January 27, 2022


ABSTRACT – Rape is an offence against women violating her dignity and self – respect and when it occurs within four – walls of a matrimonial home it reduces a women to the status of an object used merely for sexual gratification . There is an immediate need of the hour for an district law on material rape in India. The women has right to fight foe protection when violators are outside entities by when the perpetrator of her bodily integrality is her own husband who she married with all the pomp and show such protection is withdraw by legislators . Though material rape is most common and repugnant form of masochism in Indian society, it is hidden behind the iron curtain of marriage . The law does not treat material rape as a crime even if it does the issue lost in a cloud of legal uncertainty.


Marital rape refers to unwanted intercourse by a man with his wife obtained by force , threat of force or physical violence or when shr is unable to give consent . It is non – consensual act of violent perversion by husband against the wife where she is abused physically and sexually .


The following kinds of material rape , generally prevalent in the society.

BATTERINGG RAPE – in this type of rape women experience both physical and sexual violence in the relationship and in many ways . Some instances are those where the wife is battered during the sexual violence or the rape may follow a physical violent episode where the husband wants to make up and coerces his wife to have sex against her will . In most cases the victims fall under this category .

FORCE- ONLY – RAPE – in this type of rape , husband use only that amount of force as it necessary to coerce his wife . In such cases battering may not be characteristics and women who refuse sexual intercourse usually face much assault .

OBESSIVE RAPE – in this rape , assaults involve brutal torture and preserve sexual acts and are most commonly violent in form , this type has also been labeled as sadistic rape .


Section – 375 of Indian penal code defines rape as sexual intercourse with woman against her will , without her consent by coercion , misrepresentation or fraud or at a time when she has been intoxicated or duped or is of unsound mental health and in any case if she is under 18 year of age . But this section has an exception clause which state that sexual intercourse by man with his own wife , the wife is not being under 15 years of age , is not rape .


1. When the wife is between 12 – 15 years of age , offence punishable with imprisonment up to 2 years , or both .

2. When the wife is below 12 years of age , offence punishable with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine.

3. Rape of judiciary separated wife , offence punishable with imprisonment up to 2 years and fine .

4. Rape of wife above 15 years in age is not punishable .

In 2005 , the PROTECTION OF WOMEN FROM DEMOESTIC VIOLENCE ACT 2005 was passed which although did not consider material as a form of domestic violence . Under this act , if a woman has undergone martial rape , she can go to the court and obtain judicial separation from her husband .


The whole legal system relating to rape is in mess the major lacuna that come in the way of empowering women against marital rape :

1. The judicial interpretation has expended the scope of article – 21 of the constitution of India by leaps and bounds and right to live with human dignity is within the ambit of this article . Marital rape clearly violates the right to live with dignity of a woman and to that effect it is submitted that the explanation 375 of Indian penal code 1860 , is violate article 21 of the constitution .

2. The law prevents a girl below 18 years from marrying but on the other hand it legalizes non – consensual sexual intercourse with a wife who is just 15 years of age .

3. Indian penal code 1860 , it is rape if there is a non – consensual intercourse with wife who is aged between 12 and 15 years , however the punishment may either be a fine or an imprisonment for a maximum term of 2 years or both , which is quite less in comparison to the punishment provided for rape outside the marriage .

4. A husband cannot be prosecuted for raping his wife because consent to matrimony presupposes consent to sexual intercourse , it is an implied term of the contract of marriage , and wife cannot breach the contract of marriage .

5. Article 14 of the constitution guarantees the fundamental rights that state shall not deny to any person equality before the law or equal protection of law within the territory of India .


It is conceded that changing the law related to sexual offences is formidable and sensitive task , and more so in a country like India where there is presence of contemporaneous presence of varied and differentiated system of personal and religious law . To bring a change an existing policy , we may use an individual rights rhetorical approach in working towards criminalizing marital rape in India , not only child brides but all wives need legal protection from rape within the marriage . The patriarchal powers structures have deemed marriage to be a license to be license to legal unwilling sex . There is a total negations of a self-respect and bodily integrity of a women .There is also a need to educate the masses about the crime , as the real objective of criminalizing marital rape can only be achieved if the society is acknowledges and challenges the prevailing myth that rape by one’s spouse is inconsequential .

Author Details: Aakansha Latala and Ishika Agrawal (Manipal University, Jaipur)

The views of the author are personal only. (if any)

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