Criminalize marital rape in India

Criminalize marital rape in India

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Marital rape or spousal rape is the act of sexual intercourse with one's spouse without the spouse's consent. The lack of consent is the essential element and need not involve physical violence. 

Although, historically, sexual intercourse within marriage was regarded as a right of spouses, engaging in the act without the spouse's consent is now widely classified as rape by many societies around the world, repudiated by international conventions, and increasingly criminalized.

The issues of sexual and domestic violence within marriage and the family unit, and more specifically, the issue of violence against women, have come to growing international attention from the second half of the 20th century. Still, in many countries, marital rape either remains outside the criminal law, or is illegal but widely tolerated including India. Laws are rarely being enforced, due to factors ranging from reluctance of authorities to pursue the crime, to lack of public knowledge that sexual intercourse in marriage without consent is illegal.

The prevalence of marital rape is difficult to assess, especially outside the Western World. Discussing sexual matters in many cultures is taboo. One problem with studies on marital rape is that the Western concept of consent is not understood in many parts of the world. Because many societies operate on social norms which create a dual system of sexual morality—one for sexual intercourse that is marital which is seen as an obligation that cannot be refused, and extra-marital, which is seen as wrong (or illicit/illegal). Issues of consent are poorly understood, especially by young wives (which are often young girls who do not have a proper understanding of sexual rights). 

While rape by a stranger is highly traumatic, it is typically a one-time event and is clearly understood as rape. In the case of rape by a spouse or long term sexual partner, the history of the relationship affects the victim's reactions. There is research showing that marital rape can be more emotionally and physically damaging than rape by a stranger. Marital rape may occur as part of an abusive relationship. Trauma from the rape adds to the effect of other abusive acts or abusive and demeaning talk. Furthermore, marital rape is rarely a one-time event, but a repeated if not frequent occurrence.Whether it takes place once or is part of an established pattern of domestic violence, trauma from rape has serious long term consequences for victims regardless of whether the assault is prosecuted or not.

According to a National Family Health Survey report (2015), 5.4 per cent of married women between 15-49 years of age in India reported that their husbands had physically forced them to have sexual intercourse against their will. At least 2.5 per cent women reported that their husbands physically forced them to perform any other sexual act without their consent.

A United Nations Population Fund survey (2014) revealed that 52 per cent of the women surveyed had experienced some form of violence during their lifetime while 60 per cent men said they had acted violently against their wife/partner at some point in their lives.

Reasons and Implications of Marital Rape

1. To show dominance : Due to disputes and discords between the spouses, the man tries to show his dominion by forcing himself on the woman. This way he destroys the woman's privacy and dignity.

2. Sexual dissonance:Sometimes, the woman may not be interested in sex for reasons that are clear only to her and may refuse her husband. Men are generally more oversexed than women are. So when the man is denied sex, he treats it as an insult to his manhood.

3. Unemployment : A 2002 study confirms that odds of marital rape are greater among unemployed men. Being unemployed may dent their self esteem which can precipitate into violence in the bedroom.

4. Family Aspects: If a man has grown up in an environment where he has seen his father enact the same behavior with his mother, the chances of him emulating his father will be greater.

Section 375 of the Indian Penal Code defines rape as sexual intercourse without consent and against the will of a woman. But exception to the Section 375 says sexual intercourse by a man with his wife, who is 15 or above, is not rape even if it is without her consent and against her will.

But in October 2017, the SC ruled that sex with one’s minor wife would amount to rape. It watered down the exception to Section 375 IPC which said sexual intercourse by a man with his wife not under the age of 15 would not amount to rape, saying it was inconsistent with the Juvenile Justice Act and the Protection of Children from Sexual Offences Act that fixed the age of consent of the girl at 18. But even after this verdict, marital rape in general continues not to be a crime as the SC refrained from making any observation with regard to marital rape. Even as India dithers, more than 50 countries, including the US, the UK, Canada, France, Mauritius, Sri Lanka and Bhutan, have already criminalised it.

The Law Commission (172nd Report, 2000) has opposed criminalising marital rape on the ground “that may amount to excessive interference with the marital relationship” and said forced sexual intercourse by a husband can be treated as an offence just like any other physical violence by a man against his wife.

But marital rape is just not a matter of violence, it is non-consensual and therefore, a kind of rape. It is a matter of basic human rights and thus it must be criminalized and the exception which legalizes marital rape in the Section 375 of Indian Penal Code must be removed.


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