense. The legal framework related to marital rape in India is ambiguous and open to interpretation by the courts. Section 375 of the Indian Penal Code states that sexual intercourse between a man and his wife is not rape unless the wife is under 15 years of age. Section 376 of the IPC provides for punishment for rape, which includes imprisonment for a term of at least 7 years, which can extend to life imprisonment, or imprisonment for up to 10 years and a fine. However, this provision does not apply to cases where the victim is the perpetrator’s wife and is not under 12 years of age, in which case the punishment can extend up to 2 years.
Case Laws Relating to the Development of Marital Rape
Queen Empress v. Haree Mythee
In Queen Empress v. Haree Mythee, the court noted that when it comes to married women, the law of rape does not apply between husband and wife after the age of 15; even if the wife is over the age of 15, the husband does not have the right to disregard her physical safety, for example, if the circumstances be such that intercourse is likely to result in death. In this instance, the husband was found guilty under section 338 of the Indian Criminal Code for rupturing his wife’s vagina when she was eleven years old, which resulted in hemorrhaging and ultimately led to her death.
Saretha v. T. Venkata Subbaih
There can be no doubt that a decree of restitution of conjugal rights thus enforced offends the inviolability of the body and mind subject to the decree and offends the integrity of such a person and invades the marital privacy and domestic intimacies of a person, according to the Andhra Pradesh High Court’s ruling in Saretha vs. T. Venkata Subbaih.
If State-mandated sexual activity between a husband and wife violates the right to privacy, then nonconsensual sexual activity with a husband must also violate the right to privacy of the woman. Two people cannot establish a marriage’s rights, obligations, formation, or dissolution through a private contract. Marriage is not a prerequisite for losing one’s right to privacy.
State of Maharashtra v. Madhukar Narayan Mandikar
In the State of Maharashtra vs. Madhukar Narayan Mandikar, the Supreme Court made reference to the right to bodily privacy. In this instance, it was decided that the right to reject sexual activity belongs to the prostitute. Knowing that all rapes committed by strangers are now crimes and that all women, excluding wives, have received the right to have discretion over their bodies, which includes the ability to decline sexual activity and withhold consent.
Sree Kumar v. Pearly Karun
The Kerala High Court noted in Sree Kumar vs. Pearly Karun that even if the wife is subject to sexual intercourse by her husband against her will and without her consent, an offense under Section 376A of the IPC will not be attracted because she was not living separately from her husband under a decree of separation or under any custom or usage. The parties in this instance were still at odds about the terms of their divorce. Following that, the husband and wife came to a settlement and decided to keep living together.
The wife said that throughout her two-day stay with her husband, she was forced into having sexual relations against her will and consent. Hence, although de facto guilty of having done so, the husband was found not guilty of raping his wife.
Recent Landmark Judgment
Independent Thought v. Union of India
In a recent historic ruling (Independent Thought v. Union of India), the Indian Supreme Court limited the application of the country’s “marital rape exemption.” This post offers a succinct explanation of the ruling based on my dissertation study on rape prosecutions in India.
The Indian Criminal Code 1860 (IPC) defines rape as a variety of non-consensual sexual activities carried out by a male against a woman. Sexual actions are considered rape when the victim is under the legal age of consent (18 years), regardless of whether the victim gave consent (statutory rape). This clause recognizes children’s fragility by establishing the legal fiction that no one under the age of 18 is capable of giving sexual consent. The second exception to this rule made it clear that, unless the wife was under 15 years old (the “marital rape exception”), sexual actions between married couples were not covered by Section 375. A marriage between a woman under the age of 18 is illegal but voidable, meaning that the minor can approach the court to invalidate, it till she is 20 years old.
It is widely recognized that amending laws related to sexual offenses is a complex and sensitive matter, especially in a diverse country like India where personal and religious laws may conflict with the new amendments to the criminal law. While there is a need for significant changes to the existing laws on sexual offenses, it is not advisable to completely overhaul the current structure of sexual offenses. The laws should adjust to eliminate any existing inequities and make them gender-neutral.
Indian Criminal Code requires an amendment to criminalize marital rape in India. However, simply making the act unlawful is not enough. Educating and increasing awareness of this issue among the judiciary and police is necessary. Educating the general public about this crime is necessary to achieve the goal of criminalizing marital rape. It is crucial for society to address the widespread misconception that rape by one’s husband is not a serious crime.
Overall, while changing laws related to sexual offenses is a complex and difficult task, it is important to make the necessary adjustments to ensure that all forms of sexual violence are recognized as serious offenses, including marital rape. Education and awareness-raising efforts must also be made to ensure that the judiciary, police, and general public understand the gravity of this crime.
Suggestions And Recommendation
In my opinion, Marital Rape in India should be considered as heinous as other forms of rape because rape is always a crime, irrespective of the circumstances or the perpetrator’s identity. Marriage does not imply ownership of one’s spouse. Indian law, as per IPC section 375, does not categorize marital rape as a crime or rape. It is unacceptable for any spouse, regardless of their gender, to force themselves sexually on their partner.
In Indian society, marriage is often misunderstood, and some men believe that after marriage, women become their property, leading them to believe that they have superior authority over women. This attitude is unacceptable, and criminalizing marital rape is a matter of personal choice, in line with the Indian Constitution’s provision for freedom of choice. Failure to do so violates the constitutional rights and remedies provided to Indian citizens.
In a free society, we need to move past the archaic notion of feeling embarrassed to discuss or have private conversations about sex-related issues. Sex education or other awareness-raising measures can help reduce or eliminate the issues surrounding sex or sexual relationships. In the 21st century, we talk about gender equality, the right to privacy, and the freedom of choice. However, failing to consider marital rape as a crime or rape is a cultural anomaly that defies comprehension.
Regardless of the circumstances, rape is always a serious crime. Using the excuse that because we are married, we are free to engage in whatever kind of sexual or physical connection we like is reprehensible. There is nothing more repugnant than disregarding the term rape, which refers to a crime
 What is rape?, available at:https://criminal-law.freeadvice.com/criminal- law/violent_crimes/sexual_offenses_rape.htm, (Visited on November 14, 2022).
 Queen Emperess vs Haree mythe (1891) ILR 18 Cal 49
 Saretha v. T. Venkata Subbaih
 State of Maharashtra v. Madhukar Narayan Mandikar
 Sree Kumar vs. Pearly Karun
 Marital doubt and uncertainty, available at:https://indianexpress.com/article/india/meet-anam-marital- rape-survivor-criminal-offence-Delhi-high-court-4847094/(Visited on November 13, 2018).
13 State Of Maharashtra And Another vs Madhukar Narayan Mardikar AIR 1991 SC 207, 1991 (61) FLR 688, JT 1990 (4) SC 169, (1991) IILLJ 269 SC, 1990 (2) SCALE 849, (1991) 1 SCC 57, 1991 (1) UJ 109 SC
 Independent Thought v. Union of India Writ Petition (Civil) No. 382 OF 2013