Marital Rape

The decision by the court to decriminalize section 377 of the IPC was a good one but I was just wondering if anything is being done to amend the existing rape law (section 375)? First of all, the law as it stands today assumes that rape victims are always women and secondly, it does not consider marital rape a crime…If women want to accuse their husbands or vice-versa of sexual violence they cannot do so as there is a general marital rape exemption in section 375 of the IPC, 1860…The foundation of this exemption can be traced back to statements made by Sir Matthew Hale, C.J., in 17th century England…Hale wrote:

“The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, which she cannot retract.”

Do jurists feel that since marital rape occurs between adults behind closed doors, it is not criminal?

Edited to add:

If IPC section 377 is repealed, then section 375 should be amended to include male rape of both adults and minors…The male rape provision should include rape by both men and women…

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14 thoughts on “Marital Rape

  1. Yet another legacy of the the 17th century that continues to dictate lives even today.

    Let’s hope that the judiciary, like it did with 377, also takes an enlightened view here. The government will only dither and drag its feet.

    Quirky Indian

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  2. Taking a slightly different line here, I think there actually should be a provision for annulment of marriage should a husband not fulfill his part of the bargain and does not have sex with his wife; he is also bound to do that. The same should apply to the wife.

    I also feel that if either of them no longer wants to do something that gives this fundamental pleasure to the spouse, then the marriage is a sham, has broken down and should be annulled. What is a relationship without give and take? And what is marriage without sex?

    I know many examples of men indulging in forced sex can be cited as examples but, with 498A already on for decades and the new domestic violence law also hanging over the heads of men, particularly those who have empowered and aware wives, the fear of getting booked or at least jailed on a mere allegation of marital rape will make it virtually impossible for them to have a normal marriage. I am sure some guys might even find themselves unable to do it out of fright!

    The law is already heavily loaded in favour of women. I think there is a sacred space that law should not intrude into; it will kill many marriages and increase the blackmail rates exponentially.

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  3. The Indian society has so many distinct and diverse layers, that a homogenous law is difficult. One that works for one class, maybe misused by another. But this just means the lawmakers need to get smarter and more sensitive. We still have things to work on, many many of them.

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  4. Does the domestic violence act cover martial rape? If so that may be sufficient? It will be very difficult to prove marital rape unless there is signs of severe violence

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    • Marital rape is very difficult to prove like any other rape unless there are signs of violence…But the thing is, this kind of rape is exempted which it shouldn’t be…I guess marital rape can come under domestic violence but there is no specific mention of it…

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  5. marital rape is a tough thing to prove thats for sure..plus with the kind of mindset thats there in our society I think its looked on as some perverted kind of patni dharma to ‘satisfy’ one”s husband… so the word marital rape is not understood or rather should I say people refuse to even accept it..

    What Vinod Sir has mentioned about an annulment if a husband does not have sex with his wife… I am not very clear on this law..I thought (as far as I know) that a woman could definitely ask for annulment if her husband did not have sex with her or ‘satisfy’ her…
    I may be wrong ..any more info on this by anyone?

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    • I think there is a law on it. Two months back I read this case about a girl divorcing her husband because he never ‘touched’ her after marriage. Turns out that he was gay and married her under pressure from family. She also filed a case against him for cheating. Cheating as in hiding the truth.

      Sadly! in our society, this doesn’t seem to be a big issue. Recently I was laughing at a statement I read where one actor (I think Irrfan Khan) told a Hollywood director that Indian people have sex with clothes on. 😆 He was talking about how bedroom scenes are depicted in our cinema but to an extend it is also true for many families..mostly in joint families. To some sex is just a mean for procreation so the allegation that husband or wife is not having sex becomes a non-issue.

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    • I am not sure, but don’t you think, the ‘incompatibility’ would take care of such issues.. If the 2 partners are not satisfying each other – they are clearly incompatible..

      Marital rape, I think is another issue, because it would come under domestic violence as well…

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  6. Bones, I think marital rape, in India is just not even tackled.. The mere concept that
    “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, which she cannot retract.”

    I think what is important is that as you say, when either of the partners say ‘no’ – it is respected. And laws, need to be framed such that the misuse is minimal. Every law can be misused. That does not mean that we do not make the necessary changes. What is required is sensible and reasonable laws, which do not exist – simply because it made sense in the 17th century, but because it is relevant today.

    As for misuse, we have to have safeguards to try and reduce the misuse.

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