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Author: Pooja.c, V Year of B.Com.,LL.B(Hons.) from The TamilNadu Dr.Ambedkar Law University, School Of Excellence In Law, chennai

A husband is a companion to his wife and not a predator or god to his wife


Even at this 21st century, we live in patriarchal society where women’s rights are enforced only through a lot of fights, tragedies, debates & injustices and then a law is brought to regulate that particular offense. One of the biggest debates which have been taken till today is Marital Rape which has been in a darkest light of injustices so far but now has come into the lights of law. As we know marital rape isn’t an offence in India but about 150 countries have criminalised it such as United States, South Africa, Ireland, Canada, New Zealand, Malaysia and Canada.


Section 375 of INDIAN PENAL CODE defines rape as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 18 years of age” with the exception 2 where a sexual intercourse by a man with his own wife who is above the age of 18, is not sexual assault. This exception has brought various debates over past decades but still an answer to it isn’t found yet. The only issue in penalizing Marital Rape is that it is feared about Men’s Rights and impact of false allegations on men in marriage under the Indian society. Section 375 of IPC Exception 2 has been found violative of Article 14& 21 under the constitution of India which discriminates women who have been raped by their own husbands and from denying them equal protection from rape and sexual harassment just because they are in contract of marriage. Forced sexual intercourse between a husband and wife is a violation of fundamental right such as right to privacy, right to life and right to able to consent and be able to say no etc. In the case of Suchita Srivastava V. Chandigarh Administration, the supreme court held that right to make choices about sexual activity is very much within the scope of rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.


The case of RIT Foundation V. Union of India writ petition (C) no.284 of 2015 seeks to criminalize marital rape. The case was first challenges in the year of 2015 petitioned in the Delhi High Court. In the year of 2017, Supreme Court said that the marriage exception under sec 375 shall not apply to a married women under the age of 18, After which in the year of 2016 in an affidavit filed, the central government has stated that penalizing ‘Marital Rape’ would destabilize the institution of marriage and become a tool for harassment of husbands. While a new affidavit filed on January 20,2022, the central government has stated that consultation on this contemporary issue is going on especially in the light of 2013 Justice JS Verma committee report and the 2017 and the 2017 Supreme Court case which held that “marriage exception is not to the married women under the age of 18”. The issue is now dealt and being heard by a bench of Justice Rajiv Shakdher and C Hari Shankar. The major issue that revolves around this case is that the difference between marital relationship and an act done outside of marriage can be considered as “intelligible differentia” under the Article 14 of the Constitution of India. Just because a woman is married will her fundamental right of “saying NO” will be snatched away is also another legal issue in this case.

In another perspective, it will also lead to a question that whether if criminalizing marital rape would result in misuse of these laws against men. The Delhi Government have also argued that women who is subjected to violence and injustices by their husband may also approach the court through various acts such as domestic violence act, dowry harassment act and Indian penal code for bodily harm etc which would be other alternate remedies of violence by husband rather than penalizing marital rape. Also, the court will have also taken into notice that it is difficult to prove the offence in a relationship is acted as a regular sexual intercourse or in a forceful way without the consent unless a serious injury has been caused.


The marital rape has brought various confusions in the minds of society and legal academicians who are now in a situation of whether to protect the marriage institution which is prevailed in the society or to fight of women’s rights or to protect men against misuse of these law. All these issues must be taken into consideration before making laws against the marital rape. As these laws might change the perspective of husband-and-wife relationship in the coming future.


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