by Shreya Singh and Saiba Aggarwal

Introduction: The Legal and Social Implications of Marital Rape
“If he who breaks the law is not punished, he who obeys it is cheated. This, and this alone, is why lawbreakers ought to be punished: to authenticate as good, and to encourage as useful, law-abiding behaviour. The aim of criminal law cannot be correction or deterrence; it can only be the maintenance of the legal order.”[1]
The fundamental principle of law is to maintain justice by ensuring that lawbreakers are punished, thereby validating the authority of legal norms and encouraging lawful behavior. However, when laws fail to address egregious violations, such as marital rape, they not only undermine justice but also reinforce harmful societal structures. Its more or less using women merely as means which was criticized by Kant forbidding a person using another and does or does not just using the other, or, equivalently, treating him merely as a means.[2]
In a system governed by law, the legal framework should be a shield for individual rights and dignity, not a tool for preserving outdated power dynamics
Marriage is the only actual bondage known to all laws. There remain no legal salves except the mistress of every house[3]. While this assertion may appear radical, a closer examination of women’s rights within marriage reveals its validity. Beyond the historical oppression women have faced, a fundamental right that remains denied to many is the ability to simply say “no” to sexual intercourse within marriage.
Throughout much of history, women have been treated as property, with their worth largely determined by their sexual “purity.” In this context, rape has traditionally been viewed as a crime against a woman’s father or husband. However, the issue becomes particularly troubling when considering instances of forced sexual intercourse perpetrated by a husband against his wife. While numerous societies worldwide recognize this as marital rape, with no legal immunity granted to the husband, some cultures, including India, have resisted criminalizing it. The reasons for this reluctance are evident in various judicial rulings and parliamentary debates.[4]
Historical Context: Legal Doctrines and the Treatment of Women in Marriage
“I have become a sex slave to my husband right from the day of my marriage. I was compelled and forced to have unnatural anal sex, oral sex by imitating the sex films.[5]
Offense of marital rape can be traced back to the Doctrine of Coverture. Coverture is a concept from Anglo-American common law, originating from feudal Norman traditions, that established a woman’s subordinate legal status within marriage.[6] The earliest recorded legal reference to marital rape dates back to 1736. During this period, Sir Matthew Hale, a chief justice in England, included the following in his work, History of the Pleas of the Crown (Hale, 1736)[7]
“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 has given up herself in this kind unto her husband, which she cannot retract”
This principle became known as the Lord Hale doctrine, which created a common-law exemption for marital rape, asserting that husbands could not be prosecuted for raping their wives. Though UK itself done away with this principle India on the other hand remain with the said exception even after new law BNS
The Justice Verma Committee: A Call for Reform
Post Nirbhaya Rape case in 2012, Justice Verma Committee was constituted to recommend amendments in the Criminal Law. In its recommendation, marital rape is no different from Rape contemplated under the IPC, 1860. Committee referred to the case of C.R. v. UK, which endorsed the conclusion that a rapist remains a rapist regardless of his relationship with the victim. Importantly, it acknowledged that this change in the common law was in accordance with the fundamental objectives of the Convention on Human Rights, the very essence of which is respect for human rights, dignity and freedom. The committee recommended the removal of marital rape exception and suggested that marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation; the fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape[8]
The historical tapestry of legal norms often weaves complex threads that reflect societal attitudes towards marriage and consent. The remnants of colonial legislation, particularly those that once excused marital rape, linger like shadows over contemporary justice. The Justice Verma Committee eloquently articulated the necessity of addressing this grave oversight, recognizing that consent is a sacred covenant, one that must be honored irrespective of marital status.
Conclusion: The Need for Legal Reform
To suggest, as some may, that a husband, in enacting acts of violence or violation, should be shielded from the weight of his actions because of his marital bond is an argument that falters under scrutiny. A man is a man; an act is an act; and rape, in all its abhorrence, is still rape—whether committed by a stranger or a spouse, stands correctly as stated by Justice M. Nagaprasanna of the Karnataka High Court.
Such distinctions serve only to diminish the gravity of the crime and perpetuate a harmful narrative that places the sanctity of marriage above the sanctity of individual autonomy.
In the grand tapestry of human rights, the threads of love, trust, and partnership must not unravel into justifications for abuse. The notion that a husband can wield power over his wife’s body without her unequivocal consent stands in stark contradiction to the principles of equality and justice.
Indeed, to criminalise and recognize marital rape is not merely an act of reform; it is an affirmation of the fundamental truth that every individual, regardless of relationship status, possesses an inherent right to autonomy and dignity. In this light, the discourse surrounding marital rape transcends legalities and touches the very essence of human dignity.
Shreya Singh and Saiba Aggarwal, both final-year students at the Faculty of Law, University of Delhi, bring a unique blend of academic expertise and a shared passion for social justice to their writing. Shreya, a graduate of Philosophy (Hons.) from Miranda House, offers a nuanced perspective shaped by her deep understanding of ethics and critical thinking. Saiba, on the other hand, is a graduate of Economics (Hons.) from Lady Shri Ram College, bringing analytical rigor and an appreciation for the socio-economic dimensions of legal issues. Together, they combine their interdisciplinary backgrounds to shed light on pressing legal and social challenges.
[1] Thomas Szasz (b. 1920), U.S. psychiatrist. The Second Sin, “Punishment” (1973).
[2] Treating Persons as Means First published Sat Apr 13, 2019; substantive revision Fri Oct 20, 202
[3] JOHN STUART MILL, THE SUBJECTION OF WOMEN, 1869.
[4] (Burgess-Jackson 1996, 44-49)
[5] Hrishikesh Sahoo v. State of Karnataka, 2022 SCC OnLine Kar 371 : (2022) 2 KCCR 145 : (2022) 2 KCCR (SN 109) 145
[6] Britannica, The Editors of Encyclopaedia. “coverture”. Encyclopedia Britannica, 8 Oct. 2007, https://www.britannica.com/topic/coverture. Accessed 26 October 2024.
[7] Sir Matthew Hale, Historia Placitorum Coronae (London Professional Books, first published 1736, 1971 ed) vol 1 629
[8] Marital Rape in India, Keerthi Krishna, Krati Purwar, Investigative Project Print, Asian College of Journalism