AUTHOR: SASWATI BARAI, AMITY UNIVERSITY KOLKATA, WEST BENGAL

Marriage is a legally and socially sanctioned union, traditionally between a man and a woman, regulated by laws, customs and societal norms that defines the rights and duties of the partners and confers status on their off springs. 

India is a country with rich beliefs and cultural values. Where we promote spirituality, in the past we have seen that people used to believe in equality. Equality with respect to both men and women. In India where marriages are being seen as a sacred bond between two individuals which eventually gives them legitimacy for being together with one another spending time fulfilling their rights and duties and having children.

Rapes and sexual assaults can take various forms. Most of the times we have seen that a woman is being raped randomly by the strangers, family members or even by their own partners. Women get married with a beautiful hope of living together with their husband and making a family of their own. But think when that husband sexually rapes the woman shattering all the hopes which the women have. 

And they even cannot tell their parents because they eventually say that “it's okay because it's your husband.” Because of which many women in many parts of the world face psychological issues within themselves. In this article I have talked specifically about India, but it doesn't mean that any in any other countries these marital rapes don’t take place.

Marital rapes can be referred as non-consensual sexual intercourse or penetration buy the spouse or intimate partners, it can be characterized by the absence of voluntary agreement and orphan involves physical force, threads or psychological coercions. It is recognized as a form of domestic violence and sexual abuse, violating personal autonomy and bodily integrity, even within the parameters of marriage. 

Historically dismissed due to societal norms that treated marital relationships as unconditional consent, modern legal frameworks increasingly criminalizing such acts true enforcements remain inconsistent globally. Focusing on in India, marital rapes are not fully criminalized for wives below 18 years, despite judicial acknowledgement of sexual privacy rights. 

Marital rape is a serious concern at present. As it hampers the psychological functioning of an individual leaving trauma on survivors. It can instigate the human to take dangerous or serious steps to end their lives. Because when a person is dealing with psychological issues, they might not be in that stage of mind to take proper actions and decisions based on the situations. A women facing marital rapes can go through serious issues such as:

1. Post-traumatic stress syndromes: Marital rape victims exhibit higher PTSD rates than those of assaulted by strangers due to betrayal traumas and repeated exposures. They often face hypervigilance, nightmares and emotional numbness in extreme cases.

2. Depression and anxiety: The woman after facing marital rapes constantly can generate hopelessness, suicidal thoughts, sadness, even can get panic attacks, chronic fear etc. 

3. Low self-esteem and body image issue: The survivors often develop guilt, believing that they have failed as wives and it's their fault. Victims may also develop a feeling of disgust toward their bodies, leading to avoidance of intimacy even in future.

4. Sexual dysfunction: When a woman faces such situations after that they start hating their own lives. They became unable to develop the relationship as before and became fearful towards their husband’s attitude and behaviour.

5. Social and emotional isolation: Most victims fear the judgment of others and therefore keep themselves silent, often it has been seen that they have isolated them from their families and communities because they have lost their hopes in them. The betrayal from their partners fosters mistrust in future relationships and gives a permanent emotional wound.

The project examines the problems faced by women’s due to marital rapes the breach of trusts from their close ones. The weakness and ineffectiveness of the government and judiciary. Which ultimately leads to violation of Fundamental Rights (Article 14 and 21) of the Indian Constitution.  The paper will be largely focused on a doctrinal study of the evolution of the provision in landmark cases such as Independent Thought v. Union of India (2017), Kerala High Court Judgment (2024), Kharak Singh v. State of U.P. and Justice K.S. Puttaswamy v. Union of India, Bodhisattwa Gautam v. Subhra Chakraborty and State of Maharashtra v. Madhkar Narayan. 

The present study adopts a qualitative research approach, analysing primary sources such as legal and constitutional provisions, judicial pronouncements and judgements. I have also stated past and context of present India, this methodology enables the understanding of the broader legal, social, and political dimension of the Marital Rape in India.

International Scenario: it is estimated that in 2006 almost 100 countries considered marital rape as a criminal offence. And countries have criminalised marital rape. They have begun to criminalise it from the late 20th century. When cases of marital rape started coming forward and the government and the authority started taking interest and focus on it. Countries like Hong Kong, Ireland, Italy, Japan, United Kingdom, United States, Indonesia, Mauritania, New Zealand, Turkey, Mauritius, Thailand, Norway, Philippines, Germany, Scotland, South Africa, Belgium, China, Canada, Denmark, France, Australia, Algeria and Albania have criminalised marital rapes.  

India’s Scenario: India has not criminalised marital rapes till now. India's legal framework does not explicitly criminalise the marital rape for wives below 18 years (it was reversed in 2017 by the Supreme Court judgement, before that it was 15 years). This colonial error provisions states that non-consensual sexual intercourse by a man with his wife, provided she is not a minor, does not constitute rape. Key legal provisions are as follows:

1. Section 375 IPC: This section defines “rape” in a broader aspect but with an exception that Husbands will be prosecuted if their wives age is under 18. Judicial separation and divorce do not automatically remove this exception through forced intercourse with a separated wife but is punished under section 376B. And the punishment is up to 2-7 years.

2. Section 498A IPC: This section criminalises “cruelty” against a spouse, including mental or physical harm with an imprisonment up to 3 years. However, it does not specifically address as non-consensual sexual acts.

3. Protection of women from domestic violence act, 2005: Recognises sexual abuse as a domestic violence, allowing the civil remedies like Protection Orders but does not impose criminal penalties on the partners.

Constitutional Validity: marital rape in India is not considered as a criminalised act. Which violates the fundamental rights which have been granted by the Indian constitution to all its citizens. The fundamental rights which are being violated are as follows:

1. Article 14 (Equality Before Law): The marital rape exception under Section 375 IPC creates an arbitrary classification between married and unmarried women, violating Article 14’s guarantee of equality.

   1. Unreasonable Classification: The law treats non-consensual intercourse as rape only if the perpetrator is not the victim’s husband, despite identical physical and psychological harm. Courts have held that reasonable classification under Article 14 requires a rational nexus with the law’s objective (e.g., protecting women from sexual violence). However, marriage does not justify exempting husbands, as it lacks a legitimate state interest.

   2. Discriminatory Treatment: The exception discriminates against married women by denying them legal recourse available to unmarried survivors. It also creates a gender-based distinction by implicitly treating wives as property of their husbands.

2. Article 21 (Right to Life and Personal Liberty): Marital rape infringes on multiple facets of Article 21, which encompasses dignity, bodily autonomy, privacy, and mental integrity:

   1. Bodily Integrity and Consent: Forced intercourse violates a woman’s right to sexual autonomy, as recognized in State of Maharashtra v. Madhukar Narayan (right to say "no" even in marriage).

   2. Right to Live with Dignity: The Supreme Court in Bodhisattwa Gautam v. Subhra Chakraborty held that rape is a crime against human dignity, irrespective of the perpetrator’s relationship to the victim.

   3. Sexual Privacy: The right to privacy (affirmed in Kharak Singh v. State of U.P. and Justice K.S. Puttaswamy v. Union of India) includes sexual privacy, which marital rape violates by compelling non-consensual acts.

   4. Mental Health: Survivors suffer long-term psychological trauma, which the state fails to mitigate by legitimizing spousal sexual violence.

3. Judicial and Constitutional Conflicts:

   1. State’s Failure to Protect: By retaining the exception, India disregards international obligations (CEDAW, ICCPR) to criminalize gender-based violence, further violating constitutional duties under Article 51(c).

Main Arguments with Evidence

1. Equality and Non-Discrimination: India’s failure to criminalize marital rape perpetuates gender inequality, reinforcing women’s subordination and treating them as marital property. By retaining Exception 2 to Section 375 IPC, the law discriminates against married women, denying them legal protections available to unmarried survivors. This contradicts constitutional guarantees under Article 14 (equality) and Article 21 (right to life/dignity), as marital rape inflicts physical and psychological harm equivalent to other forms of sexual violence.

2. Violation of Human Rights Laws

   1. Protection of Human Rights Act, 1993: Marital rape violates the right to life, liberty, and security, as recognized in cases like Independent Thought v. Union of India (2017), where forced intercourse with minors was deemed a human rights violation.

   2. Domestic Violence Act, 2005: While it recognizes sexual abuse as domestic violence, the absence of criminal penalties renders protections ineffective, undermining the law’s intent.

3. Constitutional Rights Under Article 21: Marital rape breaches bodily autonomy, dignity, and privacy under Article 21. The Supreme Court has affirmed that sexual violence violates the right to a dignified and sexual privacy. Allowing marital rape exceptions contradicts these precedents, denying women recourse against intimate partner violence.

4. International Obligations: India’s commitments under CEDAW, ICCPR, and UDHR mandate the elimination of gender-based violence. Criminalizing marital rape is essential to fulfill the due diligence duty under CEDAW, which requires states to prevent and punish acts violating women’s rights. Persistent non-criminalization places India among nations flouting global human rights norms.

5. Judicial and Legislative Stagnation: Despite the Delhi High Court’s 2022 split verdict and pending Supreme Court petitions, legislative inertia persists. The government’s stance-prioritizing “marital harmony” over women’s rights-ignores constitutional and international obligations.

Counter Arguments and Responses

1. Institutional Concerns: Critics argue it may "destabilize marriage" as a sacrosanct institution, threatening family values and societal structures.

2. Cultural Norms: Indian society traditionally views marriage as a lifelong sacrament where consent is "implied," making criminalization culturally contentious.

3. Legal Precedents: The Law Commission and Parliamentary Committees have not recommended criminalization, citing existing laws (Example: Section 498A IPC for cruelty) as sufficient.

4. Implementation Challenges: Proving marital rape could lead to false accusations, akin to alleged misuse of anti-dowry laws (Section 498A).

5. Government Stance: The state claims criminalization would be "excessively harsh," disrupt marital harmony, and overlap with civil remedies under the Domestic Violence Act.

6. Privacy Concerns: Some fear judicial overreach into marital privacy, though opponents counter this perpetuates patriarchal norms

1. Independent Thought v. Union of India (2017): 

In a landmark 2017 judgment, the Supreme Court partially struck down Exception 2 to Section 375 of the Indian Penal Code (IPC), which permitted non-consensual sexual intercourse between a man and his wife aged 15–18 years. The Court ruled that this exception violated Articles 14 (equality), 15 (non-discrimination), and 21 (right to life with dignity) of the Constitution, as it arbitrarily discriminated against married minor girls by denying them protections against rape available to unmarried minors. 

By "reading down" the exception, the Court raised the age of consent for marital intercourse to 18, aligning it with the Protection of Children from Sexual Offences (POCSO) Act, 2012, which defines a child as anyone under 18. The ruling emphasized that child marriage (prohibited under the Prohibition of Child Marriage Act, 2006) cannot legitimize sexual violence and affirmed that a wife’s bodily autonomy must be protected irrespective of marital status. While the decision marked progress in safeguarding minors, it left the marital rape exemption for wives above 18 intact, underscoring the need for legislative reform.

2.  Kerala High Court Judgment (2024):

In a landmark ruling, the Kerala High Court recognized marital rape as a valid ground for divorce under "cruelty" (Section 13(1) (IA) of the Hindu Marriage Act), even though it remains decriminalized under Indian penal laws. The court emphasized that non-consensual sexual acts, including forced intercourse and unnatural sex, violate a wife’s bodily autonomy and right to dignity, stating: “Treating a wife’s body as something owing to the husband and committing sexual acts against her will is marital rape”. 

The judgment stemmed from a case where a husband subjected his wife to sexual perversion, including intercourse during illness and in their child’s presence, alongside financial exploitation. The court upheld the family court’s divorce decree, asserting that marital rape constitutes physical and mental cruelty, irrespective of its criminal exemption under Section 375 IPC. This decision marked a pivotal shift in civil law, acknowledging marital rape as a violation of constitutional rights to privacy and equality (Articles 14 and 21), while highlighting the need for legislative reform to address criminal liability

The Government of India in order to protect women has come up with many laws and statutes. Which have lifted the position of women in various fields. But a serious concern about situations like marital rape where the woman is being deceased buy her own husband is being neglected. In the past, it has been seen that women were treated as secondary property which the patriarchal society believes that they can transfer to do whatever they want. 

But with this they forgot that women are also a human being with flesh and blood, with emotions and beliefs who works for the betterment of their own houses. Taking care of their parents and siblings when they are not married, then after getting married they take care of their husband and their in-laws ultimately to their children. But in between all these they always forgot about their own happiness, dreams etc. 

So, when a woman is doing all these works why can't they get the right on their body. Why does society forget that marriage not only involves men but also women? And when both sides are balanced then only the religious ceremony can be stated as a “true marriage.”  Criminalizing marital rape is critical to uphold gender equality, constitutional rights, and international human rights obligations, ensuring women’s autonomy and safety within marriage.

1. Ashish v. State of Kerala (Bail Appl. No. 5360 of 2024) (Ker. Bail App. & Trib. Feb. 30, 2024), order reprinted at 2024 Ker. 75090 (Ker. H.C. Oct. 9, 2024) (granting anticipatory bail where parties were married and sex was consensual).

2. Independent Thought v. Union of India, W.P.(C) No. 382 of 2013, (AIR 2017 SC 4904), 11 Oct. 2017 (reading down Exception 2 to § 375 IPC to apply only to wives aged 18 or older).

3. Independent Thought v. Union of India & Anr., (2017) 11 SCC 4904 (Sup. Ct. India) (read‑down of marital‑rape exception in § 375 IPC to wives under 18).