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Marital Rape

Marital Rape:

The Marital Rape means any unwanted sexual acts by a spouse or ex-spouse that is committed without the other person's consent . such illegal sexual activity are done using force, threat of force, intimidation or when a person is unable to consent.

Marriage Institution:

Arranged marriages are believed to rose to prominence in India from the times of historical Vedic religion gradually gave way to classical Hinduism. In India, it is very common that the arranged marriages take effect after a wide search by both the girls family and the boys family is done for the suitable partner for their child. In Arranged marriage various things are taken into consideration such as Religion, caste and culture, profession and status, and physical appearances of both the parties who are willing to get married. After taking all this in consideration the match is finalized and marriage is entered into starting into a new phase of life.


With the continuous social reforms, literacy growth and women empowerment people are getting more independent due to which people are going for Love marriages. Nowadays, people are looking out for one more option before entering into the sacred institution of marriage most commonly known as Live-in-relationship. 

Concept of Marital Rape: 

To understand the concept of Marital rape, we should first understand the term 'Rape":

Rape is a type of sexual assault carried out by one person in the form of sexual intercourse or other forms of sexual penetration without the other persons consent. This assault can be carried out in one of the many modes like by using physical force, coercion, abuse of authority, or against a person who is incapable of giving valid consent, such as one who is unconscious, has an intellectual disability or is below the legal age of consent. 

There are different forms of rape like: 

1. Date rape:  Date rape refers to a rape in which there has been some sort of romantic or potentially sexual relationship between the two parties.

2. Acquaintance rape: Acquaintance rape is a rape that is perpetrated by a person who knows the victim. it means the victim knew the person by way of dating or employment, friendship, Medical Doctor, Legal Professional or Counsel or any other known sources. 

3.Gang Rape: Gang rape also called as serial gang rape or multiple perpetrator rape in scholarly literature. It is the rape of a single victim by two or more violators. There are multiple motives for the serial gang rapes.

4. Incestuous rape: Incest is human sexual activity between family members or close relatives. This typically includes sexual activity between people in consanguinity and sometimes those related by affinity, adoption, clan or lineage. the incestuous taboo is one of the most widespread of all cultural taboos both in present and in past societies.

5. Child sexual abuse: It is also called as child molestation in which an adult or older adolescent uses a child for sexual stimulation. there are various forms of child sexual abuse include engaging in sexual activities with a child or using a child to produce child pornography.

6. Prison rape: It is a form of rape which occurs in prison where one inmate is sexually assaulted by other inmates and less commonly to the rape of inmates by staff and even less commonly rape of staff by inmates.


7. War rape: it is a form of rape where sexual violance is committed by combatants during armed conflict, war or military occupation often as spoils of war; but sometimes, particularly in ethnic conflict, the phenomenon has broader sociological motives.

8.Statutory rape: statutory rape is non forcible sexual activity in which one of the individuals is below the age of consent. although it refers to adults engaging in sexual contact with minors under the age of consent , it is a generic term and very few jurisdictions use the actual term statutory rape in the language of statutes.

Marital rape:

Above all the forms of rape as shortly discussed above, Marital rape is a form of rape in where at the first place it is not considered as a rape in society. It is the act of sexual intercourse with one's spouse without the spouse's consent. The lack of consent is the essential element and need not involve physical violence. Sexual intercourse within marriage was regarded as a right of spouses engaging in the act without the spouse's consent. Throughout the history of most of the societies and it has been acceptable for men to force their wives to have sex against their will. Now Marital rape is considered a form of domestic violence and sexual abuse in most of the countries.

Women who are raped by their partners frequently experience a wide range of violence. Marital rape involves physical violence of severe nature and violent threats.

Researchers generally categorize Marital Rape into three types:

i.  Rape by use of force: This form of rape involves the imposition of power and control over another. 


ii.  Battering rape: This involves both physical and sexual violence; and


iii. Obsessive or Sadistic Rape: This involves both torture and perverse sexual acts.

In the following circumstances, Women are potentially are at a very higher risk to get raped by their partners: 

Women who get married to a dominating men.

  • Women who get divorced and/or separated can get raped by their spouse.

  • women who are ill or recovering from surgery.

  • women who are pregnant.

  • women who are in relationship with a person who gets physically violent very easily. 


In India, most people are of the opinion that such kind of rapes don't even exist, and even if exists then it is not a serious form of violence. 

People have become so ignorant to even understand that there are so many physical and emotional consequences faced by the victim after a marital rape:

Physical effects includes injuries to the vaginal and anal areas, lacerations, soreness, bruising, torn muscles, fatigue and vomiting.

  • women who are battered and raped frequently suffer from broken bones, black eyes, bloody noses and knife wounds.

  • Gynecological effects include vaginal stretching, pelvic inflammation, unwanted pregnancies, miscarriages, stillbirths, bladder infections, sexually transmitted diseases, HIV and infertility.

  • Short term psychological effects include PTSD, anxiety, Shock, intense fear, depression and suicidal ideation.

  • long term psychological effects include disordered sleeping, disordered eating, depression, intimacy problems, negative self images, and sexual dysfunction.


Marital rape and Indian Judiciary:

In India, Marital rape is widely debated in India. Like other many other countries India has yet not criminalized marital rape. people of India are of the view that any form of sexual intercourse between the man and women after marriage cannot be considered as rape even though it is forceful or without the consent of other spouse. This opinion is formed because in India the marriage is considered as a sacred institution, and criminalising the sexual intercourse between a man and woman in the said marital bond can destabilize the institution of marriage. 

Marital rape is not defined in any law of India. even though the term Rape is been defined and explained in Section 375 and 376 and 377 of Indian Penal Code, 1860:

Section 375 of Indian Penal Code:

Rape: A Man is said to commit "rape"  if he -- 

a. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

b. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

c. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

d. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under any circumstances falling under any of the following seven descriptions:-

First- Against her will.

Secondly- without her consent.

Thirdly- With her consent when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly- With or without consent, when she is under eighteen years of age.

Seventhly- When she is unable to communicate consent.

Explanation 1. - For the purposes of this section, "Vagina" shall also include labia majora.

Explanation 2. - Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1.- A medical procedure or intervention shall not constitute rape.

Exception 2.- Sexual intercourse or sexual acts by a man with his own wife not being under fifteen years of age, is not rape.

Section 376 of Indian Penal Code:

Punishment for Rape:- 

(1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.

(2) Whoever,-

a. being a police officer, commits rape-

i) within the limits of the police station to which such police officer is appointed ; or

ii) in the premises of any station house; or

iii)on a woman in such police officer's custody or in the custody of a police officer subordinate to such police officer; or

b. being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or 

c. being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or

d. being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or

e. being on the management or on the staff of hospital, commits rape on a woman in that hospital; or

f. being a relative, guardian or teacher of, or a person in position of trust or authority towards the woman, commits rape on such woman; or

g. commits rape during communal or sectarian violence; or

h. commits rape on a woman knowing her to be pregnant; or

i. commits rape on a woman when she is under sixteen years of age; or

j. commits rape on a woman incapable of giving consent; or

k. being in a position of control or dominance over a woman, commits a rape on such woman; or

l. commits rape on a woman suffering from mental or physical disability; or   (Omitted)

m. while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or

n. commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.

Explanation:- for the purposes of this sub-section,-

a. "armed forces" means the naval, military and air forces and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government;

b. "hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;

c. "police officer" shall have the same meaning as assigned to the expression "police" under the Police Act, 1861 (5 of 1861);

d. "Women's or children's institution" means an institution, whether called an orphanage or a home for neglected woman or children or a widow's home or an institution called by any other name, which is established and maintained for the reception and care of women or children.

(3) Whoever commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years but which may extend to imprisonment for life which shall mean imprisonment for the remainder of that persons natural life and shall also be liable to fine.

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this sub-section shall be paid to the victim.

Section 376 -A of Indian Penal Code:

Punishment for causing death or resulting in persistent vegetative state of victim:

Whoever, commits an offence punishable under sub-section (1) or sub-section (2) of section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term of which shall not be less than twenty years but which may extend to imprisonment for life which shall mean imprisonment for the remainder of that person's natural life or with death.

Section 376 AB of Indian Penal Code:- 

Whoever commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years but which may extend to imprisonment for life which shall mean imprisonment for the remainder of that person's  natural life and with fine or with death:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this section shall be paid to the victim.

Section 376 B of Indian Penal Code:

Sexual intercourse by husband upon his wife during separation:- Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years and shall also be liable to fine.

Explanation:- In this section, "Sexual intercourse" shall mean any of the acts mentioned in clauses (a) to (d) of section 375. 

Section 376-C of Indian Penal Code:

Sexual intercourse by a person in authority:- 

Whoever , being - 

(a) in a position of authority or in a fiduciary relationship; or 

(b) a public servant; or 

(c) superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force or a woman's or children's institution; or

(d) on the management of a hospital or being on the staff of a hospital, abuses such position or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than five years, but which may extend to ten years and  shall be also liable to fine.

Explanation 1. In this section, Sexual intercourse" shall mean any of the acts mentioned in clauses (a) to (d) of section 375.

Explanation 2. For te purposes of this section, Explanation 1 to section 375 shall also be applicable.

Explanation 3: "Superintendent" in relation to a jail, remand home or other place of custody or a women's or children's institution, includes a person holding any other office in such jail, remand home, place or institution by virtue of which such person can exercise any authority or control over its inmates.

Explanation 4: the expressions "hospital" and "women's or children's institution" shall respectively have the same meaning as in Explanation to sub-section (2) of section 376.

Section 376-D of Indian Penal Code:

Gang rape:-

Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years but which may extend to life which shall mean imprisonment for the remainder of that person's natural life and with fine:

provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this section shall be paid to the victim.

Section 376DA of Indian Penal Code:

Where a woman under sixteen years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life and with fine:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this section shall be paid to the victim.

Section 376DB of Indian Penal Code:

Where a woman under twelve years of age is raped by one oe more persons constituting a group or acting in furtherance of  common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person's natural life and with fine or death:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this section shall be paid to the victim. 

Section 376-E of Indian Penal Code:

Punishment for repeat offenders:

Whoever has been previously convicted of an offence punishable under section 376 or Section 376-A or Section 376 AB or Section 376D or Section 376DA or Section 376DB or Section 376-D and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person's natural life or with death.

Section 377 of Indian Penal Code:

Unnatural Offences:

Whoever voluntarily has carnal intercourse against the order of the nature with any man, woman or animal, shall be punished with imprisonment of life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

After going through the above sections in Section 375 of Indian Penal Code there is an exception reproduced here again "Exception 2.- Sexual intercourse or sexual acts by a man with his own wife not being under fifteen years of age, is not rape."  a plain reading of this provision will put you in thaughts that a sexual intercourse with a woman below eighteen years can hold you guilty of a rape but this exception of Section 375 does not hold you guilty if you have sexual intercourse with your wife who is between the age of 15 to 18 years old. Strange, isn't it?

In a case Independent Thought vs. Union of India [W.P. (c) 382 of 2013, S.C.C. 11 Oct. 2017] it was rightly observed by Hon'ble Justice Shri. Madan B. Lokur as follows, "19. As a first step in this direction, child marriages were criminalised by enacting PCMA in 2006 but no corresponding amendment was made in Section 375 of the IPC as it existed in 2006, to decriminalise marital rape of a girl child". 

The Division Bench consisting of Justice Shri. Madan B. Lokur and Justice Shri. Deepak Gupta it was suggested to make an amendment to this Exception 2 of Section 375 of Indian Penal Code, 1860. (https://indiankanoon.org/doc/87705010/). 

The Law Commission of India has time and again has recommended to remove the said exception from the said Section 375 of Indian Penal Code but sadly, the legislators of our country doesnot want to amend the said Section for the reason best known to them.


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