This paper aims to examine the gap in marital rape law in the Indian legislature. Under Section 375 of the Indian Penal Code 1860, any kind of sexual act by a man on a woman against her free will or consent would constitute rape. However, as an exception to this, it is also mentioned that sexual intercourse or sexual acts by a man with his own wife when the wife is above 18 years of age would not constitute rape.
This paper examines the invalidity of this exception in totality as per the norms of present day feminism and legislature as it violates a married woman’s fundamental right to equality, the right to life with dignity and the right to self-expression. Moreover, the fact that husbands can be penally charged for other lesser crimes against their wives with the exception of rape creates an anomaly that needs to be addressed to safeguard fairness, justice and basic human rights.
Despite many horrifying instances of marital rape in judicial history, the offence of marital rape continues to hide under legal ambiguity. This breeds a culture of silence, tolerance, and violence behind closed doors as the social construct of ‘marriage’ conveniently continues to serve as a licence for the same.