MARITAL RAPE
Marital Rape is non-consensual sexual intercourse without one spouses consent for it. It is
regarded by many that marriage itself provides the consent but it is a criminal offence in
many countries. But India has yet to criminalize this and it is one of 36 countries which
supports it through its laws.
In 1736 Sir Matthew Hale said, “The husband cannot be guilty of rape committed by himself
upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath
given herself up in this kind into her husband which she cannot retract”1
With changing times this motion came to an end was abolished. Marriage came to be treated
as partnership between two individuals.
Lord Keith declared, “marriage is in modern times regarded as a partnership of equals, and no
longer one in which the wife must be subservient chattel of the husband”2
The European Convention gave a statement that in case of rape the relationship between them
is irrelevant. A statutory was given in recognition in Criminal justice and Public order Act
1994.3
South Africa also criminalised marital rape in 1993 which objected the common law principle
that a husband is not guilty of raping his wife.
Section 5 of Prevention of Family Violence Act 1993 provides: “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”.
According to Justice Brennan of Australian High Court “The common law fiction has always
been offensive to human dignity and incompatible with the legal status of a wife”.4
Section 56(1) South African criminal law it is not a valid defence that the martial relationship
between them can act as a shield in case of rape. India is one of the 36th countries which has
yet to criminalize marital rape.
1
Sir Matthew Hale, History of pleas of the crow, Hale PC (1736) 629, S Friedman, women and the law (Oxford
University Press,(1997) pp 55-57
2
CR v. United Kingdom, App No. 20190/92: IHRL 2595 (ECHR 1995); see Palmer Feminist Legal Studies Vol V
no1 [1997] pp 1-7
3
R.S.C 1985, c. C-46
4
Her Majesty The Queen v. JA,2011 Sec 28: (2011) 2 SCR 40 para 64.
Section 375 exception 2 states “Sexual intercourse or sexual acts by a man with his own wife
with his own wife, the wife not being 18 years, is not rape”.5
Past Policy: In 2013, an Amendment was made which recognised the rape of omen between
12 and 15 years of age as punishable.
Present Policy: In 2017, an Amendment was made which recognised the rape of women loss
than 18 years of age as punishable.
But none of the policies helped the women stopping them from getting raped by their
husbands. It is believed by the Indian government that criminalising marital rape can de-
stabilise the institute of marriage.
Section 375 exception 2 violates the provision of constitute like Article 14 and Article 21.
Article 14 guarantees equal protection of rights to all citizens. Article 14 states that any
differentiation can be done in grounds of intelligible differentia 6 along with rational Nexus.7
But here an unmarried women and a married women both are having non-consensual sex
though in that latter there might be a relationship between, but still it is a crime.
The Section 375 Exception 2 also violates Article 21 which provide the most fundamental
right for existence i.e., right to life and personal liberty. Article 21 is not solely the animal
existence it includes right to dignity and privacy for every individual which also includes a
women.
The exception 2 which allows the husbands to forcefully rape their wives effects the mental
and physical health of the victim which is also a part of Article 21 to protect the health of an
individual.
MS Jaising said, “when the criminal laws were amended in 2013, I had sought to make it an
offence if a separated husband forced himself on his wife under section 376(B) of IPC.
Thought that was a victory, but it doesn’t take care of the women who are not separated.”
Report on domestic violence in 2015 at NGO Sneha's crisis counselling centre in Dharavi, out
of 664 cases 159 were marital rape cases. It is pathetic that some women doesn’t even that is
wrong.
5
Indian Kanoon
6
Intelligible differentia means difference capable of being understood.
7
Rational Nexus means the logical relation b/w an action and effect; which is understandable by a prudent
man.
Cases are not registered even in the police stations regarding this matter. Though women
come forward they may register a case under 998A which states, “whoever, being the
husband or relative of the husband of a women subjects such women to cruelty shall be
punished with imprisonment for a term which may extend to three years and shall also be
liable to fine”.
Since there’s no law condemning them doing it the victims are being increased in a large
number. So the judiciary and government putting in mind the well-being and state of women
should being forth a policy that is criminalising marital rape with severe sanctions.