POLITICAL SCIENCE PROJECT

MARITAL RAPE IN INDIA: AN ANALYSIS

A RESEARCH PAPER

TEAM- ANNANYA KAUL (02120421824)

NAISHA JAIN (02520421824)

PRANITI (08720421824)
ABSTRACT

Marital rape is protected by Exception 2 to Section 375 of the Indian Penal Code, making it a
significant but unresolved issue in Indian law. As long as the wife is above 18 years of age, this
exception offers legal amnesty for non-consensual sexual relations within the marriage. This
exemption functions to directly erode a woman’s right to bodily autonomy and cachet. This research
paper critically explores the legal stand on marital rape in India, analysing key judgements,
constitutional principles, and the dynamic rhetorics on gender justice.

The paper looks into significant cases such as Independent Thought v. Union of India (2017) and
Joseph Shine v. Union of India (2018), which underscores the judicature’s cognizance of individual
rights within interpersonal relations. It also assesses the Supreme Court’s and High Court’s
interpretation of consent, cachet, dignity, virtue, and equality, contradicting them with the
legislature’s disinclination to proscribe marital rape. Furthermore, this study engages with
international legal schemata and human rights conventions that campaign for the recognition of
marital rape as a crime, headlining the urgent requirement for legal amendments in India.

This article argues that the marital rape exception is a legal anomaly that violates cardinal liberties by
confirming court rulings, constitutional protections, and international agreements. It calls for a
modern judicial and legislative proposition to denudate this inconsistency, establishing women’s
legal and personal autonomy within marriage. The findings of this study accord to the expansive
disquisition on gender justice, urging the Indian legal system to comply with global human rights
standards and endorse the dicta of equality and justice.
INTRODUCTION

The word ‘rape’ is derived from the Latin word rapere which literally means to seize, snatch, or grab.
The first recorded use of this word has been in the 13 th century. Today, we define rape as a type of
sexual assault, which may or may not involve sexual intercourse, or any other forms of sexual
penetration, carried out without the consent of the individual. This act may be carried out using
physical force, coercion, abuse of authority, or against a person who is incapable of giving valid
consent, such as one who is unconscious, incapacitated, has intellectual disability(s), or is below the
age of consent (statutory rape). Conventionally, when one thinks of rape, a stranger as the arbitrator
is the first thought. However, marital rape is a gruesome reality in all parts of the world. According to
UN Women Asia and the Pacific, approximately 33% of partnered women aged 15-49 have
experienced sexual assault from their partner at least once in their lifetime. In India, the National
Family Health Survey conducted between 2019 and 2021 revealed that nearly 32% of married
women aged 18-49 had experienced physical and/or sexual abuse at the hands of their partners.
Additionally, comparisons between the NFHS data and the National Crime Records Bureau statistics
indicate that less than 1% of such incidents are reported. According to RIT Foundation, 1 in 3 men in
India admit to raping their wives and one Indian woman is raped by her husband every 3 seconds.1

According to Exception 2 of Section 375 of the Indian Penal Code, ‘Sexual intercourse or sexual acts
by a man with his own wife, the wife not being under 18 years of age, is not rape.’ In most societies,
this exemption has been historically prevalent – this essentially provided husbands with a ‘license to
rape’. The foundation of this exemption may be traced back to Sir Matthew Hale, Chief Justice in
17th century England and his statement that, “But the husband cannot be guilty of rape committed by
himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath
given herself up to her husband, which she cannot retract.”2

The concept of marital rape immunity was based on the assumption of ‘irrevocably implied consent’
after marriage. The other traditional justifications were the common law doctrines that a woman was
the property of her husband and that the legal existence of the woman was “incorporated and
consolidated into that of the husband.”3

1
Marital rape is not a crime in India. It needs to be, EQUALITY NOW (Jan. 31, 2020), https://www.equalityno
w.org/marital_rape_is_not_a_crime_in_india_it_needs_to_be.
2
Hale, M. (1736). The history of the pleas of the Crown (G. Emlyn, Ed., Vol. 1, Ch. 58). E. and R. Nutt, and R. Gosling.
(Original work published 1678)
3
To have and to hold: The marital rape exemption and the Fourteenth Amendment. (1986). Harvard Law Review, 99(6),
1255–1273
LEGAL FRAMEWORK GOVERNING MARITAL RAPE IN INDIA

Marital Rape, or the non-consensual sexual intercourse (or any other sexual activity) which involves
individuals which are legally married remains one of the most debated legal issues in India. While
multiple countries have taken the stride to criminalize marital rape, India seems to be stuck in the
past. This reluctance has manifested as Exemption 2 to Section 375 of the Indian Penal Code which
does not recognize non-consensual sexual intercourse within marriage as rape.

The roots of this exception can be traced back to a colonial-era legislation, which was under the
influence of 17th century common law. According to Supreme Court judge Sir Matthew Hale’s legal
doctrine, put forward by him in his book, The History of the pleas of the Crown, he held that women
entered into a contract at the time of marriage and that irretrievable consent to sexual intercourse was
one of the terms of the contract. This unquestionably shielded husbands from being prosecuted for
rape. In 1860, when Lord Macaulay drafted the Indian Penal Code, this outdated maxim was also
included4, indicative of the prevalent patriarchal mindset of the time. However, even after the
formulation of the Indian Constitution after 1947, this exemption remains largely altered (with the
only change being the explicit mention of the women’s age having to be greater than 18 in order for
the exemption to apply). This highlights a ‘colonial inheritance’ and an extant patriarchy.

This immunity to husbands however does not exempt him from other overlapping crimes such as
intentionally causing pain or distress during natural or unnatural sexual intercourse. He may be
prosecuted under Sections 3235, 3246, 3257, 3428, 3549, 354A10, and 37711. He may also be prosecuted
under the Domestic Violence Act, 2005. In cases falling under the jurisprudence of the Protection of
Women from Domestic Violence Act, 2005, affected women can seek civil remedies such as
protection rights, restraining orders, residence rights, and monetary relief. Additionally, this
exemption does not protect husbands from prosecution for non-consensual sexual intercourse (or any
other sexual activities) in case of judicial separation (divorce) or annulment of marriage.

JUDICIAL PERSPECTIVE ON MARITAL RAPE

4
Macaulay, T. B. (1837). Draft of the Indian Penal Code. Law Commission of India.
5
Section 323 of the Indian Penal Code delas with punishment for voluntarily causing hurt to another individual.
6
Section 324 of the Indian Penal Code deals with the punishment for voluntarily causing hurt to another individual using
dangerous weapons or means.
7
Section 325 of the Indian Penal Code deals with punishment for causing grievous hurt to another individual.
8
Section 342 of the Indian Penal Code deals with punishment for wrongful confinement of another individual.
9
Section 354 of the Indian Penal Code deals with assault on a woman with the intent to outrage her modesty.
10
Section 354A of the Indian Penal Code criminalizes sexual harassment.
11
Section 377 of the Indian Penal Code criminalizes the act of wilfully harming the dignity of a deceased individual.
Key judgements and Case Analyses-

Independent Thought v. Union of India (2017): In 2013, Independent Thought, a child rights
organisation filed a writ petition in public interest before the Supreme Court of India. The Court was
presided over by Hon’ble judges Madan B Lokur and Deepak Gupta. This petition challenged the
constitutionality of Exception 2 of Section 375 of the IPC. The claimants purported that this
provision infringed upon the rights of a married girl child between the ages of 15-18. 12 In all other
cases falling under the jurisprudence of the IPC, the age of consent for sexual intercourse (or any
other sexual activity) was 18; however, the implied age of consent in regard to this section was 15.
The petition sought clarification in this matter. The Court delivered a detailed judgement. The Court
agreed with the petitioner’s arguments that Exception 2 violated Article 14 13 of the Constitution and
failed to establish a fair categorization. Additionally, it was noted that this exemption also blatantly
violated the right to live a dignified life with basic autonomy and safety, as enshrined in Article 21 14
of the Constitution. The Court also noted even though a majority of laws [such as Protection of
Children from Sexual Offences (POCSO), the Prohibition of Child Marriage Act, 2006 (PCMA) and
the Juvenile Justice(Care and Protection of Children) Act, 2000] consider anyone below the age of 18
a minor and therefore incapable of consenting to sexual intercourse (or any other sexual activity),
Exception 2 permitted husbands to engage in non-consensual sexual intercourse (or any other sexual
activity) with their wives, who had attained an age greater than that of 15. After hearing all claims,
and after careful deliberation, the Court held Exception 2 to Section 375 to be against the provisions
and objectives of POCSO and social welfare aims of Article 15(3) 15. Therefore, the Court deemed
necessary to change the age valid for this immunity from 15 to 18. A thorough examination of the
right to privacy in regard to this clause would have broader implications for the legitimacy of marital
rape in general. However, the Court did not go into detail about privacy and sexual violence since
doing so would inevitably involve a decision regarding the legality of marital rape. While marital
rape remains decriminalized for adult women in India, this ruling established the confirmation that
adolescents (any individual below the age of 18) cannot give their consent for sexual intercourse (or
any other sexual activity), thereby categorizing such cases as rapes. This judgement also stressed that
marriage cannot supersede a child’s right to integrity and also served as a deterrent to child
marriages.
12
Prior to the judgement of Independent Thought v. Union of India (2017), Exception 2 of Section 375 of the Indian
Penal Code stated that ‘Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years
of age, is not rape.’
13
Article 14 of the Indian Constitution states that all citizens of India are equal before the law and have the right to
equal protection of the law.
14
Article 21 of the Indian Constitution guarantees the right to life and personal liberty.
15
Article 15(3) of the Indian Constitution allows the state to make special provisions for women and children.
Joseph Shine v. Union of India (2018): The Supreme Court of India, by a unanimous decision,
overruled Section 497 of the IPC, decriminalizing adultery. Originally, the provision held men alone
responsible for adultery and treated women as passive victims, without any agency. The Court ruled
that Section 497 is against Articles 14, 15, and 21 of the Indian Constitution. The bench, led by Chief
Justice Dipak Misra, struck down Section 497 and Article 198(2) of the CrPC, reaffirming that
marriage does not diminish a woman’s autonomy and spouses in a matrimonial relationship do hold
personal liberty. The judgement established that criminal law must not intrude into intimate moral
decisions of consenting adults. Notably, though adultery was decriminalized, it remained a valid
cause for divorce. The ruling favoured gender equality, and asserted women’s dignity and autonomy
in marriage, implicitly backing arguments about issues such as marital rape.

RIT Foundation v. Union of India (2022): In 2015, the RIT Foundation, along with some other
petitioners filed a Public Interest Litigation (PIL), challenging the constitutionality and legitimacy of
Exception 2 of Section 375 of the Indian Penal Code. The petitioners argued that this exception
violated the cardinal liberties as enshrined in Part III of the Indian Constitution, specifically Articles
14, 1916, and 21. The petitioners stressed that marriage should not be a license for sexual violence
and highlighted the discriminatory nature of the exemption, which assumes implied consent to sexual
intercourse (or any other sexual activity) for the duration of the marriage. The Union Government of
India opposed the plea, asserting that criminalizing marital rape could have concerning repercussions
of the institution of marriage in India – the risks of abuse laws and the possibility of misuse were
government concerns. Moreover, it stresses that this issue needed a legislative solution, not a judicial
correction. After extensive investigation, the High Court of Delhi delivered a split verdict. Justice
Rajiv Shakdher held the marital rape exception unconstitutional, and underlined that this exception
violates women’s fundamental rights and is blatantly oppositional to the principle of bodily
autonomy. Justice C Hari Shankar upheld the constitutional validity of the exceptions, stressing that
the solution of this matter lay in the legislation, and not in the judiciary. Due to the split decision, the
matter was referred to the Supreme Court of India for a conclusive judgement. A five-judge bench
was constituted for this matter, and an amicus curiae was also appointed. The decision was reserved
by the Court in early 2024, keeping in mind the large-scale implications of this judgement. The
Supreme Court’s final verdict is still awaited.

16
Article 19 of the Indian Constitution guarantees the right to freedom of speech and expression, to assemble
peacefully and without arms, to form associations and cooperatives, to move freely throughout the territory of India, to
reside and/or settle in any part of India, and to practise any profession, or to carry on any occupation, trade, or
business.
Judicial Interpretation of Consent, Equality, and Dignity-

1. Consent: Consent in Classical Liberal Theory refers to the “expression of autonomy and free
will by competent and rational individuals who are free from coercion and pressure 17.”
Explanation 2 of Section 375 of the IPC defines consent as an unequivocal, voluntary
agreement when the woman, by words, gestures, or any form of verbal or non-vernal
communication, communicates willingness to participate in the specific sexual act; provided
that a woman who does not physically resist to the act of penetration (or any other related
activity) shall not by the reason only of the fact, be regarded as consenting to the activity.
This definition was added after the Criminal Law Amendment 2013, before which consent
during rape was a legal grey area. The subjective experiences of all victims must be validated
by any consent standard that aims to efficiently and meaningfully classify non-consensual
sexual intercourse (or any other sexual activity) as ‘rape’, keeping in mind that consent
defined as implicit approval or non-resistance is not strong enough to protect a women’s
autonomy and bodily dignity.
2. Equality: The Indian Constitution defines equality using legal provisions such as Article 14
(equality before law and equal protection of law), Article 15 (prohibition of discrimination) 18,
Article 17 (abolition of untouchability), and Article 18 (abolition of titles) 19. Equality is not
absolute; reasonable classifications are permissible when founded on intelligible distinctions
and those that maintain a rational connection to the law’s objectives 20. Judicial bodies have
also recognized that formal equality, which entails identical treatment, is inadequate in a
society characterized by deep-rooted inequalities. Consequently, affirmative measures are
deemed constitutionally valid21. The Court also invalidates discriminatory employment
practises against women, in the name of efficiency of outcome 22. Courts have also recently,
embraced an intersectional approach, taking into account the culminative impact of factors
such as caste, gender, and class to provide a tailored version of equality.
3. Dignity: The right to dignity, particularly derived from Article 21 of the Constitution, has a
significant impact on the rhetoric of marital rape. Indian Courts have repeatedly interpreted

17
Hunter, R., & Cowan, S. (2007). Introduction. In R. Hunter & S. Cowan (Eds.), Choice and consent: Feminist
engagements with law and subjectivity (pp. 1–9). Routledge-Cavendish.
18
No law can stop the state from making welfare schemes and/or announcing reservations for women, children,
scheduled castes, or scheduled tribes-and these will not fall under the category of discrimination, but rather welfare.
19
Article 18 of the Indian Constitution abolishes all titles except for academic and/or military distinctions.
20
As established in case of State of West Bengal v. Anwar Ali Sarkar, 1952
21
As established in Indra Sawhney v. Union of India, 1992
22
As established in the case of Air India v. Nergesh Meerza, 1981
 Article 2123 to include right to life with dignity, encompassing bodily autonomy, personal
liberty, as well as protection from exploitation. Multiple courts have already opined that non-
consensual sexual intercourse (or any other sexual activity), even if it is within a marriage,
harms the dignity of the woman, and goes against Articles 14 and 21 of the Indian
Constitution; however, this exemption has not yet been scrapped since the courts are of the
opinion that this matter falls under the jurisdiction of the legislature, and that a judicial
review would not help much. The large-scale implications of such a change in a society like
India is also one of the concerns of the judiciary.

CONSTITUTIONAL ANALYSIS

Parliamentary Debates on Marital Rape-

The persistence of Exception 2 of Section 375 of the IPC raises several questions and has led to
significant parliamentary discussions on the topic of marital rape and related legalities – this issue
has also garnered judicial scrutiny. Throughout the years, many law commissions and judicial bodies
have been assigned the task of scrutinization of the marital rape exemption. For example, the Justice
Verma Committee which had been set up following the 2012 Nirbhaya gangrape incident, suggested
criminalizing marital rape. Nevertheless, the government and the legislature has persistently
contended against this.

In December 2024, the Home Ministry (Minister of State for Home Affairs Bandi Sanjay Kumar)
informed the Rajya Sabha that there were no plans to criminalize marital rape, stating that current
laws and protections, such as the Protection of Women from Domestic Violence Act, 2005,
adequately safeguarded married women. The Ministry also highlighted that criminalizing marital
rape might result in misuse of this provision and wrongful claims.24

23
Article 21 of the Indian Constitution guarantees to all citizens the right to life and personal liberty, except under
procedure established by law.
24
Times of India. (2024, December). No proposal to criminalise marital rape as BNS law against domestic violence
protects married women: Govt in RS.
Previously, in January 2022, Union Minister Smriti Irani voiced worries over the over-
criminalization, contending that not every marital issue ought to be seen from a criminal perspective.
She emphasized the importance of balancing women’s rights with the sanctity of marriage.25

Additionally, a parliamentary report from March 2013 raised concerns that making marital rape a
crime might interfere with family dynamics and potentially be used for harassment. These concerns
have been raised multiple times in the Assembly, with many members highlighting the effectiveness
of therapy and rehabilitation rather than punitive measures.26

Arguments against the Criminalization of Marital Rape-

One of the most commonly mentioned arguments against the criminalization of marital rape is the
perceived sanctity of a marriage. A marriage is often regarded as a private institution, where external
interference, especially in the matter of sexual relations, is deemed inappropriate. Opponents argue
that this criminalization would give an ‘immoral justification’ to the state to interfere in family
matters. The principle of marital privacy27 posits that within a marriage, problems that arise should
be addressed and managed without resorting to criminal prosecution except in cases of gross abuse
and/or violence, in which separation via divorce as a civil remedy may be sought. Questions arise
about whether the state should regulate consensual sexual dynamics between spouses and where the
line should be drawn.

Critics say that for the law against marital rape to be effective, there also arises the possibility of
misuse. In India, where matrimonial relationships are greatly influenced by family values, the worry
exists that such clauses can be used to vex husbands and their families. Similar apprehensions have
emerged with other gender driven laws in the country like the IPC Section 498A 28, where there is
evidence of misuse. One area that has significant focus is the fear of proliferation of false accusations
that is going to occur with the criminalization of marital rape. In hostile marriages, claims of marital
rape might be used as a weapon to fight for custody, alimony, or even during division of property.

Establishing evidence for marital rape is immensely difficult. Like many acquaintance or stranger
rape cases, marital rape happens within the confines of a private environment and is less likely to

25
The Indian Express. (2022, January). Parliament Budget Session Live Updates: Smriti Irani on marital rape debate.
26
Press Trust of India. (2016, March 15). Criminalizing marital rape will hurt family, says parliamentary panel. The Times
of India.
27
Griswold v. Connecticut, 381 U.S. 479 (1965).
28
Section 498A of the Indian Penal Code protects married women from cruelty at the hands of their husbands or their
in-laws. The offence is cognizable and non-bailable and the punishment is upto 3 years imprisonment.
have witnesses. The dearth of witnesses and proof makes substantiating claims very problematic.
Sceptics are of the view that making laws against marital rape will facilitate ‘he said, she said’
situations which could render injustices. Additionally, the legal procedure is also made complex by
the challenge of differentiating between sex which is consensual and non-consensual within a
marriage.

Others contend that sufficient legal provisions are already in place to safeguard against sexual
violence in marriage. For example, under the Protection of Women from Domestic Violence Act,
2005, a wife may approach civil courts for protection orders, restraining orders, residence rights, and
monetary relief. Section 498A of the IPC also deals with cruelty by the husband or his family. Critics
contend that rather than criminalizing marital rape, improving these existing measures would be
more efficient and less disruptive to family harmony.

Critics are also concerned that criminalizing marital rape may result in the breakdown of the marital
relationship. They stress that criminalizing sexual intercourse between spouses may create distrust,
discourage reconciliation, and even result in a rise in the number of divorces. Since marriage is
traditionally viewed as a lifelong and sacred union, especially in India, critics feel that criminal
penalties should not be imposed on such a relationship. There is apprehension that criminalization
could stigmatize normal marital disagreements or sexual dissatisfaction as criminal conduct.

Instead of criminalizing marital rape, others propose awareness campaigns, marital counselling, and
sex education to encourage respectful relationships. Education for consent and mutual respect in
marriage can be more effective in the long term than punishment. Counselling and mediations
could deal with marital issues behind the crime without resorting to criminal prosecution.

India's judicial system is already saturated with a pending caseload. Critics say criminalizing marital
rape would further burden the judiciary’s docket, causing lengthy litigation and more delays in the
delivery of justice. The nature of such cases, with the personal and emotional considerations
involved, may also additionally strain the legal system.

Additionally, India’s socio-cultural environment is heterogenous, and there are differing attitudes
towards sexuality and marriage. In most cultures, sexual intercourse is considered as an essential
component of marriage. So, some critics also believe that applying Western legal norms to Indian
marital relationships could ignore local cultural realities. They emphasize that criminalizing marital
rape could destabilize family structures, particularly in conservative communities, and destroy the
traditional concept of marriage
Arguments for the Criminalization of Marital Rape-

It is necessary to criminalize marital rape in order to maintain a woman's constitutional right to

equality, dignity, and personal liberty as provided for in the Constitution of India. Article
14 guarantees equality before law, Article 15 guarantees against discrimination on the grounds of
sex, and Article 21 ensures the right to life and personal liberty. Granting exemption from criminal
prosecution to marital rape derogates from these constitutional rights by discriminating between
married and unmarried women. Also, consent is the foundation of any sexual relationship. Marriage
cannot mean unfailing consent to sex. Criminalization of marital rape acknowledges that a spouse's
autonomy and bodily integrity should be respected regardless of whether or not they are
married. The suppression of non-consensual sex in marriage makes the violation of women's
autonomy seem normal and continues the myth that marriage equates to unconditional sexual access.

The existing legal code is contradictory. While the IPC criminalizes sexual violence by a stranger – it
excludes spouses, suggesting that the right of a woman to choose is lost when she gets married.
Moreover, judicial rulings have supported criminalization of sexual assault in separated/ divorced
couples, pointing out the inconsistency in excluding married cohabitating couples
Removing the exemption would reconcile India's law provisions with elements of justice and equity.
Criminalizing marital rape would increase legal accountability and deterrence. No
law can ever end crime completely, but legal punishment is essential to preventing violence and to
holding accountable the offenders. Without the fear of punishment, marital rape can continue
uninterrupted, allowing for the continuation of patterns of abuse.

Marital rape is a type of domestic violence that usually accompanies physical, emotional, and
economic abuse. Identifying it as a criminal act allows survivors to access complete legal protection.
The Protection of Women from Domestic Violence Act, 2005
(PWDVA) offers civil relief but does not have criminal provisions for marital rape. Criminalization
would close this legal loophole, providing preventive and punitive options. Moreover, Marital rape
has serious physical and psychological effects on survivors, such as injuries, sexually
transmitted diseases, depression, anxiety, and post-traumatic stress disorder. Identifying it as a
criminal act is essential to help ensure that survivors get proper medical attention, counseling, and
legal assistance. Neglecting the trauma of marital rape violates public health and human rights.

The marital rape exemption is based on outmoded patriarchal attitudes that treat wives as property of
the husband and/or inferior to the husband. Criminalizing marital rape overturns these damaging
stereotypes, bolstering gender equality, and affirming that marriage is a mutual partnership, based on
respect. Legal reform in this regard is essential to breaking down systemic gender-based
discrimination.

More than 75 nations have criminalized marital rape, realizing that it is a human rights violation.
Nepal and Bhutan, countries with similar socio-cultural contexts, have initiated this process. India is
also a signatory to several international treaties and conventions, including CEDAW 29. Therefore,
criminalizing marital rape aligns with India’s international obligations and reflects global human
rights standards.

Legal recognition of marital rape serves as a powerful tool for raising awareness and changing
societal attitudes toward consent and gender relations. Criminalization would send a clear message
that non-consensual sex, regardless of the relationship between the parties, is unacceptable.

SOCIOLOGOCIAL AND PSYCHOLOGICAL DIMESNSIONS

Due to the mere repetition of the act, it can be noticed that people have started to look at it with a
sense of normalcy considering rape, in general to be a normal occurrence in a society. When penned
down, it seems all too ghastly to have to even think this horrid act to be something people are used to
listening or having knowledge of with regard to their environment. Such behaviours have huge
sociological and psychological implications. Even though the community is aware of the immoral
and unjust concept and consequences of the act, the timely occurrence of the actions numbs the
altitude of a section created by it in the first place creating a huge dent in the sociological outlook of
the community. A psychological term that refers to erratic or inhumane behaviour being accepted in
society due to its repetition is "cultural normalisation of deviance". Another term related to the
concept being spoken about is "collective desensitisation" where the repeated exposure to abhorrent
behaviour reduces emotional sensitivity. These psychological factors play an undeniably significant
role in how marital rape has been historically overlooked and even justified in societies through now
widely recognised insensitive measures. The extensive and elongated social conditioning of women
that has been taking place since the dawn of civilization be it under the loops of patriarchy which has
always been considered normal, told and taught to be that natural state of a airs of a communal
29
CEDAW: The Convention on the Elimination of All Forms of Discrimination against Women
setting. For the sake of honouring this pseudo prestige, women have been encouraged to put their
needs, wants and opinions to silence. To not have any sense of identity or individuality without a
male head or counterpart. There is a lot of psychological impact that has been and is being caused in
many women through the generations due to this increased level of dependency on others for basic
life survival skills. When such instances like marital rape occur, women go in an inferiority complex
and become prone to PTSD (post-traumatic stress disorder) and other psychological conditions. Such
psychological conditions can impact their behaviour, senses and perception of the world which can
make their whole life perishable. Such behaviours can have a serious impact on the person and the
individuals in the close environment of that person as well.

ECONOMIC IMPLICATIONS

We have till now established the lack of individuality that has been forcefully cultivated in women in
many societies and how many of them still continue to do so that result in lasting psychological and
sociological impacts. Due to these terms, many women find it difficult to fight against the system
without the necessary academic credentials and a stable monthly income as they have been
conditioned to be dependent on their partners. Situations like these make the victim prone to
silencing themselves and subjugating to the hierarchy that people fail to acknowledge as the world's
reality. Even if they do have the credentials and stable income, the average working class woman
earns 77 cents for every dollar earned by a man. 30 The wage gap provides an advantage for men to
be more likely to be able to afford lawyers and survive the judicial process. The expenses of marital
rape due to the necessary healthcare and mental health services an individual requires is also an
additional burden on the victim. In 2017, CDC (Centre's for Disease Control and Prevention)
published a study, ‘Lifetime Economic Burden of Rape Among U.S. Adults’ in the American Journal
of Preventive Medicine to address this gap in our knowledge (Peterson, DeGue, Florence, & Lokey,
2017). This study uses mathematical modelling to estimate the lifetime per-victim and total
population economic burden of rape among adult men and women in the US. Data sources include
previous sexual violence research, administrative data systems (e.g., health care, criminal justice),
and surveillance data from CDC’s 2011 National Intimate Partner and Sexual Violence Survey

30
UN Women. (n.d.). Equal pay for work of equal value. UN Women. Retrieved April 1, 2025, from
https://www.unwomen.org/en/news/in-focus/csw61/equal-pay
(NISVS). Due to limitations of the available research literature and data, the estimate is limited to the
costs associated with rape, specifically, and does not include other forms of sexual violence. This
study has two key advantages over prior estimates of the economic burden of rape. First, the costs
included are more comprehensive. While prior research was often limited to criminal justice-related
expenditures, CDC’s estimate includes costs for 14 categories of health conditions (e.g., injuries,
depression, PTSD, substance abuse, cervical cancer, rape-related pregnancy) linked to rape
victimization based on a systematic review of the sexual violence research literature. In addition,
costs associated with criminal justice response (i.e., investigation, adjudication, incarceration), victim
and perpetrator lost work productivity, and property loss/damage during the offense are included for
a more complete estimate of the impact on the economy. Second, while prior studies often based the
total burden estimate on the number of rapes reported to law enforcement, CDC’s estimate uses
national surveillance data from NISVS, identifying many more individuals as victims — based on
self-report — than past research using social reports. Details of the study’s methods and limitations
are available in the published article. Using these methods, CDC estimates that the per-victim
lifetime cost of rape is $122,461. We can also interpret this estimate as the costs averted for each
potential victim who does not experience rape. When this per-victim cost is multiplied by the
estimated 25 million reported adult victims of rape in the US, we find that rape will cost the
economy approximately $3.1 trillion dollars over the lifetimes of those 25 million victims. Of this
total, government sources pay an estimated one third ($1.1 trillion) of the lifetime economic burden.
This hidden economic burden pushes people to opt for numbing their voices, supress their
experiences and emotions resulting in it highly impacting their immediate surroundings and their
environment.

MEDIA, LITERATURE AND CULTURAL REPRESENTATION

The portrayal of marital rape has always raised eyebrows, be it through cinema or literature and has
been a significantly low and a barely explored area despite its repetition in occurrence being in our
knowledge. Movies like Nishant (1975, India), Sleeping with the Enemy (1991, USA), Agni Sakshi
(1996, India), Te Doy, Mi Ojos (2003, Spain), Provoked (2006, UK), Mrs. (2025, India) etc.
showcase the state our society is in. Many films and TV shows romanticize forced intimacy within
traditional marriages, portraying it as a "duty" or a sign of a husband's authority. In up-coming
narratives, a wife's refusal is sometimes framed as "playing hard to get," reinforcing the idea that
consent is unnecessary in marriage. Acts as such should be shameful for the guilty not the victim but
yet for ages the victims are the ones to have suffered the consequences instead of the other way
around. Our society looks down upon people who go through such experiences instead of uplifting
them and encouraging them to make something better out of their life and not let one incident define
it. Media's negative portrayals of marital rape can reinforce harmful stereotypes, trivialize the crime,
and discourage survivors from seeking justice. Some news reports subtly blame the victim,
questioning their behavior or attire. Survivors are often portrayed as dramatic or exaggerating their
experiences, making it harder for their stance to be taken seriously and gain public support. Many
mainstream media outlets avoid discussing marital rape, contributing to the perception that it does
not qualify as a serious issue worth our time and attention. If the topic is covered, it is presented as a
"gray area," creating confusion about whether it qualifies as criminal. This reinforces the belief that
husbands have an unquestionable right to their wives’ bodies. Religious or traditional media
platforms sometimes use their holy scriptures or cultural norms to justify non-consensual sex in
marriage. Some media platforms exploit cases of marital rape for their own monetary profit without
advocating for change. To explain this view the news coverage may focus more on the perpetrator’s
reputation or future for example: “successful businessman accused of rape” rather than the survivor’s
trauma and justice they deserve. Digital movements have played a transformative role in raising
awareness among the public, challenging the stagnant societal norms and pushing towards a amative
action through legal reforms. Before digital activism, marital rape was often dismissed as a private
issue. Hashtags like #MeToo and #MaritalRapeCriminalization have encouraged survivors to share
their stories, exposing the widespread nature of the crime. They no longer feel isolated, as social
media provides a space for solidarity, emotional support, and external validation. By amplifying
voices, these platforms reshape discussions around consent, emphasizing that marriage does not
mean ownership. Many high-profile figures have been exposed through social media campaigns,
showing that even powerful individuals can be held responsible. The fear of public backlash and
cancel culture has made institutions take allegations more seriously, though challenges remain.
Countries like India, where marital rape is still not fully criminalized, have seen increased pressure
due to online activism. Digital movements have led to petitions, legal debates, and government
discussions on criminalizing marital rape worldwide.
ROLE OF PERSONAL LAWS IN PERPETUATING THE EXCEPTION

Indian Law, under the Constitution, supports coexistence among personal laws despite
acknowledging the pluralism of society. Legal pluralism has routinely resulted in solidification of
oppressive customs. Personal laws, with an immunity granted against uniform standards in civil
spheres have often enforced practises, that undermine a section of society.

Indian courts have traditionally been chary of encroaching into issues that have been considered
personal. Though progressive judgements in support of women’s rights have emerged, the courts
have generally privileged the institution of marriage against individual’s rights in cases regarding
conjugal rights or other marital issues. The Supreme Court’s recognition of privacy as a
constitutional right in Justice KS Puttaswamy v. Union of India (2017) and sexual autonomy in
Navtej Singh Johar v. Union of India (2018) offer windows of opportunity to challenge marital rape
exception. However, courts have not yet squarely addressed how personal laws and customs clash
with constitutional rights in the case of marital rape.

Indian personal laws dealing with marriage, divorce, and succession draw upon religious law and
traditional practises. According to Hindu, Muslim, Christian, and other personal laws, marriage has
always been perceived as a sacrament or agreement entailing specific duties and obligations upon the
couple. Historically, these laws have put particular stress upon the husband’s right and wife’s duty of
granting conjugal rights. The idea of ‘conjugal rights’ was invoked to legitimatize non-consensual
sexual intercourse (or any other sexual activity) in marriage, thus, institutionalizing the marital rape
exception. For example- under the Hindu Marriage Act, 1955, marriage is viewed as
a divine and irreversible union. Traditional Hindu mores stress upon a woman’s obligation to obey
and serve her husband, including catering to his sexual needs While the Act allows divorce on the
grounds of cruelty, it does not consider non-consensual sexual intercourse (or any other sexual
activity) during marriage, unless associated with brutal violence or mental torture 31. Muslim personal
laws, based on Sharia principles, focus on the husband’s responsibility to provide maintenance and

31
Manusmriti 5.154: "Though destitute of virtue, or seeking pleasure elsewhere, or devoid of good qualities, a husband
must be constantly worshipped as a god by a faithful wife."
Yajnavalkya Smriti (Chapter 1, Verse 85): "The wife should always be devoted to her husband and obey his commands,
and she should be pure in conduct and intent on pleasing him."
the duty of the wife to be consent for sexual intercourse (or any other sexual activity). 32 Cultural
interpretations tend to be biased towards male supremacy. Additionally, the institution of nushuz
(wife’s disobedience) can be used to justify coercive sexual intercourse (or any other sexual activity).
Christian and Parsi personal laws also emphasize marital responsibilities based on religious tenets.
The Christian Marriage Act, 187233, and the Parsi Marriage and Divorce Act, 1936 34, though enacting
grounds for divorce, neither directly discuss non-consensual sexual intercourse (or any other sexual
activity) within marriage, not acknowledge male entitlement.

It is evidently clear that customary traditions, cultural norms, and religious view has had a significant
impact on the behavioural expectations of both men and women. This expectation has manifested
itself in the form of a legality.

INTERNATIONAL LEGAL STANDARDS

International legal standards have evolved in respect to their stance on marital rape, valid consent,
human rights, and related legislatures. There is a growing consensus around the world that the
phenomenon of being married should not be used as a shield from possible prosecution for rape.
They have prioritized individual human rights before the institution of marriage. According to
Amnesty International, 42% of countries (77 out of 185) have already taken appropriate steps to
criminalize marital rape. An additional 8.3% (9 out of 185) countries are in the process of
criminalizing it. Various human rights instruments, conventions, and treaties also recognize marital
rape as a crime.

32
Surah al-Baqarah (2:223): "Your wives are a place of sowing of seed for you, so come to your place of cultivation
however you wish."
Sahih Bukhari, Hadith 3237: "If a man calls his wife to bed and she refuses, and he spends the night angry with her, the
angels curse her until morning."
33
1 Corinthians 7:3–4: "The husband should fulfill his marital duty to his wife, and likewise the wife to her husband. The
wife does not have authority over her own body but yields it to her husband. In the same way, the husband does not
have authority over his own body but yields it to his wife."
Ephesians 5:22–25: "Wives, submit yourselves to your own husbands as you do to the Lord... Husbands, love your wives,
just as Christ loved the church and gave himself up for her."
The Code of Canon Law, Canon 1151: "Spouses have the duty and right to preserve conjugal living unless a legitimate
cause excuses them."
34
Yasna 53.5: "May the man and wife united in righteousness grow old in the joy of children, with hearts united in love
and mutual respect."
UN on Marital Rape- The United Nations has led in the recognition of marital rape as a serious
breach of human rights and gender-based violence. The UN has pushed member states over the years
to criminalize marital rape and address cultural, traditional, or religious excuses for allowing such
practises. A number of major UN instruments demonstrate this focus. The Universal Declaration of
Human Rights (UDHR), 1948 provides a guarantee for the right to life, liberty, and security of
person under Article 3, which marital rape negates directly by undermining autonomy over the body.
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979
is instrumental, though not explicitly states as addressing marital rape. Its General Recommendation
No. 19 (1992)35 recognizes gender-based violence, including marital rape, as discrimination and
infringement of women’s rights. This position was again reaffirmed by General Recommendation
No. 35 (2017)36, which calls on member states to criminalize marital rape and provide effective
legal recourse and support to victims. In the same vein, the Declaration on the Elimination of
Violence Against Women (DEVAW), 1993 defines violence against women to encompass physical,
sexual, and psychological violence within the family, including marital rape. DEVAW stresses
legislative, preventive, and punitive action to counter violence in all its manifestations, including
marriage. The Beijing Declaration and Platform for Action, 1995 further recognizes marital rape as a
significant issue, which demands wide-ranging laws to shield women against every type of sexual
violence.

International Criminal Law- International criminal law has increasingly acknowledged marital rape
as a serious human rights violation. Traditionally, it was neglected because of the belief of implied
irrevocable consent in marriage, but contemporary legal systems now confirm that explicit consent is
necessary even in the context of marriage. The Rome Statute of the International Criminal Court
(ICC), 1998, criminalizes rape, including marital rape, as a crime against humanity 37, and as a war
crime38 when committed in a systematic way or in a situation of an armed conflict, without exception
to marital relations Treaties such as the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) and the Istanbul Convention (2011) also oblige states to
criminalize marital rape. International criminal law, thus, maintains that marriage does
not exclude the right to consent, reaffirming global accountability.

35
CEDAW General Recommendation 19 addresses violence against women, emphasizing prevention, protection, and
legal accountability.
36
CEDAW General Recommendation 35 focuses on eliminating gender-based violence, including harmful practices and
discrimination.
37
Article 7(1)(g) of the Rome Statute of the International Criminal Court
38
Article 8(2)(b)(xxii) of the Rome Statute of the International Criminal Court
International Judicial Precedents- International court precedents have been instrumental in
establishing marital rape as a human rights and criminal law violation. Traditionally disregarded on
the basis of implied consent for the duration of the marriage, courts globally have come out to reject
this premise, affirming the priority of explicit consent in all activities of a sexual nature. For
example, The European Court of Human Rights (ECHR) established a landmark precedent in CR v
United Kingdom (1995), in which it was held that the exemption for marital rape contravened the
right to privacy and personal integrity under Article 8 of the European Convention of Human Rights.
Likewise, in MC v Bulgaria (2003), the ECHR reaffirmed the principle of consent, holding that
states have the obligation to guarantee sufficient legal protection against all unwanted sexual
intercourse (or any other sexual activity), irrespective of the relationship between the individuals
involved. These precedents indicate an international consensus-marital status cannot negate the
necessity of explicit consent, upholding worldwide legal standards against marital rape.

COMPARATIVE ANALYSIS OF COUNTRIES IN THE REGARD OF LEGAL

STATUS OF MARITAL RAPE-

While many countries have recognized and criminalized marital rape, others continue to exempt it
from legal scrutiny based on cultural, religious, or traditional justifications. This paper provides a
comparative analysis of the legal status of marital rape in four distinct legal and socio-cultural
contexts: the United Kingdom, Egypt, Afghanistan, and France.

By examining these jurisdictions, this analysis aims to highlight the disparities in legal recognition
and enforcement, discuss the impact of legal frameworks on victims' access to justice, and
underscore the necessity of criminalizing marital rape as a fundamental step toward gender equality
and human rights protection.

Comparison between the United Kingdom, Egypt, Afghanistan, and France-

United Kingdom- The United Kingdom declared marital rape illegal in 1991 with the significant case
R v R, which eliminated the longstanding marital exemption. It was criminalized through the Sexual
Offences Act 200339. This decision affirmed that being married does not automatically mean consent
to sexual activity, thus providing spouses with equal legal protection. Since that time, marital rape
has been prosecuted under general sexual offense legislation, with courts addressing it with the same
seriousness as non-marital rape. The UK’s strategy demonstrates a strong dedication to gender
equality and victim safeguarding, although issues like underreporting and challenges in prosecution
continue to exist.

Egypt- In Egypt, marital rape is not explicitly criminalized, as personal status laws based on Sharia 40
principles emphasize a wife's obligation to obey her husband. Generally, Egyptian courts do not
consider non-consensual sexual relations within marriage a criminal act 41. The legal rationale
supporting the exemption of marital rape is grounded in cultural and religious views that prioritize
marital harmony over the autonomy of individuals. Despite international calls for reform, progress in
legal changes in Egypt is slow, as societal attitudes and religious conservatism pose significant
barriers.

Afghanistan- The legal framework in Afghanistan, shaped by Sharia law and tribal customs, does not
recognize marital rape as a criminal offense. Prior to the Taliban's resurgence, Article 132 of the
Afghan Penal Code required wives to submit to their husbands unless they had a religious
justification. Under the Taliban regime, women’s rights have further declined, making it nearly
impossible to seek legal remedies for marital rape. Reports suggest that Afghan women encounter
severe challenges in obtaining justice, as both societal norms and legal structures maintain male
dominance over their spouses.

France- France officially made marital rape a crime in 1990, following a decision by the French
Supreme Court. This legislation was further reinforced by rulings from the Cour de Cassation in

39
Section 1 (Rape): (1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina, anus, or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has
taken to ascertain whether B consents.
(3) A person guilty of an offence under this section is liable—
(a) on conviction on indictment, to imprisonment for life.
40
Musnad Ahmad 12614: "If I were to command anyone to prostrate to another, I would have commanded a wife to
prostrate to her husband, due to the greatness of his rights over her."
Sunan Ibn Majah 1854: “When a man calls his wife to fulfill his need, then let her come, even if she is at the oven
(cooking).”
41
Article 267 of the Egyptian Penal Code define rape as forced sexual intercourse with a woman other than the wife
1992, which affirmed that non-consensual sexual acts within marriage constitute rape. The legal
provisions, detailed in Article 222-23 of the French Penal Code 42, guarantee that marital status does
not shield offenders from legal action. France’s stance underscores a broader dedication to gender
equality and aligns with European human rights principles. Nevertheless, obstacles persist in
guaranteeing that all victims can access justice, hindered by societal stigmas and procedural
challenges.

Some other factors have also been used to compare these countries-

Economy HDI43 GII44 WPS Index45 GGG Index46

United Kingdom 06 0.929 0.098 0.860 0.792
Egypt 39 0.731 0.64 0.605 0.626
Afghanistan 129 0.394 0.69 0.286 0.405
France 07 0.927 0.08 0.864 0.781

The sources for the above data are-

Human Development Index (HDI) & Gender Inequality Index (GII)
United Nations Development Programme. (2024). Human Development Report 2024: Data center. UNDP.
United Nations Development Programme. (2024). Gender Inequality Index 2024. UNDP.
Global Gender Gap Index (GGG Index)
World Economic Forum. (2024). Global gender gap report 2024. WEF.
Georgetown Institute for Women, Peace and Security, & Peace Research Institute Oslo. (2023). Women, Peace, and
Security Index 2023/24: Tracking sustainable peace through inclusion, justice, and security for women.

Gender equality plays a crucial role in influencing levels of discrimination and various global
metrics, such as the Women, Peace, and Security (WPS) Index, the Global Gender Gap Index
(GGGI), and the Gender Inequality Index (GII). Elevated levels of gender inequality led to systemic
discrimination, which restricts women's access to education, employment, and political engagement.
These disparities have a direct effect on the Human Development Index (HDI), as limited
opportunities diminish overall human capital. From an economic perspective, gender imbalances can
42
Article 222-23 of the French Penal Code: Any act of sexual penetration, whatever its nature, committed on another
person by violence, coercion, threat, or surprise is rape.
43
The Human Development Index assigns a value between 0 and 1 to each country, with higher values indicating higher
levels of human development.
44
The Gender Inequality Index measures gender-based disparities in reproductive health, empowerment, and labour
market participation, with values ranging from 0 (indicating no inequality) to 1 (indicating maximum inequality).
45
The Women, Peace, and Security Index scores reflect the status of women's inclusion, justice, and security in each
country, with higher scores indicating better performance.
46
The Global Gender Gap Index assigns a score between 0 and 1, where 1 signifies full gender parity.
decrease productivity and obstruct growth. Nations that promote gender equality tend to enjoy
greater economic stability and development. Implementing legal and policy reforms to combat
discrimination can enhance these indices, thereby promoting inclusive growth, fostering innovation,
and strengthening national economies

SUGGESTIVE MEASURES

India must address legal, social, and institutional barriers to criminalize marital rape through a
multifaceted process. The lack of specific legal recognition of marital rape, despite increasing
awareness, still prevents survivors from receiving justice. To ensure that victims are adequately
supported, several key actions can be taken to criminalize marital rape effectively. It is imperative to
implement a clear legal reform to Section 375 of the Indian Penal Code (IPC) to explicitly
criminalize marital rape. The Protection of Women from Domestic Violence Act (PWDVA), 2005,
should be modified to include marital rape as a form of domestic violence, guaranteeing access to
protection orders and financial support for survivors. The defining factor for rape laws should be lack
of consent, not marital status. Judicial sensitization is also important. Martial rape is frequently
justified in Indian courts due to patriarchal beliefs, which claim for conjugality rights. Judges and
police officers are required to receive specialized training to handle marital rape cases with care. It is
imperative that the Supreme Court and High Courts establish guidelines to ensure that cases of
marital rape are treated with respect, character assassination is avoided, and justice is served in a
manner that honours the dignity of the victim. Furthermore, there needs to be enhanced enforcement
mechanisms for survivors. A lot of women refrain from reporting marital rape because of concerns
about social stigma, financial incapacity, or intimidation by their partners and in-laws. To address
this, the government should establish crisis centers and specialized support services for survivors that
offer legal assistance, counseling/consulting, medical attention, and temporary shelter. The presence
of specialized women's help desks in police stations should provide survivors with a secure and
confidential platform to report cases without fear of intimidation. Moreover, there must be awareness
campaigns to challenge the deeply ingrained belief that marriage is an unrestricted sexual union. The
belief that a husband has the right to his wife's physical health must be dismantled through
comprehensive public education programs. Collaborative efforts between the government, NGOs,
and media must focus on raising awareness about sexual consent within marriages and the harmful
effects of marital rape. To alter societal attitudes from an early age, educational institutions must
provide training on gender sensitivity in their curriculum. In addition, it is imperative to address
marital rape in religious and cultural discussions. Public opinion in a country like India is heavily
affected by religion and tradition. Involving religious leaders and community influencers in
discussions about marital rape can help to counteract conservative opposition and promote
progressive views on marriage. Economic empowerment of women is an essential component in
addressing the issue of marital rape. Many women are victims of sexual violence in marriages where
their financial resources are reliant on their husbands. Women can seek justice by improving their
access to education, employment opportunities and financial support through programs that help
them break free from abusive marriages. Marital rape survivors should receive training and
employment support, along with special measures to enhance their abilities. A comprehensive
strategy that combines legal reform, judicial and law enforcement training, public awareness, cultural
reformation, and women’s empowerment is required. Mere legislative changes will not be sufficient
unless society as a whole recognizes and condemns marital rape as a grave violation of human rights.

CONCLUSION
It is imperative to understand that marital rape is a socio-legal mishap which needs to be penalized at
any condition. Not only does this exception imply that forced conjugal relations in marriage are
socially and legally acceptable, but this exception is discriminatory and denies equal protection of
law to a certain class i.e. married women. Additionally, it is a prima facie violation of Articles 14, 15,
and 21 of the Indian Constitution. Moreover, in order to uphold international standards of justice,
India must acknowledge and criminalize marital rape since it has been one of the signatories to
several human rights treaties and conventions. Many international laws prioritize the protection of
women against all forms of violence, including sexual violence in marriage. Despite these
commitments, India has yet to fully implement them in its legal framework.

In the end, the root cause of this exception is a patriarchal mindset-one which disenfranchises men
and women alike, binding them with the shackles of preposterous, implausible, unrealistic, and
illogical ideals and principles and onerous conventionalities of their expected behaviour. It is high
time that these walls come crashing down, so that all sections of society may experience equality in
its true sense. Unless and until, we as a society recognise our missteps and set the course for damage
repair, we continue to blind ourselves to the extravagant assortment and diversities of thinking,
feeling, and most importantly being.

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