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Marital Rape: Historical and Comparative Analysis

Sonal Garg & Nivedita Singh are Law Students from Law College, Dehradun

Published onMay 03, 2022
Marital Rape: Historical and Comparative Analysis


Marital rape is an evil act that exists in India. Marital rape is no lesser than or a part of rape. Generally, victims of marital rape are married women. It is the biggest threat to gender justice in India. Marital rape is been for centuries but in ancient times women were not considered independent legal entities that can raise voices or they felt that it is wrong what is happening to them. Marital rape has not been considered rape by Indian society since then. It is rarely opposed by anyone in society to a variety of reasons. Marital rape means the rape committed by the person to whom the victim is married. In ancient times the girls thought that what their husband does is always right so they never thought that is wrong or injustice to them. Indian legislature in this regard has been silent till now. Indian legislature has been given the most onerous task of enacting laws for the safety, security, and development of the country by the Indian constitution. But the legislature is not interested at all in eliminating the evil of marital rape from the Indian society. So to know well about marital rape let’s go for the meaning and the historical background and how the laws in different countries view human rights on marital rape.

Keywords: Marital rape, history, India and other country,


India as a patriarchal society has always attached greater importance to men than women and always subjugated them to men. Women weren’t allowed to say or participate in decision making no matter whether the decision affects them or not. They were seen as a maid and do household chores. They had to follow whatever their husband says. Men used to be the sole bread earners and hence gained more respect in the society and seen as superior to women. Sati pratha was prevalent before 1829 where widow set herself on fire on her husband’s pyre. Women have suffered tortured behavior for a long time and have faced much turmoil. There is an old saying that reads: “Aurat, aadmi ke pairo ki jooti hai.” Regardless of how arbitrary the man makes the decision that the woman must blindly obey and Husband can be disrespectful to his wife. Most differences in the sexes have led to Atrocities inflicted on females. As society is moving towards modernisation and evolving, people’s perspective is changing and the difference between two genders are reducing. Lots of social activists Dedicated their lives to women’s upliftment, so that she could live her life on her own conditions. females generally don’t complaint against her husband and against her laws because from the beginning they are being taught to respect her husband and in-laws and save her marriage in every possible way. The patriarchy has made women inferior and weak , females are being taught by society to tolerate crime against her. If anything wrong happens be it rape, society blames women.

The word ‘Rape’ has been derived from Latin word rapio which means ‘to seize’. Its literal meaning can be said as a forcible seizure. It can also be said as ravishment of women without her consent or will, or consent, or consent obtained under force, fraud, fear, or carnal knowledge of women by force.1 Marital Rape is not a unique term that has originated just now; it has come into action from the day of the marital relationship of a man with a woman. Earlier, when the society was a male-dominated ones, and women were not having any rights to protect their dignity and integrity, and were regarded as an object to fulfill the sexual desires of man. This theory is even considered and followed in many parts of the country that have not criminalized marital rape because of the relationship between the husband and wife. India comes in the list of those countries that haven’t criminalized it yet. Years after the enactment of the Penal Code in various other countries, who have considered rape as a crime in their country, India is one of them; the concept of marital rape has come into the picture. After realizing that marital rape is covered under the essentials described under rape, few countries like England, Poland, Canada, Australia, and the USA have criminalized it. The same conflict is now arising in India. The conflict is on the two different views about Martial Rape. One side says that marriage itself gives consent to having sexual intercourse, while others say that rape should be considered rape irrespective of the relationship between a man and woman, and consent is and should play a major part in the rape, or marital rape. In the whole paper, the same is discussed as what should be considered fruitful according to the present law and order system in the case of India.


It was believed that if a girl marries a boy, she has given consent to have sexual intercourse and also that a husband cannot rape his wife. Rape was considered as a crime and theft of man’s property. It was not recognized as damage to woman but instead to her father or husband. A legal doctrine stated, upon marriage, a woman’s legal rights were subsumed by those of her husband. The property to be withheld in a woman was her virginity. A woman was considered as the property oh her father and after marriage the property of her husband. And thus it was assumed that a man cannot rape his own wife as she is his own possession. Marital rape cases are seen highly in forced marriages.

Rape laws was created to protect the property interests men had in their women and not to protect women themselves.

Laws in India and other countries


India has adopted the Penal Code from England only. Under UK law, marital rape is considered a form of sexual assault contravening the Sexual Offences Act, 2003. Before 1992, marital rape wasn’t considered illegal, and the husband could enforce conjugal rights on his wife without her consent. It was in the year 1991 that the case of R v. R2 in which the House of Lords consisting of five lords was brought to question whether a man can rape his wife?

In the case of R v. R, the appellant got married on 11th August 1984, and due matrimonial disputes wife left the matrimonial home and went on to live with her parents on 21st October 1989. While leaving, she through the letter showed intention to divorce. Later the appellant also had spoken to his wife indicating that he also wants to get a divorce. On 12th November 1989, the appellant entered into the house of his wife and tried to have sexual intercourse with his wife against her will and consent and further assaulted her on her continued denial. So the issue arose before the court was ‘Can a husband rape own wife? Does marriage give implied consent to have sexual intercourse without further consent?

The court held that exemption of marital rape from common law fiction has never valued in English law, and neither has it existed in English law. So he was convicted of the rape of his wife. The husband was sentenced to imprisonment of three years for attempt to rape and further imprisonment of eighteen months for sexual assault.

It was before the judgment of R v. R that the husband was not prosecuted for the offence of marital rape.3 This judgment is a true example of the evolution of a common law system with the change in developments in the areas of social, cultural, and economic. Before this judgment, the husband keeps his wife to act sexual slavery, just as in the case of a prostitute. Marital Rape is also a kind of domestic violence. Now if a person is found guilty of marital rape, he is likely to get punishment of imprisonment between four to nineteen years, depending upon the facts of the case. The maximum punishment which can be given in this case is life imprisonment.


During the 1970s many Australian states introduced many reforms and have analyzed the law relating to that of rape including other sexual offences.4 In 1975, Mitchell Committee was formed seeking changes on laws relating to sexual offences and rape.5 The report stated that “Consent is given for sexual intercourse at the time of marriage, it cannot be revoked during the subsistence of the marriage, and then it doesn’t follow up the modern thinking. In today’s world, it’s not right to say that ‘wife is bound to have intercourse with her husband whenever he wishes to, irrespective of her own wish and consent’. The wife who becomes the victim of the husband’s desires of sexual intercourse needs, protection of family law gives her the right to leave her husband and live in peace. In this condition, when she had left him and living apart from him, and if he forcefully does sexual intercourse with her, without her consent, then there exists no reason for holding him liable to be prosecuted under rape.6

It was in the year 1976, that Mr. Peter Duncan introduced legislation in October 1976. This legislation has removed the exemption from husband for not prosecuting him for raping his wife and thus has moved further with the recommendation given by Mitchell Committee. It was argued that the law which treats wife as the property of husband should be abolished. Further, every adult person must be given the right to consent for sexual intercourse, be within or outside the marriage.7Now the rape cases involving violence, the threat of violence, acts including gross indecency are various others are now considered within the scope of the law of rape. Though in starting it was only criminalized in South Australia but in the end, it was criminalized within all the jurisdiction of Australia.

Australia is divided into 7 different federal states which have their federal laws. Due to this, they all have different punishments for different kinds of criminal activities happen in their state. Marital Rape, fulfilling all the conditions of rape is punished with different degrees which depends on how brutal the crime is and follows maximum imprisonment of 15 years, unless the victim is below 15 years if so then 20 years of imprisonment. People who commit these crimes resulting in the death of victims suffer a punishment of imprisonment for up to 30 years.


Before the 1970s, Marital Rape was exempted from the rape laws available in different states of the country. The USA has fifty different federal states in which every state has its federal laws. In the seventeenth century, Chief Justice Matthew Hale of that time said about the impossibility of rape in a marriage legally, establishing irrevocable consent. Here irrevocable consent means men had an absolute right over his wife for sexual relations within marriage and founded an exception for marital rape.

A case of 1857 in Massachusetts became the first in the USA to recognize and considered Marital Rape an exception to rape. It was said that ‘it’s very difficult to even imagine how a husband could be prosecuted with the violent crime of rape. It is even more disruptive than the act itself.8 The women’s movement which took place in the 1970s had led to change the law in their favor. It was a goal that was to be achieved in the male-dominated legislatures. The movement started with some other prospective, like consequences of the unwanted marital intercourse that produces a child. This movement brought its support from a moral and legal perspective. Later the motive changed to the natural rights of ownership and control over their own body.9

It was in 1976, when Nebraska, became first among the fifty states to criminalize Marital Rape. By 1993, Marital Rape had become a crime in all 50 states of the United States of America. In which many of the states draw no distinction, which neither should be, between marital and non-marital rape, like irrespective of the relationship between the accused and the victim. After Nebraska has criminalized marital rape, other states started doing so, some through the bill passed in favor of criminalizing marital rape considering women independent women, and other states will the help of cases of marital rape which come before the court. The court gave judgment in favor of the women. And it acted as a precedent for all the upcoming cases of marital rape.

In South Carolina, those who have done first-degree crime of rape, including those of marital rape, carried a punishment of imprisonment of a maximum thirty-year sentence. While those who assault and battery in the first degree are given a punishment of a maximum ten-year imprisonment.10The punishment for rape and marital rape has been kept the same, i.e. irrespective of the relationship among the man and women.


In India, Marital Rape is not considered a crime and everyone is allowed to do forced sexual intercourse with his wife, and the law itself says this. It’s so ironic to say that people talk about keeping women safe within the country in streets, malls, and all other places except home. They don’t consider it necessary to talk about it. But the crimes happening with women inside their home can’t and should not be ignored. Although Domestic Violence Act, 2005 has brought about provisions to protect women in their house and also acted as good remedy for the various women victims, it wasn’t able to add Marital Rape in its scope. United Nation population fund has reported that more than two-thirds of married women, belonging to 15 to 20 years of age, is being subjected to crimes like forced sex, torture, beaten along with the demand for dowry. Many countries, as discussed above, have criminalized marital rape keeping aside the relationship between men and women. But in India, it is not so. In India, it is said that marriage itself gives consent to sexual intercourse after marriage, and the most important thing which makes rape different from sexual intercourse is the consent itself.

The point which needs to be focused upon is that ‘Marriage gives consent of having sexual intercourse, but it doesn’t snatch away the right from women to ‘say no’ to it. Denial of this right protects the husband from exercise his marital right of non-consensual and undesired intercourse with his wife.11 In the Indian context, sexual intercourse by a man with his wife, wife not below 15 years of age is not rape under Section 375 of IPC. Marital Rape is an exception of the Domestic Violence Act, 2005, so women don’t get any remedy on this basis. One of the most alarming facts is that number of victims of marital rape is increasing day by day, and the legislature acting as ignorant, by not criminalizing such offence.

There exists a misconception that ‘women put false allegation of rape, a monstrous brutal crime which kills dignity of themselves, to the accused which humiliates, causes great stress, damage to him’.12 As if this is the only concern then adultery should also be not decriminalized. In general, no woman will want to kill their dignity, prosecuting a victim also affects their reputation. In the case of Saretha v. T. Venkata Subbaih13, it was held that right and duties in marriage are not the terms of any private contract between two individuals, else it is like creation and dissolution. Privacy is not lost by Marital Association. As for this reason, there constitutes no punishment for marital rape, and so no remedies lie with her. Women were considered chattel to their husbands and that they don’t have any rights in the marriage except fulfilling the husband’s sexual desires.14


Marital Rape is the most brutal crime against the women, in which the body of women is considered as property by their husband and is exploited as per their husband’s choice. It has already been criminalized in many countries of the world by ignoring the current relationship among husband and wife, and focusing on the most important aspect which makes rape different from sexual intercourse, i.e. consent. In other countries like Poland, the USA, England this mere fact is enough to make the husband guilty of raping her. But that’s not the case with India. In India, marriage is considered as a sacrament and likewise embedded within the mindset of people living in society. Marital Rape though having all essential conditions couldn’t be regarded as a crime as here the relationship is given more value than human dignity, inhuman nature, and even laws. As no law exists in India which could deny marital rape being a crime legally. Except like the present case where it is counted as an exception even being violative of fundamental rights given under Article 14 and 21 of the Indian Constitution. The Condition of women is degrading day by day along with the increase in the number of cases of crime done against them. In these crimes, there is no record of crimes such as marital rape on which any women can’t even ask for a remedy. Just what she can do is to tolerate and get used by their husband. Even not a single judgment was given on privacy, dignity, or so exempts married women from it. But crimes such as marital rape violate every one of those. Now it’s high time that marriage should be given a broader meaning, and meaning of marriage as understood by husbands should change. For this, Indian Jurisprudence needs to understand and analyze the situation with a broader scope and strike such crime which goes against the Indian Constitutional Jurisprudence.

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