Abstract
Marital rape, defined as non-consensual sexual intercourse within marriage, remains a contentious legal and social issue in India. While conceptually gender-neutral, empirical evidence indicates husbands predominantly perpetrate such acts against wives within patriarchal systems. This paper briefly examines the historical evolution, legal provisions, challenges surrounding marital rape criminalization in India at present and suggest the remedies.
Historically rooted in ancient civilizations where wives were treated as property in patriarchal system, marital rape has been gradually criminalized worldwide when feminist movement gathered momentum and women’s rights are recognized as human rights and Poland pioneered it through legislation. Unfortunately, India remains among 32 countries where marital rape is not criminalized, despite constitutional provisions guaranteeing equality and personal liberty. The Indian Penal Code’s marital rape exception (MRE) has undergone multiple amendments, with the Supreme Court’s 2017 judgment in Independent Thought v. UOI[1] raising the age of consent from 15 to 18 years, yet adult wives remain unprotected.
This paper throws light on statistical data of NFHS-4 and NFHS-5 to prove alarming prevalence rate of marital rape while acknowledging these figures do not reflect the correct picture because systematic under-reporting persists by the victims due to social stigma, economic dependence and absence of legal remedy.
This paper delves upon legal reform initiatives have faced resistance from multiple quarters. The Law Commission’s 42nd (1971) and 172nd reports (2000) rejected criminalization citing potential harm to marriage institutions. Courts, constrained by separation of powers doctrine, have repeatedly urged legislative action while acknowledging their inability to criminalize marital rape judicially.
This paper reflects about arguments supporting criminalization emphasize constitutional violations, international treaty obligations, and human rights principles and counter argumentsopposing it on the grounds of sanctity of marriage, protection of marriage institution, potential misuse, and evidentiary challenges. The paper concludes that criminalization is essential for protecting women’s dignity, bodily autonomy, and constitutional rights, while suggesting interim measures through divorce law amendments for immediate victim relief.
(Key words: Marital rape, Marital rape exception, Patriarchal, marriage, human rights)
Introduction
The institution of marriage in India occupies a unique position where personal autonomy intersects with cultural, societal and religious expectations, creating complex legal, ethical and religious dilemmas in the fast moving industrial world. Among these, the marital rape exception stands as one of the most contentious vestiges of colonial jurisprudence that continues to challenge contemporary constitutional principles. While the Indian Constitution guarantees equality before law and protection of life and personal liberty to all citizens, the exception carved out in Section 375 of the Indian Penal Code—now Section 63 of the Bharatiya Nyaya Sanhita, 2023—creates an anomalous legal framework where consent becomes irrelevant within the existing marriage. This paradox reflects deeper societal tensions between traditional patriarchal structures that view wives as extensions of their husbands’ identity and modern human rights evolution prioritize individual autonomy and bodily integrity. As India grapples with its obligations under international conventions like CEDAW while navigating domestic resistance to legal reform, the marital rape exception has evolved into a litmus test for the nation’s commitment to gender equality and constitutional values. The urgency of addressing this legal lacuna is underscored by alarming statistics from National Family Health Surveys, judicial pronouncements calling for legislative intervention, and the growing feminist jurisprudence that challenges the artificial distinction between marital and non-marital sexual violence. This article examines the historical evolution, constitutional implications, and contemporary debates surrounding marital rape in India, arguing that the continued existence of this exception not only violates fundamental rights but also perpetuates a legal fiction that undermines the very foundation of consensual relationships within marriage.
[1]AIR 2017 SC 4904