Marital Rape in India: Judicially Sanctioned Human Rights Violations and the Dehumanization of Women in the Biggest Democracy of the World

7 Baku St. U. L.Rev. 48 (2021)
Article language: English.


India, the largest democracy in the world, is a modern-day nation that considers marital rape not to be a crime. Not only is not a crime, but it is also a judicially sanctioned form of sexual abuse many Indian women suffer from, sometimes daily, without any possible recourse from the law. This paper will examine the legal position of the Government of India as well as the judicial system in India hold with respect to marital rape. The marital rape exception clause in the Indian Penal Code is unlawful and unconstitutional and creates an unreasonable arbitrary distinction between married women and unmarried women in India. The marital rape immunity, as it currently exists in the law books of India, violates Indian domestic law, constitutional law, as well as India’s international treaty obligations and must be abolished. In making this case, I will examine several articles of the Indian Penal Code, several articles of the Constitution of India, Indian Supreme Court decisions examining marital rape, and India’s international obligations under various conventions India is a signatory to, arguing that India is illegally and unconstitutionally suppressing the rights of women as it pertains to marital rape, thereby denying women justified recourse in violation of domestic as well as international law. Through silence, the judiciary in India recognizes and authorizes marital rape by Indian men, thus legitimizing this particular form of violence against women, simply because they are women and their status exist within society. However, a deeper analysis of the Indian Penal Code, the Constitution of India as well as Indian Supreme Court decisions shows that the marital rape exception clause has lost its legal legitimacy. The State of India must take several steps to ensure the real and transformative change in a society that battles a significant human rights problem with the marital rape exception clause.

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