MARITAL RAPE

ABSTRACT

Marriage is a sacrament between two people which is so pure. But raping the partner is an
inhuman act and has much more gravity than safeguarding an artificial institution of
marriage. A person’s bodily and mental integrity is so much above to it.

If the sole object behind not criminalizing marital rape is to preserve the conjugal rights of
husbands or the marriage institution, “such an object itself is unconstitutional and the
exception can't remain in the statute book”.

It was in the second half of the 20 th century that the concept of marital rape sparked the
International interest and momentum. It was then that several international bodies began their
work against this marital rape so as to kill the darkness and violence to women. Various
International covenants and laws came into being to stop this crime of marital rape. Many
nations of the world adopted these laws and rules, but so many of them are still left to adopt
and make laws against it. India is one of these countries.
Table of Content

1. Introduction
2. Rape vs. Marital Rape
i. Rape
ii. Marital Rape
3. Questioning the legality
i. Right to Live with Human Dignity
ii. Right to Sexual Privacy
iii. Right to Bodily Self - Determination
4. The argument of “Indian Culture” and Government’s Stand
i. The “Indian Culture” argument
ii. The Current Case
5. Victim’s battle for justice
6. Analysis and Conclusion
 1. INTRODUCTION

“Her friends used to tell her it wasn’t rape if the man was her husband.
She didn’t say
anything, but inside, she seethed. She wanted to take a knife to their
faces” – F. H. Batacan
A situation very much under lime light when it is in the context of India is of marital rape.
Marriage is a sacrament between two people which is so pure. But raping the partner is an
inhuman act and has much more gravity than safeguarding an artificial institution of
marriage. A person’s bodily and mental integrity is so much above to it.

If the sole object behind not criminalizing marital rape is to preserve the conjugal rights of
husbands or the marriage institution, “such an object itself is unconstitutional and the
exception can't remain in the statute book”. 1 They even claimed that making any law as on
this will harass the men of the society.

It was in the second half of the 20 th century that the concept of marital rape sparked the
International interest and momentum. It was then that several international bodies began their
work against this marital rape so as to kill the darkness and violence to women. Various
International covenants and laws came into being to stop this crime of marital rape. Many
nations of the world adopted these laws and rules, but so many of them are still left to adopt
and make laws against it. India is one of these countries.

Looking at the statistical data of 2005- 06, as per the data of National Family Health Survey,
out of the 80,000 women interviewed by them, 93% revealed that they have been sexually
abused by their current or formal husband.

As per a survey of the year 2011 in India, it was seen that among every five men, one had
forced his wife to have sex.2 It has been claimed by more than two-third of the women of the
country falling in the age group between 15 to 49 years have experienced sex by their
husband which was forced or was done with violence.3

1
‘Criminalising Marital Rape Will Not Desecrate Institution Of Marriage, Court Told’ ([Link])<
[Link]
told-2743359> accessed 19 February 2022
2
The International Men and Gender Equality Survey, 2011.
3
The United Nations Population Fund Survey, 2000.
In yet another report4, it came out that there was a ratio of 1:7, when a married woman was
raped by her husband. And the most saddening part is that the women can’t report it as it is
no acknowledged crime. It was also asserted by women that their husbands were often in a
drunk state when they forced sex on them.5

The data of 2015-16 showed the result in negative with zero improvement. 99.9% of the
cases go unreported. Less that a percent of cases was reported reveals National Crime Record
Bureau’s data.

Research objective –

Hypothesis: That there are certain laws which safeguard women against Marital Rape. It
should also be outrightly be made null and void.

Research Question: Is it necessary to criminalize marital rape?

Research Methodology: Doctrinal research include a detailed examination and analysis of

previous legislation, judgments, papers, publications, and internet sites.

2. RAPE VS. MARITAL RAPE

i. Rape: A type of sexual assault involving sexual intercourse or some varied form of
sexual penetration which is carried out on a person in absence of their consent. The
act could be performed out through force or violence, coercion, abuse of office, or
against an individual who is unable to give valid permission, such as someone who is
asleep, disabled, has an intellectual handicap, or is under the age of majority.
As defined by the World Health organization, rape is a form of sexual assault. The
Centers for Disease Control and Prevention (CDS) has rape included in their
definition of sexual assault; it is termed as a form of sexual violence.
There are differing definition and perspective regarding rape and sexual assault in
nations and jurisdictions.
The term “Rape” means "forced seizure," and this aspect is a distinguishing feature of
the offence. Wharton defines rape as "unlawful carnal knowledge of a woman by
force against her will."
As per the Indian Penal Code, 1850, rape has been mentioned in Section 375.
4
Joint Women’s Programme, an NGO, New Delhi
5
Mihika Basu, ‘Marital rape is an ugly reality’([Link], 30 April 2013)
<[Link] >accessed 28 February 2022
 Section 3756. Rape. —A man is said to commit "rape" if he--

(a) inserts his penis to any degree into a woman's vagina, mouth, urethra, or anus, or
forces her to do the same with him or another person; or
(b) puts, to any extent, any item or body part, other than the penis, into a woman's
vagina, urethra, or anus, or forces her to do so with him or any other person; or

(c) persuades any portion of a woman's body in order to create penetration into her
vagina, urethra, anus, or any other part of her body, or forces her to do so with him or
another person; or

(d) puts his mouth to a woman's vagina, anus, or urethra, or forces her to do so with
him or another person, under any of the following seven conditions:

First. When it is done without her willingness

Secondly. When her consent is absent

Thirdly. When consent is present, but such consent was derived from fear of death or
hurt.

Fourthly. When consent is present, but the man knows that she gave consent knowing
him as her husband or someone she is legally married to.

Fifthly. When consent is obtained when she is not in her senses, intoxicated or under
the influence of any such substance with which she is unable to understand the act.

Sixthly. When she is less than 18 years of age, even though consent may or may not
have been given.

Seventhly. When she is unable to give her consent.

6
Indian Penal Code
 Explanation 1. Labia Majora also comes under while referring to “vagina” for the
purpose of this section.
Explanation 2. Consent is defined as an unmistakable consensual arrangement when a
woman signals her agreement to engage in a certain consensual intercourse using
words, actions, or any other kind of verbal or nonverbal communication:

Provided, however, that a woman who does not physically oppose the act of
penetration should not be interpreted as agreeing to the sexual intercourse just on the
basis of that circumstance.
Exception 1. No medical procedure may constitute rape
Exception 2. Sexual acts done by a man to his own wife, only when she is not under
the age of 15.

It’s the absence of consent which makes rape, Rape. It is the key ingredien. The
consent need not be verbal always, it can even be expressed consent. But absence of
any of these objections constitutes rape.
The Indian law on Rape, terms rape in marriage when the wife is below the age of 15.
There are no provisions when they are above that age.
Looking at what is the real driving motive behind rape, the WHO has come up with
three motives:
 Faith in family honor and perpetual virginity;
 male sexual privilege attitudes; and
 lax legal punishments for sexual assault

The question, "Have you ever been forced to have sexual intercourse against your
will?", has been used by the WHO to assess the severity of global rates of coercive, forced
sexual activity. This question elicited more favorable responses than the question of whether
they had ever been assaulted or raped.

ii. Marital Rape

The very aspect of marriage which has not yet come into the ambit of the law is
marital rape. Also know as spousal rape, marital rape is that kind of rape which is
done on one’s spouse without their consent.
Since all the time in history, men have in a way or other, used and enslaved the
women just for their sexual pressure. He has done everything in his capacity to
subjugate her mind and made his inferior.
“Marital Rape”, by its very term can be understood as rape done in phases of
marriage. It means unwanted penetrative intercourse done through physical or mental
force or when she is unable to give her assent.
Patriarchal framework of the society when the woman is always expected and has to
practice being under the power of the male members, is always treated as an
unimportant property of them. This made rape a heinous crime as it was seen as a
theft of ladies and a crime directly or indirectly against her spouse or guardian.
But what about rape done after that girl is married? Marriage acted as a shield to the
crime. Men kept using her as his sexual satisfaction leaving her with no sexual rights
of her own. And she couldn’t utter a word as the society considers it as a right of the
spouse.
Many states have either made laws criminalizing marital rape, or have rescinded
marital rape particular situations or have legislation that don't really distinguish
between spousal and routine rape. This shows times are changing and marital rape is
being now treated a huge infringement into the human rights of an individual. In not
less than 100 countries of the world, in the year 2006, marital rape was agreed as a
serious offence. But this did not include India. “Marital rape, in India, is holed up
behind the hallowed drapes of marriage.”
As per a popular and historical myths, marital rape has very mere or no effect on the
mental and physical health of women. But researchers say the other way. According
to them, the event of marital rape has a very severe and prolonged trauma on the lives
of females.
Damage to genital parts, cuts and bruises, discomfort, bruises, meniscus tears,
tiredness, and puking are all possible physical consequences of marital rape. Other
effects include fractured limbs, black eyes, nose bleeds, and knife wounds.
Miscarriages, stillbirths, urinary infections, fertility problems, and the possible
transmission of highly contagious diseases such as HIV are all particular gynecologic
effects of marital rape.
The psychological effects of marital rape are also far reached. It has both short- and
long-term effects. Panic, shock, acute dread, despair, suicidality, and post-traumatic
stress disorder are some of the short-term symptoms of marital rape. Long-term
 consequences frequently include bad eating habits, sleeping problems, depression,
difficulties forming trustworthy relationships, and increasing bad emotions about
oneself.
Other than this, it becomes very difficult for the victim to define what has actually
happened with her. The victim is often helpless, as due to the cultural reasons, it is not
easy for her to define her spouse as a ‘rapist’.

3. QUESTIONING THE LEGALITY

i. Right to live with human dignity

The law of Right to Life is an all-inclusive right. All the time, it has been seen and
closely noticed that whenever any issue comes up relating to the violation of
human rights, the Right to Life, i.e. Article 21 of the Indian Constitution acts as a
savior. This right does not entertain any kind of influence neither from the State
nor from any third party. If any kind of violation has happened, the individual can
immediately seek relief under Article 32 by approaching the Hon’ble Supreme
Court.
In the very popular case of Francis Corallie Muin V The Union Territory of
Delhi7, the concept of Right to Live under Article 21 of the Indian constitution
was mentioned. The Right to Live with Dignity is a project amongst the most
fundamental component of the right to life which perceives the independence of
the person.
The Supreme Court has held a chain of cases that the crime of rape abuses the
right to live with human dignity of the victim of the case.
The Chairman, Railway Board & Others v Chandrima Das & Others 8 is one
the greatest example of this. The supreme court has noticed that rape is not just a
crime in the eyes of the Indian penal code, however it is an offence against the
society as an aggregate. In this way the marital exception principle is breach of
wife entitlement to live with human dignity.
Any law that damages wife’s entitlement to live with dignity and drive the wife to
have sexual intercourse without her consent is not acceptable and is unlawful.

7
AIR [1981] SC 802
8
(2000) 2 SCC 465; MANU/SC/0046/2000; AIR 2000 SC 98
 ii. Right to sexual privacy
The recent judicial developments have revealed that, now it is against the law if
someone encroaches into the privacy and personal space. In a series of cases like
Neera Mathur V LIC9, Govind V the State of Madhya Pradesh10, Kharak
Singh V the State of U.P11 and many more, the Supreme Court has noticed that
the Right to privacy is naturally ensured under the Article 21.
The right to privacy under Article 21 integrates right to sit unbothered. Any
intense sex damages the right to protection and security. It grants that the teaching
of martial exclusions to rape damages a married women’s entitlement to
protection by driving her to go into a physical or sexual relationship without her
will. And this is illegal.
In the case of Vishakha V The State of Rajasthan 12, the supreme court widened
the perspective of Right to Privacy in surrounding working areas. In due course,
by decriminalizing martial rape, the marriage exceptions damage the right to
privacy of a married women and which is illegal and unlawful.

iii. Right to bodily self – determination.

The advantage to notable self-reliance can also go under the jurisdiction of the
Article 21rather than of the fact that the constitution does not definite remember it.
The concept of right to self-reliance depends on the thought that the individual is
absolute chief in matters observantly connected to their body.
Physical relationship is a project amongst every single decision that a woman
carries for herself.
In the case of Sree Kumar vs Pearly Karun13, the High Court of Kerala seen that
the offense committed under Section 376A of Indian Penal Code, cannot be
dragged in as the spouse is not living independently with her husband under the
statement of separation, anyhow of the possibility that she is culpable to sex by
her with her husband without her consent.
For this condition the spouse was subjected to drive into a sexual relationship
without wanting it by her husband even when she went to stay with her husband

9
1992 AIR 392, 1991 SCR Supl. (2) 146
10
1975 AIR 1378, 1975 SCR (3) 946
11
1963 AIR 1295, 1964 SCR (1) 332
12
(1997) 6 SCC 241
13
1999 (2) ALT Cri 77, II (1999) DMC 174
 for 2 days as an outcome of partition process which was going ahead between the
two parties. Later the spouse was held not culpable of raping his wife however he
had as such.

4. THE ARGUMENT OF “INDIAN CULTURE” AND GOVERNMENT’S STAND

In the year 2018, it was put before the bench which was hearing the case, under the
then Chief Justice Gita Mittal, that whenever there is a relationship of sexual relation
between spouses, in the absence of consent of one of them, it itself will be an offence
under Indian Penal Code, and the aggrieved woman has all rights to refuse to such act
as she is entitled to her rights of bodily integrity and privacy provided under Section
21 of the Indian Constitution.
Going against to this, the Government, through an affidavit filled, gave reason of not
making marital rape a criminal offence. They stated that, making it a criminal offence
may lead to a phenomenon that might “destabilize the institution of marriage and an
easy tool for harassing the husbands.”
In India 95% (approx.) of rapes are committed by the person victim knows and 38%
(approx..) women are molested by their life partner.

i. The “Indian Culture" Argument

It will never be possible to make any law which may criminalize marital rape in India
as making such laws will seriously hamper the religious and cultural values of the
Indian Society. This is because, in this society, marriage is seen as a sacrament. And
making any law against it will seriously damage this institution. This was the
Government’s stand against making marital law a criminal offence.
10th March, while responding to a question in Rajya Sabha, Menaka Gandhi the
women and child Development Minister stated:
“It is considered that the concept of marital rape, as internationally, cannot be
suitable in Indian context because of several factors like; education, poverty,
illiteracy, social customs and values, religious beliefs, mindsets of the people of the
society to consider marriage as a sacrament and many more”.14

14
‘Concept of marital rape can’t be applied in Indian context’: Maneka Gandhi’ (The Indian Express, 11 March
2016) < [Link]
context/> accessed 10 March 2022
Every time when a politician or some other individual or groups of people gives the
Indian Culture context to the argument against criminalizing Marital rape, they are
indicating that their male dominancy or patriarchy and their possession over the
female body is more often important, than the sexual violence performed within the
structures that they are claiming to hold dearly.
There is an ultimate need of gradual legislations in keeping with the national and
international bodies, especially with the gender-based violence, to exclude the
violence of the right to bodily autonomy under the aspect of culture and religion.

We should also keep this in our minds that India is also the party to international
conventions like CEDAW, that encompasses Marital rape as a crime, therefore
making some certain obligations towards the acceptance of its provisions.
In our country, marriage is considered to be a pure relationship of trust and consent,
between the two individuals, by considering the argument that marital rape can injure
the foundation of marriage, one is performing marital rape, which is ultimately a form
of sexual harassment.
The Indian governments stand look on the offence of marital rape is a deject. The
union government in 2017 surrender that decriminalizing marital rape in India would
“injuring the institution of marriage” as well as determining to be a “tool to harass
husband”, therefore both the arguments are initiated on sexism and misogyny,
fundamentally saying that the false idea of the institution of marriage is more
important than the mental and physical abuse along with the lack of right to bodily
autonomy faced by a girl or women.
One may cite the “Report of the Delhi commission 2014” declared that 53.2% of the
rapes reported in 2012-2013 were false. The reality behind the statistics lays in the
fact that the cases that were dropped before taking to the trail are often considered as
“false accusations” without getting to the investigation into reason behind them , this
make apparent the indifference towards some practices such as bribing ,
blackmailing , coercion that goes behind the scenes , which causes the women to drop
the case, however in the very end those who are true victims of these case should not
be left to go through this pain due to the malevolence of few.
 ii. The Current Case of RIT Foundation v. Union of India and other connected
matters15
Bench: Rajiv Shakdher and C Hari Shankar, JJ
The constitutionality of the Indian Penal Code’s ‘marital rape’ privilege was
challenged in the Delhi High Court which is under consideration. The case has
focused attention on critical issues including as consent, the level of governmental
control over female sexual autonomy, and the need to remedy legal historical
injustices.
Four petitions are being heard by a bench of two – judges comprising of Justice Rajiv
Shakder and C Hari Shankar. The bench is hearing a challenge to the exception of
Section 375 of the Indian Penal Code which talks about rape. The petitioner includes
the All India Democratic Women’s Association.16
This Section of the Indian Penal Code defines what is rape and what all constitutes
and comes under the ambit of rape. But the concern here is of the exception
mentioned, which says sexual intercourse or sexual assault by a man with his wife,
when wife not under the age of 15, is not rape.
Through this exception, directly or indirectly, the sanction has been provided to the
“husband” to do intercourse with or without the consent of the wife. This exception
provides this marital right to him. This provision in the IPC, as an exception,
undermines the rights and what the consent of the wife is on her marital status.
 Various assumptions have been there for this status and immunity to marital
rape. But mainly two presumptions have been made regarding this:
 There are these assumptions that after marriage a wife’s consent is all with her
husband which has a lasting till forever. This consent can’t be taken back. Looking
back in time, this idea of perpetuity had its roots in the colonial era when it was
strongly believed and practiced that a woman is the property of her husband.
 The second thinking is that after marriage the wife is now duty bound to satisfy all the
sexual needs and desires of her husband as is seen that the sole motive behind a
marriage is giving birth to a new life. It also seen that marriage leads to husband
having lots of sexual expectations from the wife and it is something that the wife has
no rights to deny.
 Arguments in Court:

15
WRIT PETITION (C) NO. 284/2015
16
WRIT PETITION (C) NO. 6024/2017
  It has been possible to challenge the status of marital rape in the Court of Law
because of the 2017 ruling of the Supreme Court- the Aadhar Case, where
Right to Privacy got its final form and was laid down as a Fundamental Right.
Standing against the rights of equality, of life with dignity, individuality, and
of sexual and personal autonomy – which are all covered under the ambit of
Articles 14, 19 and 21 of the Indian Constitution.
 It has also been put by the petitioners that not providing immunity to marital
rape is unconstitutional. They argued that it has already been held by the
Supreme Court that consent can be withdrawn anytime between in the
marriage. So, providing the “consent in perpetuity” is invalid legally. There
are always “reasonable expectations to sex” provided and this immunity
overrides this.
 Going against these arguments, the Government defended the position of
marital rape. Their stand concerned with the safeguard of men from any kind
of improper or wrong use of the law by the wife putting man under danger.
These arguments went till the protection of the “institution of marriage.”
5. VICTIM’S BATTLE FOR JUSTICE

A government minister recently agitates a debate where he told the parliament that
marital rape cannot be criminalized in India because “marriages are sacrosanct”. Speaking
in favor of it, they say making a law dealing with marital rape will break down the
institution of marriage and give birth to unwanted problems for men.

But they turn a blind eye towards what is actually happening in reality. They are unaware
and don’t want to accept what females are experiencing in their married life. What they
actually coping with is soo much darker than can be imagined.

Some of the self-experiences of some females have been mentioned.

Rashmi (no real name) was siting for an interview shoot by the media regarding what has
happened with her. She was covering all her face with the cloth so as to hide herself from
being identified by the people who knew her. She said if her landlord sees this and finds
that it was her, he will kick her out of the house.

This 24-year-old lady is fighting her battle alone for justice. She begins by saying how
she is just an object of fun and pleasure for her husband. He would do it to her all the
time. When they fought, he would take her to bed and rape her. He took out all of his
anger there. He would not spare her. Many times, she pleaded not to do it but he would
not leave her, even during her periods.

In another real – life case, a middle-class woman, educated and independent, named
Payal, married to a successful lawyer. But what is the point of such education, when he
always hits her and puts objects inside her forcefully while having sex.

She tried running away from him and take divorce, but in vain. Her parents did not
support her in her decision. But after he stating physically abusing her children, she got
the real strength to walk out of this hell. But after consulting her lawyer, she was asked
not to mention rape while filling for divorce.

It is not only her story. It has been found by the National Family Health Survey, more
than 80,000 women that they have interviewed, more than 93% (approx.) have been
abused sexually, either by their currently husband or the one they were married to before.
Even in the reports found later no improvements were seen.

6. ANALYSIS AND CONCLUSION

There are several views of the opposition for not making marital rape a valid crime.
These defenses are soo conservative and deep rooted in the old mentality that it has
become difficult to pull people out of it and convince them.

But this is not the case in other states of the world. Many countries have removed this
immunity of marital rape and made it a serious criminal offence. It was on 5 th July, 1993
that the USA made marital rape a serious crime in all the 50 states. Canada removed the
provision which safeguarded marital rape in 1983. In 1993, South Africa criminalized it.
They reversed the common law principle that said:

As per the Section 5 of Prevention of Family Violence Act 1993, it should not be held
that Husband is guilty of raping his wife. It provided, “Notwithstanding anything to the
contrary contained in any law or in the common law, a husband may be convicted of the
rape of his wife.”

In India, it was in the 42 nd Law Commission Report (1972) which was of the suggestion
that it is necessary to criminalize marital rape, though no actions were taken as the report
(84th) of 1980 was not in its favor.
 No significant changes and developments were done till the year 2012. But as a result of
the Delhi gang rape case, there was constitution of the Justice Verna Committee.
Recommendations were made for the amendments to the Criminal Law. The report was
submitted on January 23, 2013 and as far as marital rape was considered following points
were suggested:

“The IPC differentiates between rape within marriage and outside marriage. Under the
IPC sexual intercourse without consent is prohibited. However, an exception to the
offence of rape exists in relation to un-consented sexual intercourse by a husband upon a
wife. The Committee recommended that the exception to marital rape should be
removed. Marriage should not be considered as an irrevocable consent to sexual acts.
Therefore, with regard to an inquiry about whether the complainant consented to the
sexual activity, the relationship between the victim and the accused should not be
relevant.”

Following were the recommendations of the committee:

a. There should be removal of the exception for Marital Rape

b. There should be specification of law that:
 It is not valid to take the defense of marriage or other relationship when
the crime is of rape or sexual violations.
 It is not necessary to know or take into account the kind of relationship the
victims and the accused shared while considering a crime of sexual nature.
 It is not a justification for announcing a lower sentence of rape that the
accused and victim were married or in some other intimate relationship.

Though the committee has made these recommendations but no concrete steps or initiatives
have been taken to work in this direction and safeguard the women from such heinous crime.

The ever-lasting exceptions and defense pointers for marital rape to put into the purview of
crime has left the women as a property of her husband.

Woman has been and remains to be a victim of men and society. Hence the need to recognise
her as a human being, to move away from the antiquated concept of her being a simple
property, and to treat her with the respect and dignity she deserves, is extreme now. Marriage
has been perceived by patriarchal power systems to be a permission to legalise reluctant sex.
There is a complete denial of a woman's self-worth.