Blog Image

Is Marriage License to Rape?

- Suphla Singh, Symbiosis Law School, Pune

Out of thirty six countries in the world that has not criminalised marital rape, India stands one among them .Till date marital rape is not categorised as offence and still being untouched by the lawmakers of India. There has been numerous legislation on dowry, cruelty, domestic violence and female infanticide which are enacted to curb the violence against women but the most shameful wrong committed to a women in a marriage in the form of rape has failed to be recognised as a criminal offence in the eyes of lawmaker. One of the social reason can be the deeply embedded patriarchal view that prevail in Indian society which considers married women as an object to the husband and merely used for sexual gratification. This is the reason why even it is hard for the victim to see herself as victim of marital rape.

As per the definition of rape given in Section 375 of Indian Penal Code which includes all non-consensual intercourse as sexual assault. However, in the Exception (2), of Section 375 which exempts unwilling sexual intercourse between a husband and a wife over fifteen years of age from Section 375’s definition of “rape” and thus immunizes such acts from prosecution. However, in the landmark judgement Independent Thought v. Union of India, (2013) 382 SCC , the apex court criminalized unwilling sexual contact with a wife between fifteen and eighteen years of age. The constitutionality of the said exception is being challenged by numerous writ petition of Supreme Court and High Court. 

Constitution viz –a viz Marital Rape

Violation of Article 14: Article 14 of Indian constitution states that “[t]he State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” However the Section which deals with rape in Indian Penal Code caste a discrimination between a women gets raped and a women gets raped by her own husband. This provision in criminal law goes against the article 14 of Indian Constitution. The exception to rape has created two classes of female that is based on their marital status and immunizes the act of husband committing rape against his wife. In the case of State of West Bengal v. Anwar Ali Sarkar and Budhan Choudhary v. State of Bihar ,the apex court stated that if classification is done under Article 14 , it should have reasonable nexus to the objective which any act wants to achieve but here exception 2 of Section 375 goes against the very purpose of the act which is meant for protection of women from inhuman act of rape . As there is no reasonable nexus, thus the exception 2 of Article 375 clearly violates Article 14 of Indian Constitution.

Violation of Article 21: Article 21 of Indian Constitution states that “[n]o person shall be denied of his life and personal liberty except according to the procedure established by law.” The apex court through various judgement have interpreted the Section in such a manner that it goes beyond life and liberty and also includes rights to health, privacy, dignity, safe living conditions, and safe environment, among others. The exception created by Section 375 violates article 21 in form of violation of right to privacy, and right to bodily determination and right to health.
Supreme Court in plethora of judgements has stated that the very act of the rape violates the right to life and right to live with human dignity. The apex court has also stated that rape is not only crime against a person but also a crime against the whole society.
Every female is entitled to keep her sexual privacy which was stated in the case of State of Maharashtra v. Madhkar Narayan. In addition to this Supreme Court extended, sexual privacy to the work place in the case of Vishakha v. State of Rajasthan .Not criminalizing marital rape is violation of sexual privacy against the women. Right to bodily determination is not expressly mentioned in Article 21 but it forms a part of right of life and personal liberty. Right of bodily determination means that person has ultimate right to make choices concerning his body. Consent to have sex is one of the most intimate choice that a women can make and exception 2 of Section 375 deprive married women to make choice for own body . This way the said provision deprive married women from right of making bodily determination. 

Marital rape not only causes harm to the physical well – being of the women but also causes deep emotional and psychological harm as right to life also have right to good health , the marital exemption doctrine effectively deprives a married woman of her right to good health and is hence, unconstitutional.

There are many arguments which are given against the criminalization of marital rape some of them are mentioned below:
1. Criminalization of marital rape can be proved disastrous for the marriages and can used a tool to harass husband by vengeful wives 
2. It will create burden for already overburdened legal system of India as proving marital rape is a herculean and near to impossible task.
3. When man is married to a women, women gives implied consent to the man for sexual intercourse.

For sustaining the institution of marriage and fear of frivolous litigation should not stop lawmakers from criminalisation of marital rape in our country. Law and society goes hand and hand. Thus not only judicial awakening is necessary but also awakening of society is also necessary.  Women right and personal autonomy is neglected in front of shame, gender and family honour.

Marital rape is one of the most serious form of violence which not only needs state attention but also of public in general. By the virtue of fact, women in marriage who is raped by the husband suffers more prolonged trauma and psychological torture. She has to live in terror of her husband. This is the high time that not only child brides but also all the wives need to be protected. While there are already laws on cruelty, dowry death, domestic violence there is no reason to leave the most heinous crime towards a women body i.e. rape.

Recently in the judgement of Gujarat High Court in the case of Nimeshbhai Bharatbhai Desai vs State of Gujarat (2017) which exclusively dealt with the matter of rape and stated that “[m]aking wife rape illegal or an offence will remove the destructive attitudes that promote the marital rape”; however, due to non-recognition of marital rape as a crime under the Indian legal framework, the court held that the husband is liable only for outraging her modesty and unnatural sex. The decision is a clear depiction of lacunae in the legal framework for rape law . Society and law makers both need to understand that rape is a rape and consent is a consent and it should not discriminate on the fact that victim is married. The real objective criminalization of marital rape can only be achieved when there is awareness among every strata of the society. 


1. Independent Thought v. Union of India  [2013]382 SCC
2. State of West Bengal v. Anwar Ali Sarkar [1952] AIR 75, [1952 ]SCR 284
3. Budhan Choudhary v. State of Bihar[1955]1 SCR 1045
4. State of Maharashtra v. Madhkar Narayan , [1991] (61) FLR 688, JT [1990 ](4) SC 169
5. Vishakha v. State of Rajasthan[1997] 6 SCC 241
6. Nimeshbhai Bharatbhai Desai vs State of Gujarat [2018] SCC OnLine Guj 732, [128] 65
7.Sarthak Makkar, ‘Marital Rape : Non – Criminalized Crime in India’(Harvard Human Right Journal, 1 January  2019) <> accessed 15 April 2020.