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We are discussing an issue which deals with right to bodily integrity, right to life, right to privacy, and right to take decision regarding own body as provided by article 21 of the Indian constitution. The question in straight words is whether a husband can commit non consensual sex with his wife and will it amount to rape?


Sir Mathew Hal (Chief Justice of England in yesteryears) in 1676, was credited with having laid down the following principle:

“But 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 up herself in this kind unto her husband which she cannot retract.”[1]

In Rex v. Clarke[2] , Hale’s principle was given the burial it deserved and it was held that the husband’s immunity as expounded by Hale is archaic and offensive. It was reiterated that this is not the creation of a new offence, it is the removal of a common law fiction.”


The topic is in discussion since late nineties and from then the debate has progressed at snails pace. From National Commission of women to Ministry of Home Affairs, Ministry of Women and Child Development, Ministry of Law and Justice and Law commission of India all had deliberated on this social issue. But after all deliberation the parliament has one answer to all questions of human right that family system will come under great stress if justice is done to the sufferers.

The following important references are given by the parliament on which it bases its decision of not removing marital rape as exception to rape.


Rape is an offence, while marital rape though is not any offence according to exception 2 section 375 of IPC but is an exception in cases of rape. The exception says that sexual intercourse by a man with his wife who has attained majority is not rape. How can one thing be point of offence and defence at the same time.

Bare reading of first two condition of commiting rape as per sec 375 are as following:

A sexual act if done:

First.—Against her will.

Secondly.—Without her consent

Will be rape.

If we read the above the above two plainly it makes it clear that where consent ends, non consesual act of sex is rape and there should be no qualification being provided to even husband.

Code of Criminal procedure according to Sec 198(6) prosecution for offences against marriage: no cognizance of offence shall be taken u/s 376 if the sexual act is conducted by a man on his wife…..

The above lines are really a statutory permission to commit an offence opposed to fundamental rights of women as guaranteed by constitution of India.


The government till now has just one answer to this menace that if such an amendment is done then it will bring family system under great stress and more injustice will be done. In other words fifty percent of population ought to suffer physical violence of most henious and gross nature because family system is to be protected. Values that each family ingrains into the mind of the girl child that family’s happiness is dependant on women only gets a legal sanctity by such laws.


How to prove the commission of rape and the issue of misuse of this amendment if it takes place are not to shunned away because such misuse has happened in cases like dowry, sexual harassment but these are exception. The real fear of not letting many come to doors of justice is grossly wrong in a scenario when rape cases are still not registered to hundred percent of their occurence where girls still don’t have a say on their life’s decision like what and where to study, what employment to opt for or when to marry or to have kids or not. We are in a scenario where despite having equal succession right girls are expected not to ask for it we should not snatch a basic fundamental right of being owner of one’s body from women. It is responsibility of government to eradicate or kind on inequality wherever possible through legislation.


The courts are facing this question presently and in a matter of years country is bound to get a judgement which will decide the constitutionality of the provision regarding marital rape. Currently Delhi High Court is dealing with the issue and the matter is under consideration. Previously as well the apex court in Independent Thought Versus Union Of India And Anr[3] in limited capacity has dealt with this issue whereby in it amended the exception 2 of section 375 of IPC and raised the age of from 15 to 18 and thus it became a law that sexual act with a minor wife even with consent amounts to rape. This judgement dealt with social, economic condition of minor girls and treaded on path of women empowerment.

Though marital rape has yet not been dealt yet the following observation is very important:

In State Of Maharashtra v Madhukar Narayan Mardikar[4] it was observed that no one has any right to violate the person of anyone else, including of an ‘unchaste’ woman. This implidely means that consent everytime is sine qua non for sexual activities between two person and it is not dependent on status of relationship two people are in with each other.


Amendment should come from parliament and the judiciary should not shy away from strucking this fundamental wrong. Girls are still suppressed and their say is not listened to even today. The laws relating to rape should not artificially create a distinction between rape and marital rape. The society should not make the women suffer in name of traditions and effect of family system. That while doing amendment the relevant provision of IPC, CRPC and marriagiable age all should be immediately amended. The constitution of India is bound to oblige international treatise and Elemination Of Discrimination Against Women is one of its international obligation.


Consent is a voluntary act not a forcefully done act. The say of the women is being neglected by the delay in amendment of this law. Now the parliament is thinking to bring age of marriage to 21 for both girls and being someone’s husband should not be a license to commit henious offence. Rape shakes the overall personality of a person it is mental, social, physical and emotional cruelty. Let woman be the owner of her body. Rape is not marriage status dependent. Social and economic handicapp is bound to continue if this inequality continues. Justice cannot have an exception and even for patriarchial family system it cannot be divorced. Weshould stop feeding in our women that she is the one who ought to suffer. The question that is to be answered disgusts the mind of able thinkers whether rape is allowed by husband on wife? Rape is rape and has no exception. Opposite of rape is consensual sex, which is not forced. A woman is not a commodity and pleasure satisfying stuff. Restitution of conjugal rights another. Inability of parliament to recognise this crime is the continuation of patriarchal tradition.Women’s right is the least priority of any society and they are very hard earned. From past the lens of laws are masculine and the thinking of law makers also favours a suffering and sacrificing women. Domestic violence and abuse of different kinds have been made a normal for the women. The old notion of marriage are no more existing. Marriage is partnership of equality and no one is subordinate to other and none is property of other.

[1] W.P. (C) No. 382 of 2013(para 82) [2] (1949) 2 All E.R. 448 [3] Writ Petition (Civil) No. 382 Of 2013 [4] (1991) 1 SCC 57

This article is written by Poonam Maurya  of Amity University, Noida.

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