Marriage: A License of Rape?

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Author: Rashi Chandra

Co-Author: Anshuman Agasti

KIIT School of Law 


“Husband or wife did not the right either to demand sexual intercourse from his or her spouse or to refuse it” – Alison Weir

Marriage: A License of Rape?

Changes in law and society go hand in hand. The biggest fight to fight is the system headed by males, deeply rooted way of acting of marriage and family structure of India. Greater number or part of marriages in India are ordered in which women have no say and the family members give agreement to marriage on her in the name.

Historically, a man could not and to this day cannot be criminally arraigned for raping his wife under the Indian Legislation. This inability to prosecute a husband, criminally is based on the common law definition of rape itself. The foundation of this exemption can be traced back to the statement made by Sir Mattew Hale, CJ in 17th century England

Hale wrote “The husband cannot be guilty of a rape committing by himself upon his lawful wife, for, by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, which she cannot retract.

This established the notion that once married, a woman does not have the right to refuse sex with her husband. This allows husband right of sexual access over their wives in direct contravention of the principles of human rights and provides husband with a ‘license of Rape’ their wives.

While marital rape gets documented in hospitals case are rarely registered since it is excluded from the Indian Penal Code (IPC) defamation of rape, say an analysis by Dilaasa, counselling Centre based out of K.B. Bhabha Hospital in Bandra.

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In exclusion from the legal spectrum has also ensured that no cases ever make it to the police. Earlier when Union Minister Maneka Gandhi said that even make it to the police. Earlier when Union Minister Maneka Gandhi said that even if there was a law against marital rape, women won’t report it, doctors and counsellors point out that Ms. Gandhi may not be off the mark, but that she missed the complete picture.

In India marital rape is not an offense, Section 375 of IPC defines the offence of rape with the help of six description. One of the exceptions to this offence was “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15yrs of age is not rape. However, this was read down in the case of Independent Thought vs Union of India as “Sexual intercourse or sexual acts by a man with his own wife, the wife out being 18yrs, is not rape. Well this very recent change is just half a battle won. It is discriminatory and violates the fundamental right of Constitution of India.

The arguments upholding the legality of marital rape dated and violently oppressive especially when contrasted with some of the more forward-thinking statements made by the judiciary, independently.

The fact, logic and precedents are all the to compel the state to do good by half the population of India.

Hence marital rape is viewed as a rape just if the seriousness of punishment is milder. There is no lawful security agreed to the spouse after the age of 15, which is against human right directions. A similar law that accommodate the lawful period of agree for a marriage to be 18, shields from sexual mishandled just those up to the age 15.

In 2005, the Protection of Women from Domestic Violence 2005 was passed which consider marital rape as a type of local violence. Under this Act, a lady can go the court and get legal partition from  her husband for marital rape.

Marital rape isn’t at all like different types of assault, the casualty here must choose the option to continue living with their better half as getting divorce is exceptionally troublesome and is profoundly defamed. There exists physical and mental need to condemn the marital rape as one can’t indeed, even comprehend what a lady is experiencing from the start. Likewise, marital rape is violative of article 14 and Article 21 of our Indian Constitution. Article 14 guarantees fairness under the watchful eye of law also, equivalent insurance of law which implies no separation of any sort is permitted. But our criminal law itself oppresses the female casualties who face sexual maltreatment by their own spouses. Article 21 is disregarded by our Indian Penal Code, Section 375 special case 2 which disavows the privilege of individual to live with respect. It additionally incorporates the rights to security, poise, wellbeing, safe day to day environments, and safe condition, and so forth. With the rising need to condemn the marital rape in India there exists many plunging suppositions with respect to the equivalent in such a case that it is condemned it tends to be abused by the furious and lost ladies against her blameless spouse with the offense of marital rape, or condemning marital rape will be in opposition to our Indian traditions as marriage here is considered as holy observance, and furthermore it is viewed as that when a lady gets hitched there exist an inferred agree to have sex among a couple, however the agree to sex among a couple signifies the declaration of affection through sexual closeness and not to have constrained sex.

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Marital rape is very basic in our general public however is an exceptionally under-revealed wrongdoing. Ladies regularly doesn’t report such occasions in light of the fact that the law itself doesn’t bolster them. Assault ought to be treated as assault just independent of the way that the guilty party is spouse of the casualty. The admired society is viewed as where people have equivalent significance and have equivalent option to communicate their sentiments and feelings. No men or ladies ought to feel abused. Laws ought to be sexually unbiased with the goal that equity could be served. Conjugal Rape ought to be perceived as an offense in India and furthermore the special case of Marital Assault provision (Section 375 Exception 2) ought to be revoked from Indian Penal Code. The guilty party of the marital rape ought to be rebuffed as a similar discipline that is given to the guilty party of assault which is given under Section 376 of Indian Penal Code, 1860. Safeguard ought not be taken by the guilty party that the spouse didn’t yell or shout or oppose strongly. There’s likewise a need to give mindfulness with respect to the Marital Rape in our general public.


Author: Rashi Chandra

Co-Author: Anshuman Agasti

KIIT School of Law 


Disclaimer: These guides/articles are not legal advice, nor a substitute for a lawyer.
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