• Law & Order

Marital Rape in India

Written by Amulya Anand

Second Year, BA. LLB. National University of Study & Research in Law, Ranchi





Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.


Marital Rape is the most customary and abhorrent form of perversion in Indian society. It is hidden behind the iron curtain of marriage. Any kind of undesirable sexual penetration or intercourse, obtained by force or physical violence, without the consent of the wife is known as ‘marital rape’. It is an act of hostility and cruelty which has become a major social and political issue linked with the disparity of power arising between husband and wife, wherein the wife is denied of her self-respect The primary principle for the marital exception clause is derived from Sir Matthew Hale’s statement that “the husband cannot be guilty of a rape committed by himself upon his lawful wife, for their mutual matrimonial contract and consent the wife have given up herself in this kind onto her husband, which she cannot withdraw”[1].

Marital rape invokes the feeling of emotional distress and deception in a wife who faces coerced sexual penetration from their spouse. Further, it is not a one-time experience, which makes it impossible for the spouse to get rid of such feelings and feel normal after such an experience. This can prove to be devastating for the spouse’s mental as well as emotional state of mind and can exacerbate her suffering with no legal remedy available to her to come out of such a situation. Marital sexual violence, including marital rape, when permitted by law, amounts to legal authorization to violence against women and invades personal and intimate spaces of their life.

The physical effects of marital rape may incorporate injuries or harm to private organs, soreness, lacerations, bruising, torn muscles, fatigue, and vomiting. Women who have been abused and raped by their husbands may also suffer from other physical consequences such as black eyes, broken bones, bloody noses, and wounds that occur during sexual intercourse. Specific gynecological consequences of marital rape include stillbirths, infertility, bladder infections, miscarriages, and the potential contraction of sexually transmitted diseases encompassing HIV [2].

Women who are raped by their partners are expected to suffer serious psychological consequences as well. Some of the short-term effects of marital rape constitute shock, anxiety, depression, intense fear, suicidal ideation, and post-traumatic stress. Long-term effects usually constitute sleep problems, disordered eating, problems in establishing trusting relationships, depression, and also increased negative feelings about themselves. Psychological effects are likely to be long-lasting. Some marital rape survivors reveal flashbacks, emotional pain, and sexual dysfunction for years after the violence[3].

The law is silent when it concerns the rights of women who are victims of marital rape. According to Exception 2 to Section 375, sexual acts, or sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. [4]

As per the Indian Majority Act, every person domiciled in India shall attain the age of majority on his reaching the age of eighteen years and not before[5]. Also, as per Section 5 of the Hindu Marriage Act, 1955, which deals with conditions for a Hindu Marriage, the bridegroom must have completed the age of twenty-one years whereas the bride should have attained the age of eighteen years at the time of marriage. Now if this is so then why sexual acts or sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not considered as rape? As per the Indian Majority Act, she is minor and the law remains silent or it can be attributed to the patriarchal Indian society which does not accept such crimes committed by men. Here in this regard, one can find the statement of Maneka Gandhi, former Indian Union Cabinet Minister for Women and Child Development, regarding marital rape at Rajya Sabha in 2015, It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of illiteracy/education, myriad social customs, poverty, and values, religious beliefs, the mindset of the society to treat the marriage as a sacrament, etc. [6] It is surprising to see such a statement from the Minister of Women and Child Development in the country and moreover she herself being a woman. From a woman sitting in such a higher position, nothing else can be contemplated except good work for the upliftment of women in the society.

For the next thirty years after the Indian Penal Code was enacted in 1860, there was no remarkable change in rape laws. A number of cases were reported in Bengal where the wife died due to consummation of the marriage. The most landmark case was Queen Emperor vs. Haree Mohan Mythee[7]. Now, this case narrates a miserable story of Phulmonee Dassee, who was eleven years and three months old when she was beaten to death as a consequence of rape committed on her by her husband. The medical evidence showed that Phulmonee had died of bleeding caused by a ruptured vagina. In this case, rape of wife was gravely criticized and it was held that the husband did not have the right to enjoy the person of his wife without regard to the question of safety to her.

The then MLA Hari Singh Gour introduced a bill in 1924, which suggested amending Section 375 of IPC for increasing the age to 14 years in case of both marital as well as extra-marital cases. The bill was brought to the Selection Committee, which made a modification by minimizing the age from 14 to 13 years in marital rape. On September 1 1925, Sir Alexander Muddiman had introduced a bill fixing 14 years the age in extra-marital cases and 13 years in marital cases, which culminated in the Amendment Act, 1925. The amendment in 1925 for the first time introduced a difference between marital and extra-marital rape cases by providing different age of consent in the cases of marital rape. The distinction was further highlighted in Section 376 by imbibing the words-“unless the woman raped is his own wife and is not under twelve years of age”. In which case the punishment was diluted by prescribing 5-10 years and stood alleviated to a large extent by the diluted punishment provided by amended section 376.

The question of the age of consent was not fully solved and Hari Singh Gaur again introduced a bill in 1927 to raise the age to 14 and 16 years in marital as well as ex-marital cases respectively. It was followed by the appointment of the Age of Consent Committee, which analyzed the prevailing situation and suggested a few amendments. The committee was of the opinion that the amended law was ineffective due to the nature of the offense, particularly in case of marriage as consummation necessarily incorporates privacy.

The exception to Section 375 of IPC incorporates that sexual intercourse by the husband is not rape when the woman is married and not less than 15 years of age [8]. But before the amendments made in 2013, when the wife was between 12-15 years, drastically diminished quantum of punishment was provided, extending to two years and fine [9]. It still amounts to rape, when the wife had been below the age of 12 years [10].


The amendment of 2013 has done away with this clause but at the same time has not apprehended the concept of marital rape and had chosen to continue with the earlier legal approach. The distinctiveness of Indian laws is due to the acquisition of primacy and supremacy of the husband's right over that of the wife, even if she is well below the age of marriage.

The legal ambiguity in the provisions highlighted is of treating forcible intercourse with a minor wife (15-18 years) as rape and not considering of that kind intercourse with an adult wife as marital rape at all. The only instance, which law covers is that of legally separated couples not living together under section 376-B of IPC and the vast size of marital rape cases still remain out of the scope of the law.


[1] Dr. Nico, P. Swartz., Odirile, O. Itumeleng., Annah, M. Danga., Tshwene. Kagiso & Mothabatau, Kediretswe.,(2015). Is A Husband Criminally Liable For Raping His Wife? A Comparative Analysis(International Journal of Academic Research and Reflection, Vol.3, No.3) [2] Thornhill, R. & Palmer, C.T., A Natural History of Rape--- Biological Bases of Sexual Coercion (1st Edn., MIT Press Cambridge Mass., 2000) [3] Thornhill, R. & Thornhill, N., The Evolution of Psychological Pain, in Sociology and Social Science, Edn., Bell, R. & Bell, N. (Texas Tech University Press, 1989). [4] The Indian Penal Code, 1860, S.375. , Exception 2. [5] The Indian Majority Act, 1875, S.3 [6] Press Trust of India. (2016, March 10).Concept of marital rape cannot be suitably applied in India: Govt. Hindustan Times. https://www.ndtv.com/india-news/concept-of-marital-rape-cannot-be-suitably-applied-in-india-government-1285833 [7] ILR 1891 Cal 49. [8] The Indian Penal Code, 1860, S.375. , Exception 2. [9] S-376 (1), IPC. In other rape cases, the minimum mandatory punishment is 7 years, which extend up to 10 years or for life. [10] S-376 (2) (F), IPC, 1860.

Bibliography

[1] Dr. Nico, P. Swartz., Odirile, O. Itumeleng., Annah, M. Danga., Tshwene. Kagiso & Mothabatau, Kediretswe.,(2015). Is A Husband Criminally Liable For Raping His Wife? A Comparative Analysis(International Journal of Academic Research and Reflection, Vol.3, No.3)

[2] Thornhill, R. & Palmer, C.T., A Natural History of Rape--- Biological Bases of Sexual Coercion (1st Edn., MIT Press Cambridge Mass., 2000)

[3] Thornhill, R. & Thornhill, N., The Evolution of Psychological Pain, in Sociology and Social Science, Edn., Bell, R. & Bell, N. (Texas Tech University Press, 1989).

[4] The Indian Penal Code, 1860, S.375. , Exception 2.

[5] The Indian Majority Act, 1875, S.3

[6] Press Trust of India. (2016, March 10).Concept of marital rape cannot be suitably applied in India: Govt. Hindustan Times. https://www.ndtv.com/india-news/concept-of-marital-rape-cannot-be-suitably-applied-in-india-government-1285833

[7] ILR 1891 Cal 49. https://www.ijsr.net/archive/v8i5/ART20197686.pdf

[8] S-376 (1), IPC. In other rape cases, the minimum mandatory punishment is 7 years, which extend up to 10 years or for life.

[9] S-376 (2) (F), IPC, 1860.

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