Student's Pen: The Unrecognized Crime of Marital Rape

Introduction

The recent case of Gorakhnth Sharma v. State of Chhattisgarh [2025 LiveLaw (Chh) 16] shook the entire nation. The facts so ghastly that people squirmed at the thought of such an offence and yet the court held that unnatural sex by husband with wife without her consent is not an offence.

This in turn, has now amplified the call for criminalizing marital rape.

Marital rape occurs when one spouse forces sexual intercourse on the other without their consent. The fundamental definition of rape remains unchanged despite the marital status—it involves sexual penetration without consent. However, establishing lack of consent is a key element in proving the crime, and this burden almost always falls on the victim.

In some cases, such as with minors, the law presumes the absence of consent given the nature of the offence. However, in certain situations, particularly within marriage, consent is often presumed, making the very concept of marital rape legally contradictory.

Presently, only 52 countries recognize marital rape as a crime, while in many jurisdictions, such as that of India, it remains unrecognized by both law and society. Rape laws exist and they often exclude married couples from their purview through what is known as the "marital rape exception clause."

History of Marital Rape

Historically, several justifications were used to uphold this exception. Early legal perspectives viewed wives as weaker and subordinate to their husbands, akin to property, making the idea of a husband raping his wife legally inconceivable. Another justification that was widely used was the "unities theory," which stated that a woman’s identity merged with her husband's upon marriage, thereby negating her own independent legal status. However, as society advanced and gender equality was pushed forward, these arguments lost relevance.

In 2012, the Justice J.S. Verma Committee, which was formed in response to nationwide protests demanding stronger legal protections against sexual violence, recommended the criminalization of marital rape. The committee's report suggested two major reforms: removing the marital rape exception and explicitly stating that marriage or any similar relationship cannot serve as a defense or a mitigating factor in rape cases.

The report criticized the legal immunity granted to husbands, calling it outdated and inconsistent with modern views of marriage as a partnership of two equals. However, the Criminal Law Amendment Bill, 2012, failed to address marital rape, and the Parliamentary Standing Committee rejected proposals to amend Section 375 of the IPC. The committee instead, argued that such a change would place undue stress on the family system and that existing laws, such as Section 498A on cruelty, provided recourse and no change was necessary.

In 2015, the Ministry of Home Affairs reiterated this archaic stance, asserting that the concept of marital rape could not be applied in the Indian context due to societal attitudes toward marriage as a sacrament. Subsequent legislative efforts to criminalize marital rape were met with cold government responses stating that the issue was under review by the Law Commission.

With the new criminal laws rolling around in 2023, Bharatiya Nyaya Sanhita, 2023 also failed to criminalize Marital Rape.

Need to criminalize Marital Rape

The failure to criminalize marital rape is a violation of women's fundamental rights under Articles 14 and 21 of the Indian Constitution.

While it is true that marital rape occurs within the private sphere of marriage, the state has a duty to intervene and protect victims. However, there has been judicial reluctance to apply fundamental rights within the marital domain which has created a legal void. This reluctance is evident in cases concerning "Restitution of Conjugal Rights" (RCR), a remedy allowing courts to compel spouses to live together. The Andhra Pradesh High Court, in T. Sareetha v. T. Venkata Subbaiah ( 1983 SCC OnLine AP 90), declared RCR to be unconstitutional, arguing that it infringed on personal autonomy and could force women into unwanted sexual relations.

Conversely, the Delhi High Court in Harvender Kaur v. Harmander Singh Choudhry ( 1983 SCC OnLine Del 322) upheld the constitutionality of RCR, stating that it aimed to preserve marriage rather than coerce cohabitation. The court dismissed all concerns about forced conjugal relations, reinforcing the idea that constitutional rights do not extend into marital relationships.

This very notion of a private marital sphere which stands immune from constitutional scrutiny, undermines women's rights. Feminist legal scholars have particularly challenged this public-private divide, arguing that shielding certain spaces from legal intervention leaves victims without recourse.

India's Constitution has historically dismantled oppressive private practices, such as untouchability, demonstrating that law must intervene even in personal relationships to uphold and ensure equality. Additionally, the cultural resistance to criminalizing marital rape is not a valid justification for maintaining the status quo.

Many legal reforms, including the prohibition of Dowry and the abolition of Sati, countered entrenched and uprooted deeply rooted cultural norms. The very same argument that marital rape aligns with societal views should prompt, rather than hinder, legal reform.

Conclusion

Ultimately, the exemption of marital rape from criminal law denies married women substantive equality and bodily autonomy and reinforces centuries old stereotypes. While there is political, legal, and cultural resistance, the justifications for the same lack legal merit. The exemption, it is argued, violates Article 14 by failing the test of equality and disregards women's fundamental rights. Alternative legal remedies, such as cruelty, are inadequate substitutes for recognizing marital rape as a distinct crime.

References-

1. Justice J.S. Verma Committee, Report of Committee on Amendments to Criminal Law (January 23, 2013).
2. Margaret Thornton, The Public/Private Dichotomy: Gendered and Discriminatory, 18 Journal of law and society 448 (1991).
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4. Catherine McKinnon, Feminism, Marxism, Method & the State: Toward Feminist Jurisprudence, 8 Journal of women in culture and society 635 (1983)
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