Marital Rape: Critical Analysis

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In terms of post-independence constitutional history, India has about 73 years. However, the construction of the Indian constitution began with the Regulating Act of 1773, which is one of the world’s oldest. Many provisions and principles were added as time passed and the water flowed, and the Laws were established. Rape and marital rape are two examples of such laws.


For over 200 years, the British dominated India, and thus were the only ones who enacted official laws in India. Nevertheless, when they came and began drafting laws, they had little awareness of Indian customs and practices, so many concepts had to be inserted afterwards. British laws were founded on their understanding of their own culture and nation.

Yet, it was Macaulay’s idea that elements such as kidnapping, and rape were integrated in the Indian Penal Code[1] in all its origins. At the time, the nineteenth century, it was widely held that if a woman was raped or abducted, it was usually with her permission only, resulting in the shame of her family by society. However, with the addition of sections 375 and 376 to the IPC, these offenses received some recognition.

Rape is also one of the most horrific crimes that a human being can do. It is a crime against women or a female child under the age of 16 when an offender sexually harasses a lady without her free will and agreement. Under the IPC, the punishment for the aforementioned offence is “rigorous imprisonment for a term not less than 10 years and, in some circumstances, life imprisonment.”

According to a study provided by the National Crime Records Bureau[2], in the year 2020, there were 28046 cases registered for the offence of rape against women (including both slabs, i.e., below 18 years of age and above 18 years of age) across India. This is a concerning statistic, indicating that over 75 rape-related instances were recorded per day. The study also said that Rajasthan had the highest number of reported cases (5310) within the specified time period. However, these are merely the reported statistics. Consider this: if the reported statistics are this high, what about the cases that go unreported for a variety of reasons, such as family pressure to keep them from being defamed?


IPC defines rape under its section 375 as

A man is said to commit “rape” if he— (a) 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 (b) 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 (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus, or any part of body of such woman or makes her to do so with him or any other person; or (d) 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: — 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 eighteen years of age. Seventhly. —When she is unable to communicate consent. Explanation 1. —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 1. —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.”[3]

And Section 376 provides for its punishment as:

376. Punishment for rape.—(1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which 1 [shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine]. (2) Whoever,— (a) being a police officer, commits rape— (i) within the limits of the police station to which such police officer is appointed; or (ii) in the premises of any station house; or (iii) on a woman in such police officer’s custody or in the custody of a police officer subordinate to such police officer; or (b) being a public servant, commits rape on a woman in such public servant’s custody or in the custody of a public servant subordinate to such public servant; or (c) being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or (d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution, commits rape on any inmate of such jail, remand home, place or institution; or (e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or (f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or (g) commits rape during communal or sectarian violence; or (h) commits rape on a woman knowing her to be pregnant; or 2 * * * * * (j) commits rape, on a woman incapable of giving consent; or (k) being in a position of control or dominance over a woman, commits rape on such woman; or (l) commits rape on a woman suffering from mental or physical disability; or (m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or (n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine. Explanation.—For the purposes of this sub-section,— (a) “armed forces” means the naval, military and air forces and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government; (b) “hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation; (c) “police officer” shall have the same meaning as assigned to the expression “police” under the Police Act, 1861 (5 of 1861); (d) “women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or an institution called by any other name, which is established and maintained for the reception and care of women or children. 1 [(3) Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this sub-section shall be paid to the victim.][4]

Based on an examination of the relevant section, we may conclude that any sexual acts of penetration (penetration, in this case, might be by bodily parts or objects) committed by a male against a woman without her consent amount to the crime of rape. Rape is a horrific crime that no civilization should tolerate in today’s society. It impacts not only the victim and their family, but also the entire society by disrupting the peace and tranquillity.

This provision allows for two exceptions: activities by a medical practitioner in order to operate and treatment that are justified, but the second exemption does not appear to be very justified: sexual acts conducted by a husband against his wife even without permission


Explanation 2 of section 375 of the IPC states that sexual actions conducted by a husband against his wife do not rape even if they are committed without her permission. This appears to be unreasonable, however it is supported by some fundamental concepts. One of them is the Indian society’s notion that by marrying, both husband and wife enter into a relationship in which agreement for each other’s activities is impliedly provided at the wedding. As per this concept, anytime a husband conducts any act, his wife’s implicit permission is there, regardless of whether the act is a daily routine or a sexual intercourse. Marriage is seen as a holy institution in many communities across the world, and permission in this circumstance is implicit rather than explicit.

Another reason for the exception that might be made is to prove consent. It is frequently noticed that the most difficult thing to demonstrate in a court of law is the mental element, such as consent and purpose. In the instance of a husband-and-wife relationship, it is extremely difficult to demonstrate that the permission provided was freely given. This clause also includes one exemption for females under the age of 18.

According to the NCRB study, about 75 incidences of rape were documented per day, with 94 percent of these cases being committed by a close relative of the victim. However, the basic concern presented against criminalizing marital rape is the social destabilization that would result, because marriage is a social institution and anything like this would do damage to established family structures. Another argument is that women are often conservative in character and are neither motivated nor financially independent to stand out and report anything like this, causing a stumbling block in the system.

Nonetheless, there are also sections of the IPC that safeguard a wife’s rights, such as domestic abuse, and the Protection of Women from Domestic Violence Act[5], which protects women from various types of domestic violence.

Nonetheless, prior to the Supreme Court’s 2017 decision in the case of Independent Thought versus Union of India[6], the Supreme Court declared that rape of a female shall be constituted rape, given that the affected girl was a juvenile. This decision was made in light of the Nirbhaya case[7].

It was also clarified in the case of Independent Thought v. Union of India [(2017) 10 SCC 800] that whether the convicted was charged with rape under IPC or sexual penetrative assault under POCSO[8], the end punishment remains the same in both cases, as explained by Madan B Lokur, J in his judgement in Para 92 as:

“Assuming some objective is sought to be achieved by the artificial distinction, the further question is: what is the rational nexus between decriminalizing sexual intercourse under the Indian Penal Code with a married girl child and an unclear and uncertain statutory objective? There is no intelligible answer to this question particularly since sexual intercourse with a married girl child is a criminal offence of aggravated penetrative sexual assault under the POCSO Act. Therefore, while the husband of a married girl child might not have committed rape for the purposes of the Indian Penal Code, but he would nevertheless have committed aggravated penetrative sexual assault for the purposes of the POCSO Act. The punishment for rape (assuming it is committed) and the punishment for penetrative sexual assault is the same, namely imprisonment for a minimum period of 7 years which may extend to imprisonment for life. Similarly, for an ‘aggravated’ form of rape the punishment is for a minimum period of 10 years imprisonment which may extend to imprisonment for life (under the Indian Penal Code) and the punishment for aggravated penetrative sexual assault (which is what is applicable in the case of a married girl child) is the same (under the POCSO Act). In other words, the artificial distinction merely takes the husband of the girl child out of the clutches of the Indian Penal Code while retaining him within the clutches of the POCSO Act.”[9]

The judiciary serves as a guardian of individuals’ liberties. However, given the principles of Separation of powers, there is nothing the judiciary could do in this situation; however, the legislative may. Marital rape is already illegal in 150 nations around the world (as of 2019), and India should consider it as well. There will be obstacles but conquering them is also required.


Rape is thus defined as an offense under the IPC. It makes an exemption for marital rape, in which a spouse is not held guilty in rape capacity under the IPC. He can, however, be held accountable for his actions under alternative criminal laws, such as the POCSO Act, where he would serve the same term that he would have typically served under the IPC.

[1] Indian Penal Code, 1860 (Act 45 of 1860).

[2] National Crime Records Bureau, India, available at: (last visited on February 04, 2022).

[3] Indian Penal Code, 1860 (Act 45 of 1860), s. 375.

[4] Indian Penal Code, 1860 (Act 45 of 1860), s. 376.

[5] Protection of Women from Domestic Violence Act, 2005 (Act 43 of 2005).

[6] Independent Thought v. Union of India [(2017) 10 SCC 800].

[7] Mukesh & Anr vs State for NCT Of Delhi & Ors[(2017) 6 SCC 1].

[8] The Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012).

[9] Independent Thought v. Union of India [(2017) 10 SCC 800].

Author: Aditya Sharma, Symbiosis Law School, Noida

Editor: Kanishka VaishSenior Editor, LexLife India

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