Martial rapes: A loophole in the Indian Legal  System 

Even after 73 years of Independence, women in our country are still not truly free and independent and still live under the realm of darkness and fear. It is indeed a somber reality of India. We have numerous laws strictly framed to protect the life of women but it looks like they have many loopholes. Rape is taken into account as one of the most heinous crimes done to women and statistic states that it is quite common in India. 

Nowadays we speak about rape quite normally in our country but what about those crimes done in the silence of night in the name of MARRIAGE. 

Whenever the word “rape” is mentioned, an individual tends to think about someone who is a stranger. No one can ever think about rape in the context of Marriage. Marital rape can be defined as any unwanted intercourse or  penetration (vaginal, anal, or oral) obtained by force, threat of force, or when  the wife is unable to consent. (1) 

Even it is difficult for women to believe that a husband can rape his wife. After all, a man can be accused of rape if he avails his conjugal rights. Rape within marriage is a concept that afflicts the wife to the very core.  The uneasiness of facing it and still having to silently suffer through it is an unbearable thought that affects the emotional, psychological, and mental stability of women.  

Marital rape is a huge problem in India. 1 in 3 man admit to raping their wives,  and 1 Indian woman is raped by her husband in every 3 seconds(2) .after that also  India is one of that 36 countries that have not criminalized marital rapes.(3)

Loopholes in our legal system in Context to marital  rape Laws 

1. The Protection of Women from Domestic Violence Act 2005 does not consider marital rape as a crime instead it is considered domestic violence(2) according to which if a woman faces marital rape she can knock on the door of the Supreme Court and obtain judicial separation from her husband.  However, that doesn’t entirely protect the women from the crime they have undergone. Rape is considered as a criminal offense but the act considers this violation as a civil offense and provides few civil remedies like fines, protection, etc. 

2. Exception 2 of article 375 of IPC(3) states that Sexual intercourse by a  man with his wife, the wife not being under eighteen years of age, is not rape.1 

It violates Article 14 which speaks about the right to equality before the law, because it discriminates against married women by not providing them equal protection from rape and sexual harassment.

The Exception formed two classes of women based on their marital status and immunized actions wreaked by husbands against their wives. By doing so, the Exception  makes possible the victimization of married women for no reason apart  from their marital status while protecting unmarried women from those  same acts. 

3. Sexual intercourse by husband upon his wife during  separation 

According to article 376B. Whoever has sexual intercourse with his 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? (6) 

It is an another loophole in our law This provisions lay down that rape within  marriage is merely a criminal offence in India if the age of wife is less than 15  years or, if she is above 15 years, only when committed during judicial  separation .

However, the punishment may either be a fine or imprisonment for a maximum term of 2 years or both. Even the punishment is milder if we compare it with rape crime in which the victim is not a wife. How a law can be so biased that they serve different punishments for the same crime on the grounds of marital status? 

4. Violation of the right to live with dignity 

Article 21 states that No person shall be denied of his life and personal liberty except according to the procedure established by law (7). Which also includes the right to live with dignity. But Marital Rape violates the right to live with dignity of women. 

In the case of Bhodhisathwa Gautam v Subhra Chakraborty (8), SC held that Rape is a crime against basic human rights and is also violative of the victim’s most cherished fundamental right. A married woman also has the right to live in human dignity, right to privacy, and rights over her own body. Marriage is not a  justification for taking away these rights. 

Case Laws 

Emperor vs shahu Mahrab (9)  

In this case, the husband was convicted under section 304A of IPC for causing the death of his child’s wife by rash and negligent act of sexual intercourse. 

Independent thought vs Union-of India (10)  

This was a landmark judgment in which the court took the most significant steps to criminalize marital rape which is an exception under Section 375 of  IPC and set a limit that non-consensual sexual intercourse with a wife below 18  years of age would amount to the offense of rape  

Mukesh & Anr. vs State for NCT of Delhi & Ors. (Nirbhaya  Gang Rape Case) (2017)(11) 

This was a landmark judgment in which the court observed it as the rarest of the rare cases and ordered them with the punishment of the death penalty.

This case also led to the formation of the JS Verma committee and various suggestions were suggested and finally an amendment was passed in the year  2013. 


After so many years of independence a women is still fighting in the country are  struggling to be safe. For men in India marriage is a way to have sex with women without her choice. It’s high time to understand marriage is not a means to rape women, it’s a bond of love, trust, faith, and understanding. 

India is a democratic country which consists of 50% female population and it is important to safeguard their right and dignity. Providing them opportunities and freedom is not sufficient if they are not safe in their own house.  Criminalizing marital rape is not a want it is a need. It is important to stop  distinction the rapes on the grounds of marriage and to bring the change in  current policy and pass some strict law to ensure the safety of a women. 

and Notes 


2. 3. 4. The Protection of Women from Domestic Violence Act, 2005, Section 3 Explanation 1 (ii). 5. 

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9. AIR 1917 Sind 42]. 



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