India: Law On Marital Rape – A Much Needed Reform In Our Legal System

Even as we celebrate 70 years of Independence, the women in our country are still not truly free and independent and continue to live under the realm of darkness and fear. It is indeed a somber reality of India.

It is a matter of concern, that while on one hand the country is celebrating some glorious decisions in the legal arena from the Hon'ble Supreme Court of India like landmark judgments in the matter of 'Adhaar Card Case' and '"Triple Talaq' creating new cornerstones for the judiciary; on the other hand, to the general disappointment, the Central Government has given its view against criminalizing marital rape, saying doing so would 'destabilize the institution of marriage'.

As observed by Justice Arjit Pasayat:

"While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female."

However, despite the increasing number of cases of marital rapes in our country, marital rape is not defined in any statue/ laws. It is to be noted that while 'Rape'" is defined under section 375 of the Indian Penal Code, there is no definition of 'Marital Rape' till now and there is no reorganization of marital rape under the ambit of Indian Law. It is disheartening that such a sensitive issue like marital rape is being dismissed by the highest courts of India by giving the view that "You are espousing a personal cause and not a public cause...This is an individual case."

In India, marital rape exists de facto but not de jure. While in other countries either the legislature has criminalized marital rape, or the judiciary has played an active role in recognizing it as an offence, in India however, the judiciary seems to be operating at cross-purposes.

Though marital rape is the most common and repugnant form of masochism in Indian society, it is hidden behind the iron curtain of marriage. The Hon'ble Supreme Court of India, the last hope for reforms in outdated approach towards marital rape after Parliament had hung up its boots, said that country isn't ready to accept marital rape as a crime. It can be seen that the law makers have a different view and believe marital rape cannot be applied in the Indian context because of factors like "level of education and illiteracy, poverty, social customs and religious beliefs".

Section 375, the provision of rape in the Indian Penal Code (IPC), echoes very archaic sentiments, mentioned as its exception clause- "Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape."

Section 376 of IPC provides punishment for rape. According to the section, the rapist should be punished with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine unless the woman raped is his own wife, and is not under 12 years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to 2 years with fine or with both.

Section 375 of the Indian Penal Code defines "Rape",

Operative part of the said section is reproduced herein below: 375. Rape.—A man is said to commit "rape" if he-—

  1. Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
  2. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
  3. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any of body of such woman or makes her to do so with him or any other person; or
  4. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

under the circumstances falling under any of the following seven descriptions:

Firstly,— 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 eighteen years of age

Seventhly, — When she is unable to communicate consent.

Explanation I—For the purposes of this section, "vagina" shall also include labia majora.

Explanation 2—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception I—A medical procedure or intervention shall not constitute rape.

Exception 2—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

The primary aim of the 2013 amendment was to make much needed changes to the definition of rape and to improve women's access to the legal system. The amendments to the Criminal Penal Code and the Evidence Act were aimed at ensuring that women are not re-victimized when they approach the legal system after an act of rape against them. The amendments sought to remove irrelevant medical examinations and unnecessary questions that women were asked during cross-examination, and to facilitate better investigation and trial in rape cases. However, despite the changes in law, the law makers and the governments have taken no step regarding framing of law for Marital Rape.

Even the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), of which India is a signatory, has viewed that this sort of discrimination against women violates the principles of equality of rights and respect for human dignity. Further, the Commission on Human Rights, at its fifty-first session, in its Resolution No. 1995/85 of 8-3-1995 titled "The elimination of violence against women", recommended that marital rape should be criminalized.

That Article 21of the Indian Constitution, incorporates the right to live with human dignity and is a standout amongst the most fundamental components of the right to life which perceives the independence of a person. The Supreme Court has held in a catena of cases that the offense of rape abuses the right to life and the right to live with human dignity of the victim of the crime of rape

In Bodhisattwa Gautam v. SubhraChakraborty28the court held that rape is a crime against the basic human right and violation of the right to life enshrined in Article 21 of the Constitution and provided certain guidelines for awarding compensation to the rape victim.

In the landmark case of The Chairman, Railway Board v. Chandrima Das29, the Hon'ble Court held that rape is not a mere matter of violation of an ordinary right of a person but the violation of Fundamental Rights which is involved. Rape is a crime not only against the person of a woman, it is a crime against the entire society. It is a crime against basic human rights and is violative of the victims most cherished right, namely, right to life which includes right to live with human dignity contained in Article 21.

That a reading of the aforesaid cases as well various other catena of the judgments and cases,it is ample clear that such an exception as "marital rape: us violative of the basic fundamental concepts on which our entire legal system is bases and such an except damages the entitlement of women to live with dignity and encourages the society to commit crime against the women, which in itself is unacceptable and against the principle and corner stones of the Constitution of India..

That the case of State of Maharashtra v. Madhkar Narayan30 the Supreme Court has held that every woman is entitled to her sexual privacy and it is not open to for any and every person to violate her privacy as and whenever he wished.

In the landmark case of Vishakha v. State of Rajasthan31 the Supreme Court extended this right of privacy in working environments also. Further, along a similar line we can translate that there exists a right of privacy to get into a sexual relationship even inside a marriage.

In Sree Kumar vs. Pearly Karun32, the Kerala High Court watched that the offense under Section 376A, IPC won't be pulled in as the spouse is not living independently from her husband under a declaration of partition or under any custom or use, regardless of the possibility that she is liable to sex by her better half without wanting to and without her assent. For this situation, the spouse was subjected to sex without her will by her husband when she went to live with her husband for 2 days as a result of settlement of separation procedures which was going on between the two parties. Subsequently the spouse was held not liable of raping his wife even though he had done so.

The judiciary appears to have totally consigned to the fact that rape inside marriage is impractical or that the disgrace of assault of a lady can be erased by getting her married to the attacker.

In 2005, the Protection of Women from Domestic Violence Act, 2005 was passed which although did not consider marital rape as a crime, did consider it as a form of domestic violence.33 Under this Act, if a woman has undergone marital rape, she can go to the court and obtain judicial separation from her husband. However, the same doesn't entirely protect the women from the crime has undergone.

The whole legal system relating to rape is in a mess, replete with paradoxes. The major legal lacunae that come in the way of empowering women against marital rape are:

  • The judicial interpretation has expanded the scope of Article 21 of the Constitution of India by leaps and bounds and "right to live with human dignity" is within the ambit of this article. Marital rape clearly violates the right to live with dignity of a woman and to that effect, it is submitted, that the exception provided under Section 375 of the Indian Penal Code, 1860 is violative of Article 21 of the Constitution.
  • Article 14 of the Constitution guarantees the fundamental right that "the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India". Article 14 therefore protects a person from State discrimination. But the exception under Section 375 of the Indian Penal Code, 1860, discriminates with a wife when it comes to protection from rape. Thus, it is submitted, that to this effect, exception provided under Section 375 of the Indian Penal Code, 1860, is not a reasonable classification, and thus, violates the protection guaranteed under Article 14 of the Constitution.

That it is pertinent to state that in the absence of a law, there is no data on the number of cases of marital rapes being reported. It is pertinent to note that the criminal law is in the Concurrent List and is implemented by the States. There is a vast diversity in the cultures of the states. And hence, in view of the same it is necessary for the State Government to take stringent steps in this regard. That in the era of legal reforms and revolutions, it is of utmost importance to take steps towards criminalizing marital rape so that we can move a step forward towards the road of progress in real sense. In a country like India, such a reform is far from the reality as neither the lawmakers of this country nor the Indian judicial systems are prepared to bridge the gap between marital rape and rape as they are both heinous crimes which could scar the victim for life.


28. AIR 1996 SC 922

29. MANU/SC/0046/2000

30. AIR 1991 SC 207

31. AIR 1997 SC 3011.

32. 1999 (2) ALT Cri 77

33. The Protection of Women from Domestic Violence Act, 2005

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions