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Marital rape

  • Category
  • Published
    23rd May, 2022


  • Against legal provisions
  • Judicial interpretation
  • Stakeholders
  • Ethical dilemma
  • Prone to losses


On May 10, 2022, a two-judge bench of the Delhi High Court gave a split ruling on marital rape, thus ensuring a future hearing in the Supreme Court. The legal battles will, of course, continue but this may nevertheless be a good moment to examine the issues that lie behind it.


  • The definition of Marital Rape is provided under the Indian Penal Code (IPC), framed by the colonial rulers.
  • Section 375 of Indian Penal Code (IPC) defines the term rape as, any form of sexual assault involving non-consensual intercourse with a woman.
  • However, as per the law, a wife is presumed to deliver perpetual consent to have intercourse with her husband after entering into a marital relation.
  • Exception 2 to Section 375, provides a non-criminal status to sexual intercourse without the consent of the wife and immunizes such actions of the husband.
  • The concept of marital rape is the epitome of ‘implied consent’, marital relation between a man and a woman implies to have consented sexual intercourse from both the sides.


Marital Rape: Against legal provisions

  • Doctrine of coverture: Non-criminalising status of marital rape emanates from British rule, which was influenced by and derived from the doctrine of merging identity of women with her husband.
    • In 1860s, when IPSC was drafted by the British government, married women were not considered as independent identity.
  • Violation of Right to Equality: Article 14 of the constitution provides Right to equality, but the exception 2 to the section 375 of the IPC creates two different classes of women on the basis of marital status of the women.
    • Exemption creates the scope of victimization of married women and provides legal protection to the unmarried woman for the same act.
  • Violation of Article 21: According to judicial interpretation, Protection of life and personal liberty includes right to life with dignity, right to health, right to privacy and right to safe environment etc.

Judicial interpretation on Marital Rape:

  • State of Kerala v/s Krishnappa: Under this verdict Supreme Court held that sexual violence apart from being a dehumanizing act is a unlawful intrusion of the right to privacy and sanctity of a female.
    • Also, non-consensual intercourse amounts to physical and sexual violence.
  • Suchita Srivastava v/s Chandigarh Administration: SC under this verdict equated right to make choices related to sexual activity with the right to privacy, liberty, dignity and bodily integrity under Article 21.
  • Justice Puttuswami v/s Union of India: SC recognized right to privacy as the fundamental right to all the citizen
    • Right to Privacy includes decisional privacy of intimate relations.

      Supreme court in all these judgment recognized right to abstain from sexual relation as a fundamental right under Article 21 of the Constitution for all women irrespective of their marital status, ensuring right to equality under Article 14.

Who are the major stakeholders involved?

  • Husband
  • Wife
  • Society
  • State

‘Non-consensual Intercourse after marriage’, Is it a rape?

The ethical dilemma to consider the non-consensual intercourse after marriage arises from the roots of conflicts of values;

Right to privacy, liberty, dignity and bodily integrity of the wife v/s Family Institution and right of husband to have safe and private conjugal relation with wife.

Interest of the wife:

Article 21 of the constitution provides Right to life with dignity which includes privacy, liberty and bodily integrity. Right to life the epitome of the human existence which should be available to all the citizen irrespective of gender and marital status. Right to privacy includes decisional privacy of intimate relations. Merging the identity of married women with that of her husbands and not recognizing wife’s independent identity is a direct attempt to the liberty of the women. Any non-consensual attempt to have sexual and physical relation irrespective of marital status of the women should be considered as attempt to sexual violence and rape.

Interest of the husband:

Marital relations between two individual provides a perpetual consent to have sexual intercourse from both the sides. Right to have sexual relation with wife also becomes essential agenda to protect the family institution of the society. Apart from family institutions it is also important to protect the right of husbands to get immunity from false complaints of sexual assault.

Who are prone to major losses?

  • Wife: ‘Marital Rape’, non-consensual sexual intercourse with wife, violates the right to privacy and bodily integrity of the married woman.
  • Husband: Instances of false and fake cases of marital rape complaints violates the right of the husband to live with dignity and right to have sexual relation to protect the family institution.
  • Society: Conflict of values and ethical dilemma between of having conjugal rights negatively impact the social structure of the society and hinders the family institution


The decision in the interest of the major stakeholders should be taken by considering the above points


Q1. Debate over marital rape is rooted in 'conventional morality' and undermines the autonomy of a class of people. Critically analyse.

Q2. “The marital rape exception is the result of moral ambiguity that comes out of uneasy relationship between law and morality.” Discuss.


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