• Legis Scriptor

Marital Rape – Opportune Time to Show It the Door

Authored By: Pathoj Tripathi


The act of sexual intercourse with one's spouse without the consent of the spouse is known as marital rape. The absence of consent is the most important factor, and it does not have to be accompanied by physical assault always though it eventually becomes a part of it. Marital rape is a type of domestic violence and sexual assault that can only occur when there are two people who are married are involved.

Rape is an offense against a woman (mostly) that violates her dignity and self-respect, and when it occurs within the confines of a marriage household, it reduces the woman to the statusof a sexual object. A separate law on marital/spousal rape is urgentlyneeded in India, andit should be in line withaccepted worldwide rules on the subject.

Women, albeit not solely, are more likely to be victims of marital rape. Marital rape is a common kind of abuse against women that occurs in violent relationships. It occurs as part of a complex network of state governments, cultural practises, and societal ideas that work together to impact each unique event and scenario in different ways.

Traditional attitudes about marriage, the interpretation of religions, ideas on sexuality between men and women and the societal expectations of the subjection of a wife to her husband have attributed the reluctance to identify non-consensual sex as a crime between married couples and to prosecution.

When the offenders are external entities, the woman has the right to fight for protection, but when the culprit of her sexual autonomy is her own husband, whom she married, the legislators take away that protection.

There are different causes as to why does marital rape occurs (especially in the case of India) in the first place.

If any dispute arises between the husband and wife, the husband might want to show his dominance over his wife. He would try to do things that will degrade her and make her mentally weak. Forcing her to have sex with him even if she is not willing to be a way to prove that he is the dominant one in the relationship that they have. Whilst rape is a horrific crime in and of itself, it is frequently the intricate process of demeaning and abusing the victim that makes marital rape particularly humiliating for the victim.

In other cases, sometimes the woman does not want to be part of the sexual activity because of certain reasons which may not be very clear and may not be communicated to the male counterpart because of various reasons, one of them being most prevalent in India being lack of communication.

In this situation, it is seen that men sometimes force sex on women as they think that there is no way the woman can deny them sex after marriage and now it is their solemn right to have sex with their wife. Nobody can stop them from having sex with their wife, not even the wife herself.

In most cases it is seen that the men who are really low on their self-esteem commit this act of marital rape. A person who is self-assured will have enough dignity to not have sex with the person if she is not willing to.

Mostly, unemployed men are the culprits in these cases, because they are free and eventually not working brings them a sense of low confidence which leads to these actions. Sometimes there are different family factors that also play a major role. For instance, men who have always seen women being disrespected around them or had a violent household when they were children are also factors that may be a reason for them being violent inside the bedroom.

Now, we will focus on the different kinds and level of effect marital rape has on women focusing mainly on women of our country.

There are several physical and mental effects of marital rape on the victim.

Women have shown different mental symptoms after being subjected to the post-traumatic experiences of marital rape. They can be as light as feelings of stress and anxiety to major problems which include clinical depression. Post-traumatic stress disorder is also a problem that victims face. It includes flashbacks and nigh-mares of the horrifying experience that they had.

Women also suffer from constant fear in their mind which may not even relateto the situation they are in sometimes. For example, they may fear of something which is not related to her household. Low confidence and self-hared are also commonly found in the victims.

They might feel constantly vulnerable. They might feel a sense of helplessness. They can be in a situation of shock and numbness which can arise commonly after the experience has taken place.

If we talk about the physical effect of it on the victim, it may include several effects. Scratch and bruising which may happen due to extra force exerted on them while committing rape. Vaginal and anal bleeding is also a physical effect. Due to it, there can be difficulty in walking and soreness in the genital area.

Also, the physical effect of marital rape or rape, in general, is unwanted pregnancies. There are multiple cases of these pregnancies and it may lead to a lot of additional physical and mental problems to the mother bearing the child. She may not be ready wither ways to carry that child. And it can adversely affect her health in every way.

She won’t be capable of giving all that is needed to the child in her womb and even after the child is born, she might not be able to give all the required attention to her child if she is not both mentally and physically healthy. To cope up with all this the victims might turn to drugs and alcohol as a way to solve and lessen their pain. Drugs and alcohol have their fair share of disadvantages which may not prove to be very helpful for the victim.

There is also a possibility of sexual dysfunction which may take place. Changes may take place in different eating and sleeping cycles of the female which may disturb her routine and health both. After being raped, the victim may face additional challenges. A survivor may adopt a pessimistic attitude and believe that he or she is totally damaged. Women's menstrual cycles and fertility may also be affected.

Now, we will further proceed to different kinds of marital rape. There are various different kinds of marital rapes. But we can majorly classify them into three parts:

1) Threatened or forced sex: In this the husband tries to intimidate the wife using blackmailing as a technique or sometimes even using physical force to show dominance over his counterpart.

2) Battering rape: According to research, it is the most popular form of marital rape. This category accounts for 48 percent of all marital rapes. According to a study, such rapes were carried out in the name of antagonism, retribution, and degradation of women. Many women who are subjected to verbal and physical abuse in their marriages are also subjected to marital rape.

3) Force only rape: In this type of rape, the man uses the minimal amount of force that is needed to penetrate. There is no extra physical hurt in it except for the amount of force required to keep the women in position.

Now, we will move to the most controversial part, which is the legal status of Marital Rapes in India.

So, India is one of the 36 countries which have not criminalized marital rape which is not a thing to be happy about. We have changed many laws in the past, some of them relating to the status of women in our country as well but marital rape laws in India have not seen much of a change and it is still not considered an offence in our country.

Though it can be classified under the most heinous of crimes still the situation is not in favour of criminalising it. Therefore, it would not be wrong to say that married women in India are not in a safe place.

Section 375 of the Indian penal Code after its share of amendments states that – If a man indulges in any sort of sexual activity and the act of sexual intercourse with his own wife (who is of 15 years of age or above) cannot be called rape.

Section 376 of the Indian Penal Code talks about the punishment of rape. It states that if the wife is under the age of 12, an offence of rape within marital bonds is committed and the husband is punished, if she is between the ages of 12 and 15, a less serious offence is committed and the punishment in turn is less severe. There is no legal protection given to the wife once she reaches the age of 15.

There are certain situations laid in the Indian constitution which tell when the husband can be said to commit an offence and punished for it:

• When the wife is between the ages of 12 and 15, the offence is punishable by up to two years in prison, a fine, or both.

• When the wife is under the age of 12, the offence is punishable by imprisonment of any sort for a duration of not less than 7 years but not more than life, or for a term of up to 10 years, as well as a fine.

• Rape of a judicially separated wife is a crime punishable by up to two years in prison and a fine.

• Rape of a wife over the age of 15 is not punishable.

The Protection of Women from Domestic Abuse Act was approved in 2005, which classified marital rape as a type of domestic violence but did not make it criminal. If a woman has been the victim of marital rape, she can seek judicial separation from her husband under this Act.

This is simply a patchwork of legislation, and the Parliament must do much more to address marital rape. Individual perversity is shown in marital rape. It's not just a rape of a woman's body; it's also a rape of her feelings. She is filled with insecurity and terror after being subjected to sexual violence by her own spouse.

There is a lot of doubt which arises in these laws because when the same law does not allow women below 18 yrs. of age to get married, how come they do not punish husbands who rape their wife who is18 years of age or younger.

Also, it violates the right to equality as it differentiates between women based on their marital status. Rape is a heinous act to be committed by anybody and why just because a woman is married does not get the same justice as an unmarried woman in the same situation.


It is believed that in India, marital rape should be criminalised, as this may be accomplished by taking a rights-based approach to violence against women. Indian women's organisations have succeeded in raising public awareness and in enacting legislation on domestic violence, however the abolition of the distinction between marital rape and rape by a stranger did not make marital rape completely criminal. Marital rape, on the other hand, will not be criminalised or punished until politicians and society recognise the individual rights of women within marriage.