Authored By: ANTAVYA SINGH
Amity university lucknow campus
Abstract
Rape per se is an offence against women violating its dignity and self-respect. This violating crime leaves a dark mark on women’s nobility and morale. This misconduct within the matrimonial walls of the house does not allow women to stand for their right to consent as intimacy is considered a vital part of marriage without highlighting the fact “CONSENT”. The consent of the women before any sexual activity with her before marriage or after marriage should be made necessary. This concept of consent within marriage is unacceptable to this civilized society.
Women are given all the rights towards the violation committed by the outsiders but not the violations and misconduct by her own husband. Women are treated like objects in the matrimonial homes where they are married with all the pomp and show whereas they should be treated equally as the other members of the family with all the respect and dignity. As quoted by the Punjab and Haryana High Courts “a wife cannot be permitted to be treated like a chattel who can be played around with and trashed away at the whims and fancies of the husband”[2]. The women need protection against the violence being committed to her within the matrimonial homes since if her dignity, self-respect, morale and nobility is not protected within the four walls, how would be able to protect her from the violences and crimes which would harm her outside those four walls? Just like service and teachings begin at home so should the respect and dignity of the women shall be upheld at home.
Introduction
When the word rape comes in our mind the first thing which pops up is the person who committed this act should be punished with a rigorous punishment. No one thinks rape would be a crime within a marriage. This concept stands in our civilized society where any sexual act done by the husband on his wife is said to be the right of husband and the woman (wife) should not have any issue with act.
The National Family Health Survey found that between 2019-2021, 32% married women experienced physical, sexual pr emotional violence by their current husbands and 82% of married women aged 18-49 who have experienced sexual violence reported their current husbands as the perpetrators.
The word rape has been derived from a word ‘rapio’ which means ‘to seize’. Rape is, therefore, forcibly seizure, or the ravishment of a woman without her consent, by force, fear or fraud. It involves forceful, non-consensual intercourse with a woman. It is a complete seizure of the woman’s modesty, violation of her consent and outrageous by all means. The Supreme Court of India has aptly described it as ‘deathless shame and the gravest crime against human dignity’[3]. Rape is not merely an assault but is the destruction of the whole persona of the woman.
The Indian Statutes do not conceptualize the concept of marital rape. The Indian statutes do not criminalize marital rape against a woman as an offense. Since there is no law for such an offence, this creates a situation of judicial interpretation for the above concept. The Supreme Court of India has partially recognized the concept of marital rape in a legal statute which allows room for judicial interpretation and justice for the women who suffer with this violation.
Background
Throughout the years, societies have framed this narrative that husbands have supreme authority over their wives and can force them to consensual intercourse without their consent. The traditional definition of rape says, ‘forceful nonconsensual intercourse with a woman is a crime’ but here there is no mention of the word ‘wife’. This means husbands have the license to force sexual intercourse on their wives without their consent.
The case of Phulomoni Das v. Hari Mohun Mythee[4], which took place in 1889, is widely considered as the first case to bring the issue of marital rape to public attention in India. Marital rape was considered as crime during that time, but this case introduced the issue, clarifying that forced sexual intercourse within marriage. Phulomi Das, a 10-year-old girl, was married to Hari Mohan Das, a 30-year-old man, and she died as a result of sexual assault. This case highlighted the fact that women should not be considered as property. Although, in the above case, the girl was a minor hence it’s a case of child marriage, but the concept of marital rape came into light via this case.
The concept of marital rape was considered an issue. The reason being that the society assumed and preached the concept of marriage as the surrender of rights and authority of woman to her becoming husband. Meaning the husband has supreme control and authority over his wife and consent of women not considered as a vital part of a marriage. This narrative only gave rise to this concept. This issue has been penetrating the society since centuries and is still not addressed as openly as it should be among women or even men.
Marital Rape: Laws in India
The concept of marital rape is still not criminalized by the Indian Statutes. Despite many amendments, legislations and the revision of the criminal laws in India. The Indian Penal Code (IPC), 1860 is now replaced by the Bharatiya Nyaya Sanhita (BNS),2023, even after the revision of the criminal laws there is no provision for the punishment of marital rape.
Section 375[5] of the Indian Penal Code, 1860, now section 63 of the Bharatiya Nyaya Sanhita, 2023 defines the concept of rape as a violence against women by a man but the exception 2 says that ‘Sexual intercourse or sexual acts by a man with his own wife, the wife not being under the age of eighteen, is not rape’. Therefore, forced sexual intercourse with wife, being below the age of eighteen, will be considered as rape whereas if the wife is above the age of eighteen, then any forceful sexual act done by the husband on the wife without her consent will not be considered as rape.
Section 367 of the Indian Penal Code, 1860, now Section 64 of the Bharatiya Nyaya Sanhita, 2023 provides punishment of rape. According to this section the offender shall be punished with rigorous imprisonment for up to 10 years, life imprisonment and shall be liable for fine.
As per the Bharatiya Nyaya Sanhita, the instances wherein the husband can be criminally prosecuted for an offence of marital rape are as under:
- When the wife is between 12-15 years of age, the offense is punishable for imprisonment up to 2 years or fine or both.[6]
- When the wife is below 12 years of age, the offense is punishable for imprisonment of a minimum of 7 years to life or life imprisonment including fine.[7]
- Rape of a judicially separated wife, the offense is punishable for imprisonment up to 2 years including fine.[8]
- Wife above 15 years of age but below 18 years of age, the offense is punishable like the offense of rape that is rigorous imprisonment up to 10 years, life imprisonment and shall also be liable for fine.[9]
In 2005, the Protection of Women from Domestic Violence Act,2005 was passed which although did not recognize marital rape as crime but did consider it as form of domestic violence[10]. Under this act, if a woman undergoes marital rape, she can reach out the courts and demand for judicial separation from the husband based on marital rape.
All the above legal statutes partially recognize marital rape as a crime but not fully accepted it as a serious issue which is penetrating deep in the society. Today, women are prone to domestic violence and marital rapes within those matrimonial walls. A home which is to be considered the forever house of the women according to the norms and traditions of the society, if that is not only safe for her, how can she be protected from the outside entities from committing those crimes and violations on women.
The Government need to understand the situation of women even inside those four walls after attaining the status of a women. This concept is open to judicial interpretation which gives us different views of different courts through various judgements throughout the years. There have been many judgments in favour of this issue and many against this issue.
Judgements in favour of Marital Rape in India
Although any of the judgements do not directly rule about marital rape but indirectly have discussed about sexual autonomy in a married relationship and right of consent of a women in married relationship.
State of Maharashtra v. Madhukar Narayan Mardikar, 1991[11]
The above is not a case of marital rape, yet this case reaffirmed that every woman has the right to privacy and bodily integrity, regardless of her background which means the woman can be a wife. However, the principle was not extended to marital rape by the court due to the Indian Penal Code, 1860 exception which was section 375 exception 2.
Sareetha v. T. Venkata Subbaiah, 1983[12]
In this case, the Andhra Pradesh High Court struck down section 9 of the Hindu Marriage Act,1955 as unconstitutional. Justice P.A. Choudary recognizing the concept of individual sexual autonomy through this case. Although it is not a case of marital rape, but this case challenged the wife being always available for sex. But this judgement was overruled by the next case.
Harvinder Kaur v. Harmander Singh Choudhary, 1984[13]
The Delhi High Court upheld the validity of section 9 of the Hindu Marriage Act, 1955 while rejecting the reasoning given in T. Sareetha’s case. This judgement reaffirmed the concept of marital unity, indirectly supporting the notion of marital intercourse is a right. Here the right of consent or sexual autonomy of an individual was not given any mention or explanation about the marital rape of the women a crime. Still this case is here since it repealed the judgement of the above case.
Independent Thought v. Union of India, 2017[14]
The Supreme Court read down the exception 2 to section 375 Indian Penal Code, 1860 to raise the age of consent for marital rape from 15 to 18 years. This case held that sex with a wife between 15 to 18 years of age amounts to rape. However, the exception for wives aged 18 and above remained valid but did not criminalize marital rape as a crime.
Joseph Shine v. Union of India, 2019[15]
The Supreme Court struck down the section 497 Indian Penal Code, 1860 as unconstitutional. It recognized sexual autonomy within marriage but did not rule on marital rape. But the judgement opened the doors for questioning the marital exception yet stopped short of doing so via this judgement.
RIT Foundation & Others v. Union of India, 2022[16]
This case was a constitutional challenge to marital rape exception under the Indian Penal Code, 1860. The bench of judges delivered a split verdict:
- Justice Rajiv Shakdher: The Hon’ble Judge held that exception 2 unconstitutional, called it discriminatory and violative of Article 14, Article 19 and Article 21.
- Justice C. Hari Shankar: The Hon’ble Judge upheld the exception, citing the sanctity of marriage and legislative domain.
- Matter referred to Supreme Court for final determination.
Supreme Court – Marital Rape Case Pending
As of May 2025, the Supreme Court has not yet delivered a final judgement on the constitutional validity of marital rape laws. The matter from RIT Foundation is still pending.
Judgements Not Favour of Marital Rape in India
Harvindra Kaur v. Harmander Singh Choudhry, 1984[17]
The Delhi High Court held the Validity of Section 9 of the Hindu Marriage Act.1955 was upheld (Restitution of Conjugal Rights). The judgement favoured the view that marriage imposes mutual rights, including the right to cohabitation, and did not recognize the individual sexual autonomy within marriage. This case rejected the autonomy-based arguments that led to support for the idea that forced sex within marriage is not rape.
Sowmithri Vishnu v. Union of India, 1985[18]
The Supreme Court of India upheld section 497 Indian Penal Code, 1860 (Adultery) and by extension, the notion that marriage creates a special legal status, including sexual rights. This case was not directly related to marital rape, but it reinforced the patriarchal structure of marriage, dismissing equal sexual rights within it.
Stainislaus v. State of Madhya Pradesh, 1977[19]
This was not a case of marital rape, yet this case reinforced the state’s right to regulate personal law and religious practices, often cited when courts decline to interfere with personal matters like marital rape, deferring to the legislature.
Queen Empress v. Haree Mythee, 1891[20]
The Calcutta High Court (British India) recognized the concept of marital rape partially as sexual intercourse with a wife under 10 years was rape but reaffirmed that husbands do have conjugal rights over their wives. This early colonial ear case laid down the ground for marital exception in Indian Law.
Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2018[21]
The Gujarat High Court expressed that criminalizing marital rape could not destabilize the institution of marriage and could be misused. Even though this court affirmed concern for women’s rights and issues yet did not rule in the favour of criminalizing marital rape in Indian laws.
Kamlesh Vaswani v. Union of India, 2013[22]
The case is pending in the Supreme Court of India but in the early hearings, the Supreme Court declined directions towards the issue of marital rape, leaving the matter to legislative policies.
Conclusion
The concept of marital rape is an issue yet destabilizes the institution of marriage as it could be misused. The Indian statutes are yet to recognize this as a crime since it can be misused by certain women to gain advantage but on this other hand the women suffer from this virus among the four walls should be provided with certain amount of legal protection. As discussed above, the Protection of women from Domestic Violence Act, 2005 gives certain provisions for protection against this issue yet separated should not be the only option for this issue. The government should legislate partially applicable laws for the protection of women from this violence. By doing so, the government will empower women from the violation of their modesty within those four matrimonial walls where her right to consent to sexual intercourse is not respected. Hence, with time this issue should be addressed with minor amendments and partial recognition of the issue in the legal statutes of India.
Reference(S):
[1] Student at Amity University Lucknow campus
[2] Amardeep Singh v. Harveen Kaur (2017) SCC OnLine P&H 1927
[3] Bodhisattwa Gautam v. Subhra Chakraborty (1996) 1 SCC 460
[4] (1889) 17 Indian Law Reports (Calcutta Series) 806
[5] The section 375 of the Indian Penal Code (45 of 1860) reads:
—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of thesix following descriptions:
First.— Against her will.
Secondly.—Without her consent.
Thirdly.— With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly.—With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.— With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.— With or without her consent, when she is under sixteen years of age.
Explanation Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception. —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
[6] Bharatiya Nyaya Sanhita (45 of 2023), section 63(4).
[7] Bharatiya Nyaya Sanhita (45 of 2023), section 63(3).
[8] Bharatiya Nyaya Sanhita (45 pf 2023), section 63(5).
[9] Bharatiya Nyaya Sanhita (45 of 2023), section 63(1).
[10] The Protection of Women from Domestic Violence Act, 2005, Section 3 Explanation 1 (ii).
[11] AIR 1991 1 SCC 57
[12] AIR 1983 AP 356
[13] AIR 1984 Delhi 66
[14] 2017 10 SCC 800
[15] 2019 3 SCC 39
[16] 2022 SCC OnLine Del 1410
[17] AIR 1984 Delhi 66
[18] AIR 1985 SC 1618
[19] AIR 1977 SC 908
[20] 1891 19 Calcutta 226 (PC)
[21] 2018 SCC OnLine Guj 732
[22] 2013 3 SCC 185
