Criminalization of Marital Rape in India: Legal Analysis and Advocacy

Author- Sanvi Khamkar, Student at NMIMS University, Mumbai


Marital rape is illegal in India; this is a divisive issue spanning legal, social justice, and gender issues. There are currently no laws in India that specifically address marital rape, despite the fact that it is well acknowledged to be common and destructive. This is a comprehensive legal analysis and advocacy strategy for criminalising marital rape in India. The climate of impunity that sustains gender inequality and keeps victims from pursuing justice is not changed by legalising marital rape. This study looks at the social and legal barriers that prevent marital rape in India from being criminalised. This research critically examines legislative debates and judicial interpretations surrounding marital rape in order to reveal deficiencies in institutional responses to survivors and legal protection. This paper critically examines the historical and legal causes that have contributed to the lack of legal recognition of marital rape, including patriarchal attitudes, prevailing societal standards, and the notion that marriage is sacrosanct.
It also looks at the societal norms and patriarchal beliefs that normalise and encourage marital rape while decreasing its reporting. It discusses the impact that family pressure, financial dependence, and social stigma have on survivors’ ability to seek legal redress. It backs laws aimed at clearing up misconceptions and enlightening the public. 


The Latin word “rapere,” which meaning “to steal or carry off,” is where the word “rape” originates. It alludes to the widespread custom of ancient Romans kidnapping wives from nearby tribes. Rape is regarded as a crime against humanity because it is fundamental to human evolution. Spousal rape is mentioned in ancient texts on a regular basis. Even now, this horrible crime against women is still committed by all nations, communities, faiths, civilizations, and ethnicgroups.
Regarded as a violation of human rights The word “rape” refers to the situation in which a man, or husband, coerces a woman, or wife, into having intercourse against her will or consent. Rapists typically employ threats of harsh consequences, violence, and intimidation to control their defenceless victim and make them give in to their insatiable desires.

A few instances of the many ways that rape manifests itself include ‘incest, gang rape, date rape, child rape, serial rape, marital rape, statutory rape, mass rape by invading armies, and several other’ commonplace forms of sexual assault on women’s dignity. In the past, women in patriarchal countries like our own were regarded as the property of their fathers and, after marriage, of their husbands. Rape was seen as more of a threat to the victim’s spouse or father than to the woman. In our country, the two most widely held competing ideologies are that marriage itself gives consent to sexual activity and, on the other hand, that any forced sexual behaviour against one’s free will or agreement is rape, regardless of the relationship between the man and woman.

The prior conception of the husband- wife relationship was based on the notion that men are superior to women. In households where males are the main providers of income and women are subservient, men ought to have greater authority and respect. The woman’s husband’s authority over her body was considered a marital right, regardless of the woman’s own preferences, likes, dislikes, wishes, or desires. In Rajasthan, dreadful traditions like “Sati” were prevalent, wherein wives would leap into their husbands’ funeral pyres to save their honour from the oncoming armies. The sacrifice was praised in folklore as an example of a virgin’s faithfulness and purity. 



In Chapter 16 of the Indian Penal Code, 1860, Sections 299 to 376 list the offences against the body. According to Section 375, rape is defined as when a man penetrates his own penis, any object, or any portion of his body, or manipulates any part of a woman’s body in order to have anal, vaginal, or oral sex with her or with another person. Rape is the crime of forcing a woman to engage in oral-vaginal and oral-anal intercourse with a man or another individual, or executing these acts on her behalf.

This section describes the following seven different scenarios to be considered in establishing an act of rape: 

  1. “If rape is committed against the will of the woman.
  2. If rape is committed against the consent of the woman. 
  3. If consent is obtained by inducing fear in the woman.
  4. When a woman is deceived into believing that the rapist is her lawfully married husband.
  5. Consent obtained from women under intoxication and/or who are of unsound mind.
  6. Sex with or without consent of women under 16 years of age.
  7. When a woman is unable to communicate consent.”

Article 21 of the Indian Constitution

Every person is guaranteed the protection of their life and personal liberty under Article 21 of the Indian Constitution. The Indian Supreme Court has construed this right broadly to encompass the rights to privacy, personal liberty, and dignity in one’s life. These rights are protected by the constitution, and the legalisation of marital rape raises concerns about the state’s duty to protect women from abuse in marriage.

Global scenario

Marital rape is regarded as a crime with varied degrees of penalty in several nations worldwide. Narratives of the atrocities of war following World War II, such as the well-known case of “comfort women” from China, Korea, and the Philippines who were enlisted to work in comfort stations set up by the Imperial Japanese Army only to be forced into sexual slavery by the Japanese soldiers, shook people’s consciences. Marital rape became a public problem with the feminist movement in the second part of the 20th century. All nations present at the United Nations Women’s Conference in 1995 supported a resolution recognising wives’ rights to decline their husbands’ advances in a sexual manner. These days, 52 countries, including the USSR, USA, UK, Canada, Sweden, and Poland, have made marital rape a punishable crime, and 80 countries have outlawed the exemption from marital rape. Sadly, India has not yet been added to this coveted list.


“Nimeshbhai Bharatbhai Desai v. State of Gujarat (2018)”

The Gujarat High Court deliberated whether forcing one’s spouse to engage in oral sex with one another is deemed rape under Section 376 of the Indian Penal Code. The court said that although marital rape has not been made a crime because of fear of hurting married couples, it is nonetheless necessary to address this issue. Three prevalent forms of marital rape were identified: force-only rape, which involves coercion but does not involve physical violence; obsessive rape, which is characterised by extreme aggression or sadistic behaviours; and battering rape. The court underlined that although marital violence is prohibited by law, marital rape remains unpunished due to the legal recognition of marriage, highlighting an inequality in women’s rights. While addressing worries about unfounded accusations, the court emphasised how crucial it is to provide victims’ protection and justice.

“Independent Thought vs Union of India (2017)”

The Supreme Court examined the question of whether a husband’s sexual interactions with a girl between the ages of 15 and 18 constituted rape in the 2017 case Independent Thought v. Union of India. The court held that, regardless of a person’s marital status, such acts constitute rape, invalidating Section 375 of the IPC’s Exception 2. It made reference to the principles of equality and nondiscrimination inherent in the Constitution as well as the Protection of Children from Sexual Offences Act. Several historical examples were used to highlight how important it is to protect women’s bodily autonomy in marriage. The court criticised societal stigmas and statutory gaps that overlooked marital rape, emphasising respect for one another and married women’s fundamental right to bodily integrity.


Some contend that because marital rape is treated as a less serious crime than murder, culpable homicide, or rape in general, Section 375’s Exception 2 is arbitrary and discriminatory, favouring married women over single women. Applications disputing this assertion were consequently submitted to the Delhi High Court. Numerous organisations, including the forum to engage men, the RIT foundations, and the ‘All India Democratic Women’s Association’, submitted petitions. The aforementioned Exception, according to the petitioners, was unconstitutional. The non-governmental organisation males’s Welfare Trust, which represented the man who was allegedly mistreated by gender legislation, claimed that false claims of rape and domestic violence by women have affected numerous males. 

Plea also referenced data from the National Crime Record Bureau (NCRB), which indicated that the majority of the 62,000 married men who commit suicide each year—more than twice as often as women—have marital issues. The Public Interest Litigation (PIL) has pushed for the adoption of precise regulations for the registration of instances pertaining to marital rape within established laws and norms in order to establish accountability, responsibility, and liability of the relevant authorities. But the HC denied the petition, saying that the legislative ought to have authority over it rather than the courts. The awful attitudes of the government and the judiciary about marital rape serve to emphasise India’s patriarchal social system.


India’s legal ban on marital rape is an antiquated, discriminatory tradition that compromises women’s rights and self-respect. To criminalise marital rape and protect all women’s constitutional and human rights, comprehensive legal reform is necessary, even in the face of gradual judicial success and persistent lobbying. In order to guarantee that no woman is the victim of sexual abuse within the sacred framework of marriage, the Indian legal system must change to reflect the values of equality, autonomy, and justice.

Due to the worldwide winds of change that allowed women to prosper in a variety of fields and carve out their own space, the voices advocating for equal rights for women began to become increasingly prominent in Indian society. No longer a silent revolution, the concerns surrounding women’s independence, dignity, and right to autonomy over their bodies are now being discussed in Parliament, on social media, and through public interest lawsuits that the Supreme Court of India is currently keeping an eye on.

Marital rape differs from other forms of rape solely in that the victim is the spouse who gives permission for the act, not the other way around. The basic element of power dynamics is evident in all forms of rape. Marital rape is typified by an entitlement mentality stemming from the relationship, and it is frequently perpetrated without concern for retaliation or legal repercussions. This is especially true in societies and countries where the law does not address the issue, allowing unstable relationships to fester beneath the surface. 


  1. Describe marital rape.
    The term “marital rape” describes non-consensual sexual relations between a husband and wife. It is seen as a type of sexual assault and domestic abuse.
  1. Is it illegal to rape a spouse in India?
    In India, adult women are not currently criminalised for marital rape. Husbands are shielded from prosecution for rape against their wives under Section 375 of the IPC under Exception 2, provided the victim is not older than eighteen. 
  1. Is it appropriate to make marital rape a crime?
    Making marital rape a crime is crucial to upholding women’s rights, promoting equality before the law, and giving victims’ rights to justice and legal redress. It addresses the psychological, social, and bodily suffering brought on by such violence and harmonises national laws with international human rights norms.
  1. What obstacles stand in the way of India making marital rape a crime?
    Among the difficulties include deeply ingrained societal and cultural traditions that see marriage as implicitly conferring sexual consent, a dearth of political will, and worries about legal abuse. However, activism, education, and legal reform are required to address these issues.
  1.  In what ways may advocacy work help make marital rape a crime?
    Advocacy campaigns have the power to change laws, sway governments, and increase public awareness. Key tactics for promoting change include working with international organisations, using the media, and influencing public opinion.
  1. How have other nations dealt with rape in marriage?
    Marital rape has been made illegal in several nations, including the US, UK, Canada, and Australia, since it violates a woman’s right to privacy and her body’s autonomy.

Criminalization of Marital Rape in India: Legal Analysis and Advocacy

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