Legal Literacy

The ‘Legal’ Rape in India and Its Dilemma

A man forcing a woman to have sex is legal in India, on one condition – the man should be the husband of the woman. The first part of the previous sentence shocks the readers. Few people do not hesitate deciding that the man is to be called a rapist. But, on reading the condition, a majority of those very people say, ” How is this possible. He is the husband of the wife. He has all rights to do anything to his wife in bed”. This is the typical mindset of the Indians. This has become a burning issue in the recent days.

The Case of Asha

Asha was 18 years when she married. Hers was a love marriage. Just like everyone, she had dreamt about the bliss of marriage and waited for that big day. After that big day, as days became weeks and weeks became months, she started to see the true colour of her husband. He not used to force her to have sex with him even when she was not prepared for it but also started to physically assault her during the act and after, and also derived the sadistic pleasure out of it. In spite of all this, she clung to her marriage because she could not support herself. She did take the first bold step and filed a domestic violence case in 2007. Later, in 2015, she was rushed to the ICU with serious injuries on her private parts, which was analyzed to be inflicted during sexual assault. India has many such Ashas who do not report such incidents. They fear breaking off their marriage or the law enforcing authorities do not interfere or report as this they call “A matter between husband and wife.” (The Hindu report)

What is Marital Rape?

“Rape” is defined as ” (typically of a man) force (another person) to have sexual intercourse with the offender against their will.” (Oxford Online Dictionary). Rape after marriage is termed ” Marital Rape”. Here, either the wife or the husband is unwilling to have sex but the other person forces to have sex with him / her. This can happen with or without the consent of the unwilling person. The consent is usually forced. Plus, this is not only confined to forceful sex but also takes form of violent harassment causing great damage to their bodies, especially their private parts.

Where does this begin from?

  • Marriage is considered a legal outlet for the sexual desires in societies like India.
  • So, children, especially boys grow up witnessing that the mother is inferior to the father and she should abide by his will, irrespective of her opinion.
  • These very children grow up, explore their sexuality through various non-scientific sources like pornography and have sexual fantasies. They are unable to find a ‘subject’ to ‘experiment’ these fantasies on. Luckily they avoid approaching strangers and wait till they get married. ( refer the first point).
  • Once married, all the desires they have suppressed for years flow out and makes them crave for sex, irrespective of the other person’s opinion. This is the genesis of Marital Rape.

Why does this happen?

  • Are men more interested in sex than women? Debatable. But in societies like India, men have more liberty to express their desires whereas women are not encouraged. So, even if a woman is interested more, she hesitates to express it, even to her husband.
  • But men consider marriage a license to sex and are taught that his wife is his own property which he can ‘use’ as he wishes to.
  • The tradition of India which assigns the role of submissiveness to the wife to her husband.

What do the statistics say?

In cases as these, it is difficult to exactly obtain statistics because cases of marital rape are very rarely reported. Women are not even aware that this is wrong, even within the boundaries of marriage. There are very few statistics available.

The Legal Dilemma

Article 21 of the Indian Constitution assures any human being, irrespective of gender and marital status “Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law”. But in reality, a wife does not  typically entitled to this personal liberty, not at least in the bed room.

Article 375 of the Indian Penal Code, which defines rape has a clause which states “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” This means that if the wife is above the age of 15 and is she is forced to have sex with her husband or husband commits sexual offence on her, she does not have a proper legal resort. The constitution does not recognise marital rape.

The first clause of the Article 376 of the Indian Penal Code, which defines punishment for rape summarizes thus – a man who raped a woman is liable for punishment of imprisonment for a period between 7 – 10 years, unless the woman is his wife and not younger than 15 years. If she is his wife older than 15 years, he is to be punished for a period up to 2 years with or without fine. This causes ambiguity where the punishment for a man who raped a woman depends on the fact if she is his wife or not.   

Article 498(1) of the Indian Penal Code summarizes that if a woman is subjected to cruelty by her husband or relatives of her husband, they will be imprisoned for a period of up to two years with or without fine.

The problem here is that the Constitution does not recognize marital rape. This discourages women from reporting it. Even if they report it, the law enforcing authorities do not file them for the same reason.

The Legal Battle

Various pro-women organizations have been demanding the deletion of the deletion of the exemption mentioned in the aforementioned Article 375 and criminalize marital rape. They say that a woman is a human being and rape is a rape, be it by her husband or by another man. Marriage cannot be a license for a man to have lesser punishment for the same crime.

The Government argues that the recognition of marital rape destroys the sanctity of a marriage which is a sacred institution. Moreover, this can be used by women to harass their husbands who may be innocent.                              

What Lies Ahead?

Some High Courts have already ruled out a possibility of deleting the concerned clause of the Article 375 as this will cause in the creation of a new crime, which is the work of the legislature. They also feel that this will destroy the sanctity of institution called marriage. The case is pending in the Supreme Court.

Why Should Marital Rape Be Criminalized?

Humans have been evolving through the ages. There was once a time when cannibalism was practiced and promoted by the Governments. Now the whole human kind is against cannibalism and it is an offence everywhere in this world. There was once a time polygamy and polyandry was legal. Now, most of the democracies have prohibited both. So, the evolution of laws have been aiming at the betterment of the human race. The criminalization of marital rape is just another step in making the lives of women better and livable.

Marriage is a sacred institution which is found on the promise of security, trust and loyalty to each other. It is a tradition that the seven steps taken during the marriage makes them partners for seven lives. It is not moral or humane for one of the partners to dominate the other and consider the other as his commodity. Everything in a marriage life should be shared between the spouses, even dignity and respect. In fact, those are the very founding pillars on which the roof of love is built. On this roof, the building of physical and psychological bliss and the progeny as well as happy years of marriage is built. It is indeed a crime to break a promise given to a person who with all trust and love, comes to live with her husband with a  lot of dreams in her shiny eyes. A woman has to be considered a living human being with all flesh and blood. It should be understood that even she feels pain, even she has feelings and she is definitely not a commodity to be used when needed.

What Are We Supposed To Do?

At the present moment, it is difficult to say whether marital rape will be criminalized. That is the work of the courts and the legislature. There are quite a lot which we as common people can do.

  • Give quality and frank sex education to our children which should indeed be age appropriate, so that our children do not turn to the non-scientific sources which portray violent sexual content.
  • Educate our sons to treat women equally and respect them. They should not be encouraged to view women as objects for sexual pleasure.
  • Encourage women to come out of their shells and report any such incidents.
  • Equip women with knowledge about laws so that they become confident enough to approach court when their rights are violated.
  • Empower women so that they become self sufficient so that their livelihood does not come in the way of their reporting such incidents.
  • Educating the masses so that it changes the attitude of the society towards single women and sexual assault victims. The society should be taught to empathize with such victims instead of stigmatizing them.


  2. Article 21 in The Constitution Of India 1949
  3. Section 294 in The Indian Penal Code
  4. Section 376 in The Indian Penal Code
  5. The law on rape | IndiaToday
  6. SC says marital rape can’t be considered criminal: Tradition doesn’t justify assault, child marriage – Firstpost

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Author: Ms. Nayana M R