Marital Rape: The Undisclosed Tears

Marital Rape: The Undisclosed Tears

After 75 years of independence still women are in fear to tell if something bad happen in wedlock. Women are under the pressure of society and that is why most of the cases remain hidden or undisclosed. Marital rape is described as a rape by the victim’s male spouse. In nations including the United States, the United Kingdom, and Canada, it is a crime. However, India is one of the thirty-two nations where spouses cannot file a criminal complaint against their partners for having non-consensual intercourse.

What is Marital Rape?

As the name itself is clear marital rape is the rape committed by the person to whom the victim is married. If any man commits sexual intercourse in the influence of force, threat or under any other influence without obtaining consent of his wife, is known as marital rape. The definition of rape that is given under Section 375 of Indian Penal Code, hereinafter referred to as IPC says that every man is said to commit rape if he does sexual intercourse with a woman without her will, so here question arises that whether such will is not required after marriage?

What are the provisions in India for Marital Rape?

Although there is nothing mentioned about the marital rape but exception 2 of Section 375 of Indian Penal Code says that “sexual intercourse by a man with his own wife which is above 15 years, is not a sexual assault. (Means marital rape is not penalised? but is this constitutionally valid?) A big question arises here that assault with a married woman who is above 15, has no rights for her safety?

Why Marital Rape should be penalised?

The thinking that rape will be conducted only by the strangers or other people is completely unconstitutional as no one can read the mind of any person and the trauma of rape is same for the married and unmarried women.

Violation of Article 14 of the Indian Constitution: Article 14 clearly indicates the equality among people and the provisions of IPC regarding rape discriminate between the rights of a married and unmarried woman. Every woman has her modesty and outraging that modesty should be criminalized equally.

Violation of Article 21of the Indian constitution: Article 21 states that every person has right to live with dignity and this has wider interpretation in different case laws, right to live includes right to privacy and it is interpreted in the case of K.S Puttaswamy in which court clearly says that right to privacy means decisional privacy so why this privacy is not guaranteed to the married women that whether she want to cohabitate with her husband or not.

Similarly in Suchita Srivastava v. Chandigarhadministration (Civil Appeal No. 5845 of 2009), the Hon’ble Supreme Court clearly mention that right to make choices in sexual activity under the scope of right to live with dignity and then why this is not applicable to married women.

Scholars’ views:

Marital rape is not a criminal offence in India, but some provisions are given under the special enactments. The Protection of Women from Domestic Violence Act, 2005 clearly states that “any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it harms or injuries or endangers the health, safety, life, limb or wellbeing, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse. It states that sexual abuse includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman”.

Some scholars have raised point that it will be unfair to enter into the matrimonial matters.

Some skeptics thinks that it will be difficult to prove marital rape as there are no evidence to prove, it can’t be proved medically whether rape has committed or not. The only evidence of consent is victim testimony whether it is true or not and if marital rape will be criminalised it can be used as tool against men.

It is shocking to mention here that in our country a women who is less than 18 are not allowed to marry but on the other hand a  married women who is above 15 years is allowed to marital rape.

Recent Judiciary viewpoint:

Our judiciary review each and every matter as and when  required, Marital rape being a controversial issue is being reviewed by judiciary multiple times. Division Bench of Delhi High Court gives two different statement on marital rape Justice Rajiv Shakhder said that the exception to the rape should be criminalized as it is the matter of right to personal liberty enriched under fundamental rights, whether she is 18 or above 18, whereas Justice C. Harishankar has different view from him, according to his opinion change of the law should be done by legislature as various aspects have to be checked in respect of social, cultural and legal. The matter is now referred to the Supreme Court of India.


Marital rape is a debatable issue in India. Different people have different perspectives on this topic. Marital law should be criminalised and due measures have to be taken to make them implemented properly. Marriage does not mean that a woman is always ready for the sexual intercourse her consent is important as much as it is important for an unmarried girl. It will be unconstitutional to deprive her from her constitutional right only because she is married. Due to marital rape number of cases for depression, suicide, anxiety is increasing day by day.

Surbhi Singla

Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali

Let’s differentiate Cognizable and Non-Cognizable Offences

Let’s differentiate Cognizable and Non-Cognizable Offences

In simple terms, cognizance means knowledge, whereas offence means anything which is declared unlawful. In legal terms, the acts which are declared wrong under the substantive law are called as offence. On the other hand, cognizance means taking action by police officer, whenever a police receive any information he has to take cognizance.

Now the question arises where the police has power to take cognizance, or where they have to take permission? To answer this, offences have been classified under two categories i.e. cognizable and non cognizable offence under schedule 1 of Code of Criminal Procedure Code. Cognizable offence are more serious crime while non cognizable are less serious crime.

What are cognizable offences?

Cognizable offences are the offences in which a police officer can arrest without warrant. While defining the cognizable offences we can extract three different terms i.e. offence, police officer and warrant. Our country has certain laws and if someone breaks that law that is known as “offence”. Police officer means a person who carries out his duties under the police act. Warrant means a legal document issued by the duty magistrate or any other person authorised to issue to arrest any person.

Our substantive law clearly states that which offences are cognizable and which are not; such as it is written under the head of classification of offence in Indian Penal Code, 1860 and also in first schedule of the Code of Criminal Procedure, 1973 herein referred to as CRPC. Generally the cognizable offences are more serious in nature and there are chances that the person who has committed that offence ran away.

What are non-cognizable offences?

Non-Cognizable offences are the offences in which a police officer cannot arrest anyone without warrant. The definition of non cognizable offence is given under sec 2(c) of CRPC.  The classification of offences is given under the first schedule of CRPC. The crime under non cognizable head is less serious in nature.

Powers of Police Officer in both categories of offences:

Cognizable offences

In cognizable offence the police officer after receiving the information from complainant or any other source can directly right the complaint and can go to the spot for arrest. The complaint for the offences which are against women such as offence of rape must be written by the female police officer.

If there is any offence which is against woman and due to that offence she is temporarily or permanently disable and unfit to come to the police station to record the FIR (First information Report) then the information should be recorded at victims place or at any place of victim choice, moreover that recording should be video graphed. Police officer can start the investigation immediately without waiting for the orders of magistrate.

Non-Cognizable offences

As non cognizable offences are less serious in nature therefore the police officer cannot arrest the accused without warrant. After writing the information received by the complaint the police officer has to wait for the order of magistrate for further investigation.

What is the difference between cognizable offence and non cognizable offence?

  • Cognizable offences are the offences in which police officer can arrest a person without warrant whereas in non-cognizable offences a police officer has to take permission from the magistrate before arresting the person, means an arrest warrant duly signed by the duty magistrate is required.
  • Cognizable offences are serious in nature whereas non cognizable offences are less serious in nature.
  • Permission of court is not required in cognizable offences for the purpose of investigation whereas in non cognizable offences prior permission of court is necessary for initiating investigation.
  • Section 2(c) of CRPC defines cognizable offences whereas the definition of non cognizable offence is given under Section 2(l) of CRPC.

What if the case is both the cognizable and non cognizable offence?

If there are more than one offence and all are the combination of cognizable and non cognizable offence then in that case the procedure for cognizable cases is followed.


The distinction between the two categories is vital to understand the powers of police authorities, procedure of investigation, and so on. In cognizable offences the police authorities are vested with powers to arrest the accused and to embark upon an investigation on their own without seeking prior permission of the concerned Magistrate. This step is taken in order to apprehend the accused at earliest since cognizable offences are serious crime. Presumably the accused in such cases can cause harm to other people in society. However, this is not the case in non cognizable offences. To sum up, the procedure to investigate remains the same in both the categories and only the initial process i.e. the arrest of the accused, is different in both.

Surbhi Singla

Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali