Marital Rape: An Unrevised Concept


Author – Anant Maheshwari

Co-Author –Surbhi Mathur

Manipal University Jaipur

Marital Rape: An Unrevised Concept

The current paper represents a comprehensive review on an unrevised concept on Marital Rape. This concept is not very known in society therefore our main aim behind writing this is to familiarize them from this concept. We mainly focus on constitution of India and Indian Penal Code. From this paper reader will acknowledge himself from various loopholes in statutory laws and have better understanding with this concept. Our mainly motive is to alter this concept.

Before talking on the issue of Marital Rape, the question arises that what are the implications associated it. The offence of Rape is defined under Sec. 375 of Indian Penal Code (I.P.C), 1860 which states the definition of rape and contains two Exceptions. In which Exception 2 states that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape”

There is no legal definition of sexual intercourse, Oxford Dictionary define it as “Sexual contact between individuals involving penetration, especially the insertion of a man’s erect penis into a woman’s vagina, typically culminating in orgasm and the ejaculation of semen”. There are many arguments which states that marital rape is violation of various fundamental right. It has been argued by various social activists to criminalize exception 2 to section 375 of I.P.C. as it violates Article 14, 21 and various other rights of women. It has been noticed that there are various section in IPC to protect the rights of a woman. Even I.P.C has a separate part which covers the offences against woman. Decriminalizing Exception 2 to section 375 will give rise to various substantial questions, whether it will be violative of rights of man as it will become an easy tool for woman to harass man and file false cases against him. It will also raise question to make more laws to protect the rights of a man as most of the laws in I.P.C are in favor of women. me to submit an article

Article 14: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.

The impugned provisions i.e. Exception 2 to section 375 of IPC classify rape victims into two categories based on their marital status i.e. married and unmarried. In order to pass the test of permissible classification under Article 14 two conditions must be fulfilled filled namely;


  1. That the classification is founded on intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and,
  2. That differentia must have a rational relation to the object sought to be achieved by the statute in question.

Article 14 prohibits discrimination not only by a substantive provision of law but also by procedural law.

Article 14 forbids class legislation; it does not forbid classification or differentiation which rests upon reasonable grounds of distinction. The principle of equality does not mean that every law must have universal application to all the persons who are not by nature, attainment or circumstances in the same position.

What is however necessary is that there must be a substantial basis for making the classification and the there should be a nexus between the basis of classification and the object of the statute under consideration. In other words, there must be some rational nexus between the basis of classification and the object intended to achieve.

The expression “intelligible differentia” means difference capable of being understood. A factor that distinguishes or in different state or class from another which is capable of being understood. The impugned act deals with users of social networking websites Test laid down in State of West Bengal v. Anwar Ali Sarkar[1] i.e. the differentia or classification must have a rational nexus with the object sought to be achieved by the statute in question Supreme Court in many of its judgment has clearly indicated about such kinds of classifications as vague and inoperative. The Supreme Court in landmark judgment of Maneka Gandhi v. Union of India[2] clearly ruled out the room for arbitrariness. ‘Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which logically as well as philosophically, is an essential element of equality or non-arbitrariness, pervades Article 14 like


Brooding omnipresence.’ Rule of law which permeates the entire fabric of the Indian Constitution excludes arbitrariness. Wherever we find arbitrariness or unreasonableness there is denial of rule of law.

In the present case, the impugned provisions create two classes of rape victims. The two classes of rape victims are:

First: A woman who is married to a man who rapes her,

Second: A woman who is unmarried to a man who rapes her.

The above two classifications of women who are victims of rape would be constitutional if and only if the classification is based upon sound intelligible differentia which has a rational relation to the object sought to be achieved by the impugned provisions. In the present case the classification made under Exception 2 to Section 375 of Indian Penal Code 1860 i.e. between married and unmarried women as there has a substantial basis for making the classification and also a nexus between the basis of classification and the object of the statute under consideration. In other words, there is rational nexus between the basis of classification and the object intended to achieve.

The idea of privacy–specifically marital and family privacy–has been used by the Government to defend the marital rape exception which states that nonconsensual sexual intercourse between a man and his wife is not rape. This conception of privacy functions on the understanding that the mandate of the State stops at the threshold of the home and family and that the constitutionally guaranteed rights of equality and personal liberty to individuals do not apply within the space of home and the institution of marriage. This means that the basic unit of privacy is, or perhaps was, the marital union and not the individuals who are married. While the law’s protection would extend to the spouses who want to claim sacred protection behind the institution of the family, it will not concern itself with what the individuals would do to each other within it.

A crime is a moral wrong committed against the society as a whole, but the concept of marital rape is not relevant to the matter relating to society as a whole rather it is a private sphere between a spouses where the consent had been obtained during the time of marriage. me to submit an article

From Indian perspective, marriage is considered as sacred and therefore it is done with proper procedural followed as per their rituals and believes.

It is quite clear that sex is an essential part of marriage therefore it is irrelevant to state that marital rape is a crime and it must be criminalized rather we call it as a legal sex between both spouse.

The most essential part of proving rape is mens rea and actus reus which are the 2 main essential of crime because the court’s judgment is based on these 2 elements, if there is any doubt in the mind of judge he cannot give the verdict against the accused. Further the burden of proof lies upon the victim and she has to prove beyond the reasonable doubt.

Most of the social activist are insisting to criminalize exception 2 to sec. 375 of I.P.C but it cannot be possible as is described above therefore we can say that all are innocent until proven guilty.

We have also seen that there has been a tremendous increase in filling of false cases by wife against her husband and other family members which leads to the harassment of husband.

If Exception 2 to Sec. 375 of IPC 1860 become unconstitutional than it would become an “easy tool for harassing the husbands”. It would give an opportunity to the women to avenge their husbands by threatening to file a complaint of marital rape against them. The law would also have to rely upon the word of the wife, which complicates matters further since the wife could misuse the laws i.e. similar to the misuse of dowry laws.

Instances where dowry laws are misused:

In the cases such a Sushil Kumar Sharma v. Union of India[3], Preeti Gupta v. State of Jharkhand[4], Ramgopal v. State of Madhya Pradesh[5] and Savitri Devi v. Ramesh Chand[6].


Misuse of section 498A of IPC has been seen in this the Supreme Court observes all the amendments needed and alternative ways which could be taken to check the alleged misuses and disruption of family.

The violence that affects a person’s life in every way – physically, mentally, emotionally and psychologically is known as Domestic Violence. It is a violation of a basic human right. Various countries of the world have identified it as a serious threat to a person’s overall development and hence, has provided relief from domestic violence in various forms. India has also identified domestic violence as a crime and provides relief and protection from it – unfortunately to only Women!

Domestic violence against men is almost nil as there is no provision in any law to protect a man. As a result of which we have many cases where women use their rights in making false complaint against their husbands with the motive of harassing them. As in the case Bibi Parwana Khatoon v. State of Bihar[7] it has been seen that the appellants in the case did not even reside at the place of mishap. There was no evidence to prove their charge beyond reasonable doubt. Therefore, the Court acquitted them and held that the Court must guard against false implication of the relatives.

Moreover, everyone including our government has failed to take any stand on addressing the violence faced by men.

Women use the weapons called Section 498A and Dowry Act to file a false complaint so as to attack their husband. Section 498A of Indian Penal Code is a provision under which a husband, his parents, and relatives can be booked for subjecting a woman to cruelty to meet their unlawful demands (dowry). Generally, the husband, his parents, and relatives are immediately arrested without sufficient investigation and put behind bars on non-bailable terms. In Arnesh Kumar v. State of Bihar[8] states the fact that Section 498A, IPC is a cognizable and non-bailable offence, it is more often than not is used as a weapon rather than shield by disgruntled wives. It results in harassing the husband and his relatives by getting them arrested under this Section and it is more disturbing to see bedridden grandfathers and grandmothers being arrested without a prima facie

case. Even if the complaint is false, the accused is presumed to be guilty until he or she proves innocence in the court.

More crucially, the government said deleting exception 2 of Section 375 of the Indian Penal Code would not serve any purpose since there would be no way to verify allegations of rape made by a wife against her own husband.

“If all sexual acts by a man with his own wife qualify to be marital rape, then the judgment as to whether it is a marital rape or not will singularly rest with the wife,” The question is what evidence the courts will rely upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man and his own wife.


Article 21 of Indian Constitution “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Fundamental rights must be interpreted in an expansive and purposive manner so as to enhance the dignity of the individual and worth of the human person. The Constitution is a living document and it should remain flexible to meet newly emerging problems and challenges. The rights under Articles 14, 19 and 21 must be read together. The right to equality under Article 14 and the right to dignity and privacy under Article 21 are interlinked and must be fulfilled for other rights to be truly effectuated.

The state undoubtedly has a legitimate interest in regulating many aspects of marriage. That is the foundation on which the state does regulate rights, entitlements and duties, primarily bearing on its civil nature. Breach by one of the spouses of a legal norm may constitute a ground for dissolution or annulment. When the state enacts and enforces such legislation, it does so on the postulate that marriage as a social institution has a significant bearing on the social fabric. But in doing so, the state is equally governed by the norms of a liberal Constitution which emphasise dignity, equality and liberty as its cardinal values. Section 375 exception 2 is in accordance to the substantive due process under Article 21.[9]


The principle has been incorporated into Indian jurisprudence in the last few years after the Maneka Gandhi v. Union of India[10]. The test of whether a law is just fair and reasonable has been applied in examining the validity of state action.[11]The guarantee of human dignity forms a part of Article 21 and our constitutional culture. In Common Cause A Registered Society v. Union of India[12] (“Common Cause”), one of us has observed that human dignity is beyond definition and it may, at times, defy description. To some, it may seem to be in the world of abstraction and some may even perversely treat it as an attribute of egotism or accentuated eccentricity. This feeling may come from the roots of absolute cynicism, but what really matters is that life without dignity is like a sound that is not heard. Dignity speaks, it has its sound, it is natural and human. It is a combination of thought and feeling.

  • Right to live with dignity includes right to intimacy

Right to live with dignity ensure full development and evolution of persons. It includes right to carry on functions and activities which constitute the bare minimum of expression of the human self. This Court has recognised sexual privacy as a natural right, protected under the Constitution. The right is intimately related to the right to privacy. Dignity is linked to personal self-realisation and autonomy. Personal intimacies and sexual relations are an important part of the expression of oneself. Sexual expression forms an essential experience of a human being. The right to intimacy emanates from an individual’s prerogative to engage in sexual relations on their own terms. It is an exercise of the individual’s sexual agency, and includes the individual’s right to the choice of partner as well as the freedom to decide on the nature of the relationship that the individual wishes to pursue.

In Shakti Vahini v. Union of India,[13] a three judge Bench of this Court issued directives to prevent honour killings at the behest of Khap Panchayats and protect persons who enter into marriages that do not have the approval of the Panchayats. The Court recognised the right to

Choose a life partner as a fundamental right Under Articles 19 and 21 of the Constitution. The learned Chief Justice held:

when two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognized Under Articles 19 and 21 of the Constitution. Such a right has the sanction of the constitutional law and once that is recognized, the said right needs to be protected and it cannot succumb to the conception of class honour or group thinking which is conceived of on some notion that remotely does not have any legitimacy.

In furtherance of the Rawlsian notion of self-respect as a primary good, individuals must not be denied the freedom to form relationships based on sexual intimacy. Sexual relationships between adults, based on the human propensity to experience desire must be treated with respect. In addition to respect for relationships based on institution of marriage, it is important to foster a society where individuals find the ability for unhindered expression of the love that they experience towards their partner. This “institutionalized expression to love” must be considered an important element in the full actualisation of the ideal of self-respect.

In Navtej Singh Johar v. Union of India[14], one of us (Chandrachud J) held that the right to sexual privacy is a natural right, fundamental to liberty and a soul mate of dignity. In protecting intimacies, the Constitution adopts a simple principle: the state has no business to intrude into these personal matters.

This judgment has dwelt on the importance of sexual autonomy as a value which is integral to life and personal liberty Under Article 21. Individuals in a relationship, whether within or outside marriage, have a legitimate expectation that each will provide to the other the same element of companionship. me to submit an article


Marriage implies that each spouse has the right to consortium. Right to consortium implies the corresponding duty of each spouse to cohabit with each other. In the early law, wife was required to cohabit with her husband in the matrimonial home provided by him. In the modern law concepts of consortium, cohabitation and matrimonial home have undergone a change.

In Indian law we have borrowed these concepts from English law and in the Indian Courts. English precedents are used to expound their meeting. The English law would be reviewed including its modern statutory modification for the simple reason that Indian law can be understood only on the basis of English law. There is another reason too, we have not yet modified our law, and whenever we would do so, we would certainly derive our inspiration from English law.

The right of consortium implies the corresponding duty to cohabit that each spouse owes to the other. Consortium means living together as husband and wife with all the incidents that flow from marital status and spousal relationship.[15] In other words, husband is entitled to consort with his wife and wife with her husband. These spousal rights and obligations are reciprocal.[16]

In the words of Lord Reid, jurisprudentially, consortium resembles ownership for husband and wife who enjoy, a bundle of rights, some hardly capable of precise definition.[17]

Marital togetherness implies that the husband and wife will live together. In most Indian cases, a rigid view of togetherness has been taken.

Thus, in Ram Parkash v. Savitri Devi[18],” the court observed According to Hindu law, marriage is a holy union for the performance of religious duties. The relationship between husband and wife

Imposes upon each of them certain marital duties and gives each of them certain legal marital rights. The marital rights and duties are absolutely fixed by law.

The Court further observed, “It is the duty of the wife to live with her husband wherever he may choose to reside and to fulfill her duties in her husband’s home[19].


[1] State of West Bengal v. Anwar Ali Sarkar 1952 AIR 75.

[2] Maneka Gandhi v. Union of India 1978 AIR 597.

[3] Sushil Kumar Sharma v. Union of India (2005) 6 SCC 281.

[4] Preeti Gupta v. State of Jharkhand (2010) 7 SCC 667.

[5] Ramgopal v. State of Madhya Pradesh (2010) 13 SCC 540.

[6] Savitri Devi v. Ramesh Chand ILR (2003) I Delhi 484.

[7] Bibi Parwana Khatoon v. State of Bihar (2017) 6 SCC 792.

[8] Arnesh Kumar v. State of Bihar (2014) 8 SCC 273.

[9]Article 21: No person shall be deprived of his life or personal liberty except according to procedure established by law.

[10] Maneka Gandhi v. Union of India (1978) 2 S.C.R. 621, (‘78) A.S.C. 597.

[11] Rajesh Kumar v. State through Govt. of NCT of Delhi (2011) 11 SCALE 182).

[12] A Registered Society v. Union of India (2018) 5 SCC 1.

[13] Shakti Vahini v. Union of India MANU/SC/0291/2018.

[14] Navtej Singh Johar v. Union of India WRIT PETITION (CRIMINAL) NO. 76 OF 2016.

[15] At common law and Hindu law the position was that the husband has the right of consortium and the wife the corresponding duty of cohabitation.

[16] Place v. place 1972 2 KB 497 at 512.

[17] Best v. Sammuel 1952 2 ALL ER 394.

[18] Ram Parkash v. Savitri Devi AIR 1958 Punj 87.

[19] Ibid at 666.


Author – Anant Maheshwari

Co-Author –Surbhi Mathur

Manipal University Jaipur

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