Marital Rape: A Social and Legal Perspective

admin November 4, 2021
Updated 2021/11/05 at 6:06 AM

A trial court filed accusations against husband based on the wife’s claims. The Indian Penal Code has sections 376 (rape), 377 (carnal intercourse against the order of nature), and 498A (cruelty against a wife by a husband or his family) (IPC). The Chhattisgarh High Court maintained the allegations against the spouse under Sections 498A and 377, but released him under Section 376. Sexual intercourse between a man and his own wife (if she is over the age of 18) would not be considered rape under Exception 2 to Section 375 (the definition of rape).

Arguments in favour of a marital rape exemption

Recognizing it jeopardises the marriage institution. In the case of Independent Thought v. Union of India, this was the government’s defence (2017) It would be difficult to determine the authenticity of marital rape accusations because marriage is a sexual connection.

Traditional patriarchal beliefs

¬†The exemption for marital rape is an affront to the constitutional values of human autonomy, dignity, and gender equality entrenched in basic rights such as Article 21 (right to life) and Article 14 (right to equality of opportunity) (the right to equality). Because marital rape is not recognised, a woman’s husband is her sexual master, and he has the legal right to rape her. Currently, marriage denotes women’s permanent sexual permission. This perpetuates patriarchal beliefs and infringes on women’s individual liberty. The Supreme Court of India decided in Joseph Shine v. Union of India (2018) that the crime of adultery was unconstitutional since it was based on the concept that after marriage, a woman is her husband’s property. When it comes to recognising marital rape, the same concept does not apply.

Provisions that are inconsistent

Marriage is not immune from other sexual offences. As a result, a spouse can face the same charges as any other male for sexual harassment, molestation, voyeurism, and forceful disrobing. Section 377 allows a husband to be prosecuted and tried for non-consensual penetrative sexual relations with his wife other than penile-vaginal penetration (before Navtej Singh Johar v. Union of India, 2018, consent was not relevant to Section 377, but it is now).


In the case of Independent Thought, the Supreme Court ruled that men who raped their underage wives could no longer shelter behind Section 375 of the IPC’s exclusions. It’s past time for adult women to be treated with the same respect and dignity as men in marriage.

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