Marital Rape in India: The Need for Legal Reform

Chandra Verma, BA Politics and International Relations 09/12/2024

In India, marriage is supposed to be the most sacred institution of all. However, it veils a disturbing reality: the lack of consent emboldened by the laws that were meant to keep women safe. It normalises sexual assault within the confines of marriage, made possible by outdated legislation and backward social norms. In Indian marriages, the concept of sexual autonomy is frequently negated by marriage. In order to redefine consent in marriage and to reiterate the right to bodily autonomy, we must urgently criminalise marital rape in India.

The Indian government contends that criminalising marital rape would be ‘excessively harsh’ and has resisted petitions at the highest court that seek to do so. Indian law's position on marital rape stems from an antiquated structure that British colonial authorities established in 1860. Section 375 under the Indian Penal Code (IPC) specifies what constitutes ‘rape’ and the circumstances in which it may occur. Exception 2 states: ‘Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.’ This exception is termed as the ‘marital rape exception,’ which may be invoked by a man accused by his wife of multiple offences, including rape. Even though the Indian Supreme Court raised the marital consent age from 15 to 18 in 2017, this exception still treats women as mere property rather than equal partners. 

In recent years, the Indian judiciary has been asked to overturn this rule in a number of petitions. However, the government’s lack of action indicates that women's rights are not prioritised, and implies that a woman's autonomy is subservient to her husband's sexual entitlement. By not making marital rape a crime, Indian law upholds patriarchal ideas that subjugate women to their husbands' will. 

More than 100 nations have made marital rape a crime; India is not one of them. Due to social conventions and the importance placed on procreation, consent is seen as implicit or inconsequential in Indian marriages. In Indian customs, arranged marriages are highly prevalent. This idea in itself may present a lack of choice on the woman’s part, which could result in circumstances where family pressures and societal expectations supersede personal consent. This dynamic has the ability to undermine free and informed consent by fostering situations in which women feel pressured to have sex, even beyond arranged marriages. Forced intercourse is rape regardless of the perpetrator. Imagine a newly married woman coerced into a marriage, forced into non-consensual sexual acts by her husband, but unable to seek help because her husband's crimes are considered legal. In the controversial society we live in, there are people who would say: ‘Only a wife who doesn't understand her duties would make such a claim.’ Another would exclaim: ‘There must be something wrong with her character,’ and a third would question: ‘What sort of a wife would complain of marital rape?’ Except these are not just hypothetical scenarios, but real tweets posted by people in India on the issue of marital rape. 

The United Nations (UN), Human Rights Watch, and Amnesty International have also voiced their concerns on India's failure to make marital rape a crime, but to no avail. According to an Indian government poll, one in 25 women have experienced sexual assault at the hands of their husbands - a number that is probably underestimated due to underreporting. Notably, one-third of males in certain Indian states acknowledged coercing their spouses into performing a sexual act at some time in their lives. Despite these alarming numbers, the Indian Federal Home Ministry informed the Supreme Court that current regulations are enough to protect married women from sexual abuse. This draws attention to a glaring discrepancy between legal safeguards and women's lived realities. 

Survivors of marital rape suffer from severe physical and psychological trauma. However, only 24–26% of Indian survivors of intimate partner violence look for help of any kind, and only 2-4% turn to authorities for assistance. This hesitancy is exacerbated by the government's institutional resistance to addressing marital sexual abuse, underscoring the alarming state of marital rape in the nation. The normalisation of fear within one’s own home is unacceptable.

Marriage should never serve as a shield for sexual violence. Women are denied their fundamental rights by the present judicial system. In its pursuit of a more equitable and forward-thinking society, India must face the unsettling realities of its treatment of women. Redefining consent in marriage is not just a legal need, but a moral necessity. In order to eradicate the marital rape exemption, India must amend Section 375 of the IPC, fund victim care programs, and support educational initiatives that challenge patriarchal standards.