Whether Marital Rape Should Be Criminalized Or Not?
- IJLLR Journal
- Apr 21
- 2 min read
Akanksha Singh, Jagran Lakecity University
1. Introduction
The debate over whether or not to make marital rape a criminal offense in India raises questions about fundamental issues of consent, bodily autonomy, and gender equality. Over 100 countries have recognized any non-consensual sexual intercourse within marriage as rape. However, in India, even after the recent changes to the Indian Penal Code (which is now replaced by the Bharatiya Nyaya Sanhita, 2023) which included rape in the designation of sexual assault, as it is with so many issues in this country, we still have in law an exception to rape by virtue of marriage. This is based on the archaic notion that a woman in marriage has irrevocable consent to sex in marriage, no matter her agreement to a specific sexual act, and ignores a woman's right to say no.
In favor of making marital rape a criminal offense, supporters of the idea argue that no woman should lose any of her fundamental rights in a marriage, which includes the right to say no to sex. They emphasize that marital rape is still a form of sexual violence no matter the relationship. The legal exception to marital rape in India violates constitutional guarantees of dignity, equality, and personal liberty. Opponents of the change argue it could upset the family, and that it will open the floodgates to false accusations. There is also increasing judicial acknowledgement that adult married women have sexual autonomy, as the definition of rape is ever widening, yet there remain no legal protections for adult married women.
This research paper discusses the legal, social, and ethical dimensions associated with marital rape, its historical context, and the relevance of Queen-Empress v. Hurree Mohun Mythee.
2. Background and Legal Context
Marital rape has been a controversial issue in India with a historical and socio-legal justification that marriage takes precedence over autonomy. The legal doctrine and the social acceptance of wives as the "property" of their husband, whose wishes she is obliged to fulfill, has its genesis in the colonial system's legal writing, as well as the patriarchal ideologies surrounding the concept of marriage. Historically, English common law indicated a husband could not commit the crime of rape against his wife, as the legal assumption was that marriage operated as irrevocable consent. Other countries have abandoned that notion, but the exception for marital rape continues in India.
