CRIMINALISATION OF MARITAL RAPE IN INDIA: A NEED OF

THE HOUR

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB

[ESTABLISHED UNDER THE PUNJAB ACT NO. 12 OF 2006]

PROJECT REPORT

SUBMITTED TO RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB

IN PARTIAL FULFILLMENT OF THE REQUIREMENT FOR

BA.LLB (HONS.), FIVE YEAR INTEGRATED COURSE,

TENTH SEMESTER

2023

SUPERVISED BY: SUBMITTED BY:

PROF DR. IVNEET WALIA CHAITANYA TRIVEDI

ASSOT. PROFESSOR OF LAW ROLL NO. 18012

RGNUL,PUNJAB TENTH SEMESTER

 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB

[Established under the Punjab Act No. 12 of 2006]

Dr. IVNEET WALIA Date: 28/03/2023

Associate Professor of Law Place: Patiala
Rajiv Gandhi National University
of Law,Punjab

SUPERVISOR’S CERTIFICATE

This is to certify that the Project Report entitled: CRIMINALISATION OF

MARITAL RAPE IN INDIA: A NEED OF THE HOUR submitted to Rajiv
Gandhi National University of Law, Punjab in partial fulfillment of the requirement
for BA.LLB (Hons.), Five Year Integrated Course, Tenth Semester, is a research
work carried out by Mr. Chaitanya Trivedi under my supervision and guidance. It
is further certified that no part of this study has been submitted to any university for
the award of any Degree or Diploma, whatsoever.

_ 28/03/2023

Prof. Dr. Ivneet Walia

 RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB

[Established under the Punjab Act No. 12 of 2006]

Date: 28/03/2023

CANDIDATE‟S CERTIFICATE

I, the undersigned, hereby solemnly declare that the Term Paper Entitled:
CRIMINALISATION OF MARITAL RAPE IN INDIA: A NEED OF THE
HOUR submitted to Rajiv Gandhi National University of Law, Punjab in
partial fulfillment of the requirement of the BA.LLB. (Hons.), Five Year
Integrated Course, Tenth Semester is an original and bona fide research work
of mine. I hope that this work will helpful in enhancing the knowledge of
reader and framing of policies in the future course. All the information
declared hereby is true to best of my knowledge.

CHAITANYA TRIVEDI

ROLL NO. 18012

TENTH SEMESTER
 ACKNOWLEDGEMENT
I would like to express my deep and sincere gratitude to my research
supervisor, Dr. Ivneet Walia, Professor of Law, Rajiv Gandhi National
University of Law, Punjab, for giving me the opportunity to do research and
providing invaluable guidance throughout this research. Her dynamism, vision,
sincerity and motivation have deeply inspired me. She has taught me the
methodology to carry out the research and to present the research works as
clearly as possible. It was a great privilege and honor to work and study
under her guidance. I am extremely grateful for what she has offered me. I
would also like to thank her for herfriendship, empathy, and great sense of
humor.

I also convey my sincere thanks to the Dr. Anand Pawar, Vice Chancellor, Rajiv
Gandhi National University of Law, Punjab for providing the opportunity to
work on this important issue and the facilities to research on this topic.

I would also like to acknowledge the help provided by the library staff of Rajiv
Gandhi National University of Law, Punjab in finding the correct and reliable
sources for my research. Also, I remember with thankfulness all the teaching and
non-teaching staff that has helped me in this paper.

Finally, my thanks go to all the people who have supported me to complete the
research workdirectly or indirectly.

Chaitanya Trivedi

18012

Tenth Semester

Criminal Specialization
 TABLE OF CONTENTS

1. INTRODUCTION...................................................................................................................................4

1.1. OVERVIEW OF THE TOPIC.........................................................................................................4

1.2. OBJECT AND PURPOSE OF THE STUDY.................................................................................5

1.3. RESEARCH QUESTIONS.............................................................................................................6

1.4. RESEARCH METHODOLOGY.....................................................................................................6

1.5. RESEARCH GAP............................................................................................................................6

2. RAPE: DEFINITION, PUNISHMENT AND SCOPE UNDER THE INDIAN PENAL CODE...........7

2.1. DEFINITION OF RAPE..................................................................................................................7

2.2. PUNISHMENT FOR RAPE............................................................................................................7

2.3. SCOPE OF THE OFFENCE UNDER IPC.....................................................................................8

2.4. PSYCHO-SOCIO DYNAMICS OF RAPE...................................................................................10

2.5. COMPENSATION TO RAPE VICTIMS.....................................................................................11

3. WINDS OF CHANGE IN PENAL LAWS...........................................................................................14

3.1. THE RAPE THAT CHANGED INDIA........................................................................................14

3.2. THE CRIMINAL LAW AMENDMENT ACT (1983).................................................................15

3.3 THE NIRBHAYA CASE........................................................................................................................16

3.3. RESULTING CHANGES AND THE AMENDMENT ACT 2013..............................................17

4. MARITAL RAPE- A STATUTORY BLINDFOLD............................................................................17

4.1. A SILVER LINING- INDEPENDENT THOUGHT V. UNION OF INDIA...............................18

4.2. MARITAL RAPE OF WOMAN AGED OVER 18 YEARS........................................................19

5. Statistics on Sexual Violence by Spouse...........................................................................................21

5.1 Analysis of counselling records...........................................................................................................22

5.1.1 Profile of women...........................................................................................................................22

5.1.2 Pathway to the crisis intervention department in public hospitals................................................22

5.1.3 Forms of violence..........................................................................................................................23

5.2 Health consequences............................................................................................................................24

5.3 Analysis of medico-legal forms of survivors of rape...........................................................................24

2
5.4 National Family Health Survey(NFHS) Data 2019-21........................................................................25
6. RIT FOUNDATION V. UNION OF INDIA.........................................................................................27

7. INTERNATIONAL SCENARIO WITH REFERENCE TO MARITAL RAPE..............................27

8. CONCLUSION AND SUGGESTIONS................................................................................................30

SOURCES REFERRED/CITED...................................................................................................................32

3
 1. INTRODUCTION

1.1. OVERVIEW OF THE TOPIC

“A murderer kills the body, but the rapist kills the soul.”1 These words of Justice V.R.
Krishna Iyer resonate the grim reality of sexual violence against women in India, especially
‘rape’. According to the NCRB, “the number of registered rape cases in India increased by
873.3% from 2,487 in 1971 to 24,206 in 2011, possibly the largest among all categories of
crime.”2 India registered 31,677 cases of rape in 2021 - an average 86 daily - while nearly 49
cases of crime against women were lodged every single hour, the National Crime Records
Bureau's (NCRB) 'Crime in India 2021' report showed.3 This is just the tip of the iceberg, as
majority of the cases go unreported. Rape is a blatant violation of human rights of an
individual, impinging also on thecongruous fundamental rights enshrined in our Constitution,
such as “Right to Life and Liberty” which includes “Right to Live with Dignity”. It is the
most heinous fallout of gender inequality, and is a symptom of a gender biased and
patriarchal society. It is a demonic and dehumanizing act, which causes not only grave
injuries, but leaves an indelible scar on the mind of the victim, violating her dignity.
However, contrary to the common misconception that it destroys or shatters her or her
family’s honor, it is not so. “It is not horrible because your father and your brother are
dishonored. I reject the notion that my virtue is located in my vagina, just as I reject the
notion that men’s brains are in their genitals.”3

The Indian Women’s movement’s response to the issue of rape goes back to the case of
Mathura, Rameeza Bi, Bhanwari Devi, to the more recent cases of Nirbhaya, Kathua and
Hathras. “These specific accounts not only illustrate the way rape is used as a tool to proclaim
power, but these cases also reveal the myriad ways women have historically vocalized and
exhibited their resistance to sexual violence.” 4 However, unfortunately, till date we do not
have suitable laws or solutions to this crime. Initially what started as an effort by Indian
women’s groups to bring the issue of rape into limelight, gradually it compelled agitation
against the inadequacy of rape laws and a need for more suitable laws which would expedite
and ensure justice. Reconceptualization of rape was required. Women writers, who deliberate
1
Rafiq v State [1980] 4 SCC 262.
2
Incidence of Cognizable Crimes (IPC) Under Different Crime Heads during 1953 to 2011’ <http://ncrb.nic.in>
accessed 26 March 2023.
3
Sohaila Abdulali, ‘I Was Wounded; My Honor Wasn’t’ The New York Times <https://www.nytimes.com>
accessed 26 March 2023.
4
Renae Sullivan, ‘Sexual Violence in India: The History of Indian Women’s Resistance’ McNair Scholars
Research Journal Vol 11 No 1, Article 15 <www.scholarworks.boisestate.education> accessed 26 March 2023.

4
 on this issue through their writings, take upthe narrative of violence against women from the
individual women’s perspective. Whereas malewriter tends to address the issue by focusing
on the community as a whole rather than individual experiences of women. 6 The project
would thus highlight the journey and reform of Indian laws that has come about due to the
vociferous campaigns and resistance movement of Indian women and feminists, post the
1980s.

The RIT Foundation v Union of India5 case was decided on May 2022 by two judges from
the Delhi High Court. Justice Rajiv Shakdher, in his judgment, has held that the marital rape
exception in favour of the husband is violative of the right to equality, right to life, right
against discrimination, and the right to freedom of speech and expression. However, Justice C
Hari Shankar did not agree with Justice Shakdher. Justice Shankar has held that the marital
rape exception is not violative of the Constitution and is based on an intelligible differentia.
Women activists and anti-rape campaigners will have their fingers crossed as the Supreme
Court is all set to examine the constitutional validity of marital rape exception,

1.2. OBJECT AND PURPOSE OF THE STUDY

The main objectives of this very study are:

 To understand the conceptual framework of the law on rape under the Indian Penal
Code,its definition, scope, and punishment.
 To bring forth the psycho-socio dynamics of rape and why it occurs, gender
dominance prevalent in the society and its impact on women.
 To trace the women’s resistance movement, their struggles, and unrelenting efforts to
bring about the winds of change in the form of amended laws and widened
understandingof the discourse and dialogue on rape.
 To analyse the legal standpoint on marital rape.
 To analyse the judicial standpoint on the offence, via landmark case laws and
pronouncements, and understanding the shift in judicial mind-set over the years.
 To understand the experiences of women in their encounters with the machinery of law.
 To identify the lacunae in the law with respect to the issue of marital rape.

5
RIT Foundation v. Union of India, 2022 SCC OnLine Del 1404.

5
1.3. RESEARCH QUESTIONS

The researcher seeks to find the answers to the following pertinent questions through this
study:

1. What is the history of the women’s resistance movement against sexual assault in the
Indian legal scenario?

2. Is sexual gratification the sole cause of rapes? What are other factors (if any)
contributingto occurrences of rape?
3. Whether marital rape is recognized generally, or only for a particular age bracket, as
an offence under IPC?
4. What can be the effects of marital rape in a household?

1.4. RESEARCH METHODOLOGY

I will be taking up the doctrinal method of research, with a critical and descriptive angle to
my project, whereby the generic provisions will be descriptive, while the contemporary issues
willbe analytical and critical. Other sources have also been used such as the internet, RGNUL
remoteaccess, and online articles.

1.5. RESEARCH GAP

The researcher has not dealt in detail with the provisions under IPC, but has rather focussed
on the essence of the provisions, referring to them where required. Due to the vast nature of
the topic, some topics have been left out, such as in-depth legal interpretations of the word
“consent”. The very technical meanings have not been discussed under the project, and the
focus has been more upon the pressing issues at hand. Also, allied and corresponding statues
related to rape, such as POCSO for instance, have not been brought under the limited scope
of the project study, but have been referred to in passing.

6
 2. RAPE: DEFINITION, PUNISHMENT AND SCOPE
UNDER THE INDIAN PENAL CODE

The etymological origins of the word rape are from the Latin word ‘rapio ’, which means ‘to
seize’. In other words, more simply put, it means “the ravishment of a woman, without her
consent, by force, fear or fraud”, or as “carnal knowledge of a woman, by force against her
will”.

2.1. DEFINITION OF RAPE

As per S. 375 of IPC, “A man is said to commit ‘rape’ who has sexual intercourse with a
woman under circumstances falling under any of the following descriptions: against her will;
without herconsent; with her consent, when her consent has been obtained by putting her or
any person in whom she is interested in fear of death or of hurt; with her consent, when the

man knows that he is not her husband, and that her consent is given because she believes that
he is another man to whom she is or believes herself to be lawfully married; with her consent,
when, at the time of giving such consent, by reason Of unsoundness of mind or intoxication
or the administration by him personally or through another of any stupefying or
unwholesome substance, she is unable to understand the nature and consequences of that to
which she gives consent; and with or without her consent, when she is under eighteen years
of age.”6

However, the Code provides for an exception to “marital rape’’, whereby if a wife below
fifteen is raped by her husband, he is not penalized under s. 375. This reinforces the age-old
patriarchal notion that wife is the property of her husband, and that he has sexual rights over
her during the subsistence of the marriage.7

2.2. PUNISHMENT FOR RAPE

Accordingly, section 376 prescribes the punishment for rape. It enumerates a minimum
punishment of either description for 10 years (increased from seven years, by Act 22 of
2018). This can be extended upto life imprisonment, and is also liable to fine. The position
before 2013 was that the punishment was seven years to ten years or life imprisonment. The
Act 13 of 2013 came as a result of the Nirbhaya gang rape. Sub-sec. (3) prescribes
punishment for rape off woman under sixteen years of age, which is rigorous imprisonment
for a term not less than twenty years. This may be extended to life imprisonment which

6
The Indian Penal Code 1860, s375
7
Ibid

7
 means remainder of natural life. This was inserted by the Act 22 of 2018. This Act 22 of 2018
was the result of the Kathua gang rape case, which brought about many changes in the IPC. If
the offender causes death or permanent vegetative state of the woman, then punishment is
severe which&& rigorous imprisonment for minimum twenty years which may extend to life
imprisonment (remaining natural life) or death.

2.2.1. PROBLEMATIC MINIMUM SENTENCE AND THE DEATH PENALTY

Whenever there exists a statutory punishment for which only the maximum possible sentence
is prescribed, there exists discretion with the judge to award a lower sentence. Feminist legal
activists demanded a statutory minimum punishment for this very reason, so that judges
cannot misuse their power of discretion. They often commuted the sentence on superficial
grounds such as ‘good family’ of the rapist, educational qualifications, and even the woman’s
‘virtue’ and history of being sexually active. “Discretion in rape sentencing tended to be
influenced by the patriarchal understanding that rape is primarily an offence against the
family.”8

Feminists find the minimum sentence problematic, as they believe - firstly, from the point of
view of justice that it is against human rights, and secondly, that a harsher punishment
results ina higher acquittal rate because the burden of condemning the accused to such a long
prison term is very high on the judge. Feminists move a step further in principally opposing
the death penaltyfor rapists as it goes against the right to life. It places the power to take the
life of an individual inthe name of women’s safety in the hands of another. Thus, they insist
that “such a draconian punishment for rape also reinforces the patriarchal idea that rape is
a fate worse than death”.They encourage more transformative and reformative solutions to
this problem, going to the root,rather than simply enhancing the punishments which seems to
be an easy way out. Moreover, there is a high risk in condemning men/women of
marginalized communities and castes to the death penalty. This is shown by a study which
states that “74.1% of the prisoners sentenced to death in India are economically vulnerable
according to their occupation and landholding.”9

2.3. SCOPE OF THE OFFENCE UNDER IPC

8
Nivedita Menon, ‘The Gap Between the Feminist Understanding of Sexual Violence and the Law’ The Wire
<www.thewire.in> accessed 26 March 2023
9
Dr. Anup Surendranath, ‘Project 394A, NLU Delhi’ <https://www.project39a.com/dpir> accessed 26 March 2023
11 State of Uttar Pradesh v. Babulnath [1994] 6 SCC 29; Parminder Singh & Ladka Pola v State of Delhi ATR
[2014] SC 1035

8
 The scope of Section 375 has been widened after multiple amendments, and it is now not
limited merely to penile-vaginal penetration Put is also extended to penile-urethra/oral/anal
penetration, and similarly with objects or insertion of Part of a body other than the penis, or
manipulation of any part of a woman’s body to cause penetration, or application of mouth by
man (vaginal/urethral/anal), or making her to do so with him or another man. The penetration
need not be full penetration; it can be the slightest of penetration to attract this section. 11
Therefore, “it is not necessary to prove the completion of sexual intercourse by the
emission of seed.”10 It is also settled law now “that it is not essential that there should be
injuries on her private parts or the hymen should rupture.”11

2.3.1. PRECARIOUS REVISED DEFINITION

For women’s groups and feminists, the dissatisfaction over the amended definition of rape, is
that it includes all varying forms of sexual assault without any gradation and lacks any
categorical differentiation of offences, ranging from the penis touching the vagina, mouth, or
anus, without consent, to forcible penetration. The severity of all these varying degrees of
sexual acts is different, but all of them are susceptible to be punished with the maximum
sentence. This is the reason that feminists argue for the removal of the word “rape” and want
to replace it with “sexual assault” or “criminal sexual conduct’. It should also have graded
punishment accordingto the gravity of the offence. However, the current legal system does
not recognize rape by a woman of a man, and therefore the offence is not gender neutral. A
woman according to the law is “incapable of committing rape, and she can only be charged as
an abettor in a gang rape”.12

The researcher would like to add here, that queer feminists too demanded inclusivity by way
of gender neutrality. They wanted that rapes of men and transgender people should also be
recognized. It should also apply to the offender in cases of clear power situations where the
victim can be coerced or influenced by the one in power. Some feminists propose a downside
to imparting gender neutrality, in the way that complaints of rape by women can be
counteracted with counter-complaints filed by the rapist, saying that it was the complainant
who raped him, and not vice versa. In other cases, “women would be accused of rape in
violent patriarchal family situations, the end result being retention of the gender-specific

10
Ramkripal Shyamlal Charmarkar v State of Madhya Pradesh [2007] 11 SCC 265
11
State of Karnataka v F. Nataraj [2015] 9 SCC 91
12
Priya Patel v State of Madhya Pradesh AIR [2006] SC 2639; Om Prakash v State of Haryana [2015] 2 SCC 84 15
Claire M. Renzetti, Jeffrey L. Edelson & Raquel Kennedy Bergen (eds.), ‘Sourcebook on Violence Against
Women, Sage Publications’ California (2001) page 36

9
 categorization of the victim (woman) and the perpetrator (man).”

2.4. PSYCHO-SOCIO DYNAMICS OF RAPE

The researcher will now inquire into the causes of rape or why rapes occur. The Sourcebook
in Violence Against Women delineates the idea that “violence is a means by which individuals
or groups can maintain or advance their interests.” 13 Patriarchy is a means of consolidation of
social control over women, by inducing fear among them through acts of violence like rape.
The feminist explanation of such acts is the result of male-dominated society and
subordination of women. As suggested by Lee Ellis, “rape is the male response to social
inequality between men and women”14, and is thus an essential tool to control and
domination, and not merely sexual gratification. Societies where hyper-masculinity is
prevalent are less likely to be rape free. It vindicates the will of one gender over other. It also
denies space, rights, and justice.

The next argument is the denial of bodily rights through rape, which is a result of
objectification of women. Michael Kimmel, a sociologist, establishes that a “biologically
privileged body (only in terms of the ability to impregnate, not to bear)” 15 uses force and the
body, to attain power in this power play to attack and violate the gender in question, thereby
denying the bodily and human rights, viewing female sexuality as a commodity, and not an
aspect of existence. This denigrates their value to private property, and “their sexual and
reproductive capacities become the sole qualities that give them value.”16

The biological or physiological explanation of rape seems acceptable to a large extent.

According to the Source book of Violence, rape can be the outcome of pressures of natural
selection on men to reproduce, combined with attempts by females to control the identity of
theirpartners. However, as has been observed, it is not the urge to reproduce that encourages
some men to rape. The urge to gain sexual gratification is more urgent than anything else.”
The other explanation, is directly linked to the question of patriarchal power. Rape amounts
to wresting control over a woman’s desires for another man, or the desire to abstain. Thus, the
purpose of rape is to control a woman’s body against her will. Mala Sen’s Bandit Queen is
a literary text that exemplifies the operation of these factors. In Bandit Queen, Phoolan’s

13
Renzetti, C., Edleson, J., & Bergen, R. (Eds.) (2018). Sourcebook on violence against women. SAGE
Publications, Inc., https://doi.org/10.4135/9781483399591.
14
Lee Ellis, ‘Theories of Rape: Inquiries into the Causes of Sexual Aggression’ Hemisphere Publications New
York (1989) page 14
15
Michael Kimmel, ‘The Gendered Society’ Oxford University Press New York (2004) page 52
16
Diana Russell, ‘Sexual Exploitation’ Sage Publications London (1984) page 56

10
 father marries her off to an old man Puttilal and is the first one to deny her the right over
herself. Thereafter begins a chain of rapes on her body triggered by various motives, but all
of them boil down to controlling the woman’s body and the identity of her partners.”17

There is consensus amongst sociologists and anthropologists about the role of social learning
as a catalyst in rape. This theory is also often called the theory of inter-generational
transmission of violence. Albert Bandura suggests that violence may be inherited from three
primary sources: the family, culture and subculture, and the media.” Psychologists such as
Malamuth, Sockloskie, Koss and Tanaka (1991) have argued that “a hostile home
environment may lay the foundation for the potential to be aggressive towards women,
sexually or physically.”

Shashi Deshpande’s The Binding Vine, a novel that deals with a rape incident of a girl,
Kalpana by her own uncle, portrays the conflict regarding depiction of sexualized violence on
the screen.”18 Real world aggression, we can see has connections with the way media
portrays women in their depictions of rape and sexualized violence. Films where women are
portrayed as willingly raped and the perpetrators going scot-free after the act are likely to
encourage this mythin the minds of society that women desire such treatment.

2.5. COMPENSATION TO RAPE VICTIMS

Section 357 of the Criminal Procedure Code aims at providing compensation to the victims of
crime, yet, despite this, most of the trial courts failed to utilize their power to award
compensation to the victim. The same was highlighted in the 41st report of the Law
Commission. Section 357 was incomplete in itself as it is incapable of taking regard of all the
victims of the crime. Under this section, compensation is only granted when the trial is
concluded. Hence, the legislature intervened and came up with a subsection i.e. Section
357A.

Section 357A requires every State Government in coordination with the Central Government
to prepare a Victim Compensation Scheme. Through this scheme, the victim of a crime or
his/her dependents will be able to claim compensation for their loss/injury. The State has to
create and maintain a fund for providing the said compensation. A victim can get the benefit
of the victim compensation through two ways. Firstly, the court which is hearing the victims’
case can recommend his/her case to the District Legal Service Authority or the State

17
Mala Sen, ‘India’s Bandit Queen: The True Story of Phoolan Devi’ Harper Collins New Delhi (2003)
18
Shashi Deshpande, ‘The Binding Vine’ pages 34-35

11
 Legal Service

Authority for compensation. The authorities will then award compensation to the victim
according to the scheme prevailing in their State. Secondly, Section 357(4) allows the victim
to directly approach the District Legal Service Authority or the State Legal Service Authority
for compensation by making an application to them. This is a very useful provision for
victims of a crime where the offender is not traced or identified as it enables the victims to
get compensation in cases where a trial has not taken place.

This section also empowers the trial court to recommend for compensation under the scheme
in cases where the compensation awarded to the victim under Section 357 is inadequate for
rehabilitation or where the cases end in acquittal or discharge. Under this section, the District
Legal Service Authority or the State Legal Service authority in addition to awarding
compensation to the victim may also provide medical or first aid-benefits, or other interim
relief, as may be required.

With the amendment of 2008, a modern approach towards victimology was taken, that a
victim of crime has the right to be rehabilitated and compensated irrespective of the
successful prosecution and identification of the offender.

2.5.1. CENTRAL VICTIM COMPENSATION SCHEME

In the year 2012, in the case of Nipun Saxena v. Union of India19 the hon’ble Supreme Court
had asked NALSA to constitute a committee to frame the Model Rules for Victim
Compensation for sexual offenses and acid attacks. NALSA accordingly finalized the
‘Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crime’ which
received the SupremeCourt’s approval in 2018. This was a remarkable move since it laid the
foundation for an addendum to an already existing state compensation scheme which is
specially designed for victims of sexual assault and acid attacks. This scheme provides for
both the minimum and maximum quantum of compensation for the offenses listed in the
scheme.

It mandates the police to report the offenses covered under this scheme by sharing the hard
and soft copy of the FIR with the SLSA/DSLA. It also allows SLSA/DLSA to suo moto
initiate preliminary verification of facts for grant of an interim compensation to the victims. It
also provides provisions for instant compensation in deserving cases which may range

19
Nipun Saxena v Union of India [2018] SCC OnLine SC 2772

12
 between Rs.5,000-10,000. It has further increased the minimum compensation quantum for
rape cases as decided by the Central Victim Compensation Fund Scheme Guidelines. The
minimum compensation in rape cases is Rs. 4 lakhs while for gang rape it is Rs. 5 lakhs.20

The scheme is a significant milestone for the development and rehabilitation of female
victims insociety. However, the scheme has only recently come into force, and we are yet to
assess its impact.

20
Sandhya Gupta, ‘Compensation to Rape victims- A critical analysis’ (2019) CCLSNLUJ

13
 3. WINDS OF CHANGE IN PENAL LAWS

Women’s rights movement gained momentum during the 1980s in the aftermath of a highly
criticized Supreme Court ruling, discussed next. It was also contemporaneously, that specific
groups with women’s issues as their focal point were formed, one of the more prominent ones
being the “The Progressive Organisation for Women (POW)”, which was formed in
Hyderabad in 1974. Women of this group were of a Maoist orientation, and this was one such
revolutionary group, that had a manifesto that brought to limelight the sexual oppression of
women.

3.1. THE RAPE THAT CHANGED INDIA

The genesis of the national character of the women’s movement lay in the excesses
committedby the state authorities during the period of emergency from 1975-77, such as the
Central Reserve Police and the State Reserve Police. These excesses brought to light the
curtailment of civil liberties of women, rape of women in police custody, mass rapes during
riots of the untouchables and Muslim women during those riots, and molestation by the CRP
and SRP. One such case of police power being misused to commit such draconian acts was
the case of custodialrape of a girl named Mathura21, which caused a national outcry.

Mathura was an orphaned Adivasi girl. She was 14, maybe 16, when the crime took place.
“But rape knows no boundaries of class or culture.” She was called-in by the police for
questioning in a complaint filed by her brother Gama, that she had been kidnapped by
Ashoka. Mathura was ridiculed and labelled for her being sexually active before marriage, a
label that later invited crude comments from even the court of law. They were about to leave
after making their statements, but two constables Ganpat and Tukaram asked Mathura to wait
inside. What happened next behind closed doors was horrendous and barbaric. Mathura was
raped by the two drunk constables, and molested by another. Meshram gives this vivid
account to Moni Basu, and narrates the whole incident as it unfolded before them. Mathura
was threatened with fatal consequences if she made a sound, so she remained silent. This fact
would later haunt her.

She was very brave and cast aside the stigma of rape in India then, and took her case to Court,
once again, it was a woman lawyer coming to her help who immediately took up her case.
The lower court disbelieved her account and labelled her “a woman of loose morals and easy

21
Tukaram and Anr. v State of Maharashtra [1979] AIR 185

14
 virtue”, and ruled against her. However, a ray of hope shone as the Bombay High Court
reversed the order and sentenced the accused to six years’ imprisonment. This hope was
short-lived, as on appeal to the Highest court of law and justice- the Supreme Court, the
decision was overturned. The court cited the following reasons: “Mathura did not raise an
alarm and had no visible marks or injury on her body, indicating that she did not resist the
advances, and furthermore, because she was used to sex, she might have incited the cops to
have intercourse with her”, thereby rulingout her rape as consensual sex.

WOMEN TAKE CHARGE

Her case was a watershed, both in the social domain, and from a legal perspective. It not only
sparked protests but also sprouted numerous women’s groups, which then unveiled gender-
based violence for what it really is. It galvanized India against sexual violence. “The court
proceedings entered the public realm in 1979 when four Delhi University law professors
wrote an open letter of protest to the chief justice of India.”22 Interestingly, Lotika Sarkar,
who had served on the “Status of Women Committee”, founded the first feminist group
23
against rape, “Forum Against Rape.” The Forum Against Rape (later changed to Forum
Against Oppression of Women) reignited the dying flame of the anguish of millions, when it
came across the open letter in 1980. It galvanized feminist groups throughout the country to
start a campaign for reopening the case, protests to be held on the symbolic day of March 8-
International Women’s day.

3.2. THE CRIMINAL LAW AMENDMENT ACT (1983)

After three years of heated debates in the women’s groups, media and the Law Commission
of India, the parliament passed the Criminal Law Amendment Act (1983). It contained
changes particularly regarding what constituted custodial rape, provision for enhanced
punishments for offences under section 376 (2) IPC and presumption of the absence of
consent in cases booked under section 376 (2) IPC. This was done by bringing in an
amendment in the Indian Evidence Act, section 114A IEA. Thus, in cases of custodial rape,
rape of a pregnant woman, and gang rape, if it is proved that the accused had sexual
intercourse with the woman who is alleged to have been raped, and the question is whether it
was without the consent of the woman, and she states before the court that she did not

22
Upendra Baxi; Vasudha Dhagamwar; Raghunath Kelkar; Lotika Sarkar, ‘An Open Letter to the Chief Justice of
India’ 16 September 1979 <http://pldindia.org/wp-content/uploads/2013/03/Open-Letter-to-CJI-in-the-Mathura-
Rape-Case.pdf > accessed 26 March 2023
23
Vibhuti Patel, ‘In Memoriam: Lotika Sarkar 1923-2013’ <feministsindia.com> accessed 25 March 2023

15
 consent, the court shall presume that she did not consent. One more dimension to the issue of
custodial rape situations is that the examining doctor should also understand that the victim’s
ability to put up resistance against the accuser’s advances is largely dependent on gender-
based power relations. There could be situations where a woman is overpowered and subject
to sexual intercourse without her consent, but is left with no injuries, or few injuries, that
might be seen as evidence of resistance.

3.3 THE NIRBHAYA CASE

So who was Nirbhaya? One could know her as a bubbly, young, and gleaming personality,
oneof New Delhi’s urban inhabitants — a physiotherapy intern, with a job at a call centre. 24
What transpired on a Sunday evening on 16" December, 2012, was beyond human
imagination. She, alongwith a male friend, Awindra Pandey, was looking for a ride home after
having watched a movie, but due to the late hours of the night, they could not find any willing
rickshaw driver to drop them home. In such a dire situation, they desperately believed the
words of a bus driverwho said they would drop them home, and that they had only noble
intentions. Shortly after, an altercation ensued between them, which led to the supposed
‘passengers’ knocking Awindra unconscious, and then taking turns, raping, and sodomizing
“Nirbhaya” with a metal pipe. After two long hours of this ghastly act, they threw the two
naked, unconscious victims off the moving bus on the road for them to die, even trying to run
them over with the bus.

When they were taken to the hospital, Nirbhaya’s condition was way worse than one could
imagine, and she was hanging to life on a thread. Awindra survived with major injuries, but
Nirbhaya could not be saved, and died less than two weeks later in a Singapore hospital, after
an enduring battle for her life.

On May 5, 2017, the 3-judge bench of Dipak Misra, CJ., R. Banumathi and Ashok Bhushan,
JJ. unanimously awarded death sentence to all 4 accused. 25 Putting the last nail in the coffin for
the Nirbhaya death row convicts who were hanged in March 2020, the 3-judge bench of R.
Banumathi, Ashok Bhushan and A.S. Bopanna, JJ., dismissed the plea file by Pawan Kumar
Gupta challenging the rejection of his mercy petition by the President.26

24
Jason Burke, ‘Delhi Rape: How India’s Other Half Lives’ The Guardian September 2013
25
Mukesh v State (NCT of Delhi) [2017] 6 SCC 1
26
Pawan Kumar Gupta v State (NCT of Delhi) [2020] SCC OnLine SC 340

16
 3.3. RESULTING CHANGES AND THE AMENDMENT ACT 2013

The amendments were incorporated, and after receiving assent from the President, became
lawon April 3, 2013. It brought many changes with respect to the severity of the sentences for
rapists (enhanced sentences), life sentence, and even the death penalty, and also strict changes
with regards to acid attacks, stalking, and voyeurism. The need to establish a swifter and
effective method of imparting justice was also felt; therefore fast-track courts were set up.
Police officers had to mandatorily register rape complaints. Moreover, the burden of proof
shifted from the victim to the accused. However, contrary to this bright side of changes, “the
government disregarded feminist requests and Justice Verma Committee recommendations
to lower the age of consent from eighteen, exempted marital rape and military sexual
assaults, and did not recognize sexual violence against women from marginalized
communities as aggravated formsof the crime.”27

4. MARITAL RAPE- A STATUTORY BLINDFOLD

What might seem to a rational person as legislative oversight or blunder, is actually the
intended law laid down by the legislature — it is the exception carved out by the law under
section 375 of IPC, “Exception 2” which reads as, “Sexual intercourse or sexual acts by a
man with his own wife, the wife not being under fifteen years of age, is not rape”. It makes
clear the intention ofthe legislature that they have kept outside the purview of forced
or non-consensual sexualintercourse or sexual acts, a wife who is 15 years and above. But as
per section 375, under the sixth description, it would amount to rape if the woman is below
18 years of age, consent being immaterial. So, if a careful analysis is done, we can see an age
bracket which is left vulnerable tonon-consensual sexual intercourse or acts, and that is the
age bracket of 15 to 18 years of age. So, if a woman being a wife between this age bracket is
subjected to non-consensual sexual intercourse or acts by her husband, it would not amount
to rape. This gives a blanket liberty tothe husband to commit the act with impunity, knowing
well that there would be no consequences of his otherwise inherently criminal act, just
because the law says so.

This exception reinforces the idea that the wife is the chattel of her husband that she is his
property, and that no one apart from him can violate his proprietary interest in her. It is
assumed by the lawmakers, that in the institution of marriage, the wife consents once and for

27
Indrani Bagchi, ‘The Struggle for Women’s Empowerment in India,’ Current History Vol 113 No762 (2014)
page 144
 all, to any kind of sexual advances by her husband, as her body belongs to him his was one of
the reasons why before the 2013 amendment to the rape law, only penile-penetration was
considered as rape, as only a husband had “property rights” over his wife, and therefore,
penile-penetration by other men violated this property right of the husband. The lawmakers
have taken refuge in the argument by saying that it is a step towards preservation of the
matrimonial institution, because of the possibility of false cases of rape by a “wife” against
her “husband” and the procedural difficulties that would be faced.

4.1. A SILVER LINING- INDEPENDENT THOUGHT V. UNION OF INDIA

The Supreme Court of India, on a petition being filed 28, had a re-look into the issue that
whether sexual intercourse between a man and his wife being a girl between 15 to 18 years of
age, is rape or not, as it violates the constitutional, legal, and human rights of such girl who is
in the age bracket of 15 to 18 years. The Supreme Court in the Division Bench judgment
held, that this exception is an unnecessary and artificial one, which goes against Article 14
being arbitrary, and is inherently against the ethos and spirit of Arts. 15(3) & 21. The
Supreme Court was cognizant of the fact that there existed several socio-beneficial
legislations which are protected under Art.15(3) of the Constitution, in the backdrop of which
such a provision in law would not stand, and would fail the test of constitutionality.

The non-consensual sexual intercourse by the husband with his wife who is a girl child,
cannot be justified on the ground that she is married to him, as it violates her human dignity
guaranteed under the Constitution, and also goes against her human rights protected by the
Protection of Human Rights Act, 1993.

Further, there exists an apparent incongruity between Exception 2 to section 375, IPC, and
section 5(n) read with section 6, Protection of Children from Sexual Offences Act, 2012.
Sexual intercourse between a husband and his wife in the age bracket of 15-18 is not rape
under IPC, but constitutes an “aggravated penetrative sexual assault” under POCSO. Also,
section 42A ofPOCSO Act gives overriding effect to POCSO Act which is a special law over
general laws like IPC to the extent of inconsistency between the two laws.

The Supreme Court made out five options which were available, to do away with this
incongruity. It exercised the most viable one, by reading Exception 2 purposively and
harmoniously with POCSO Act and other socio-beneficial legislations for child welfare. The
Court held it to be read as: “Sexual intercourse or sexual acts by a man with his own wife,

28
Independent Thought v Union of India [2017] 10 SCC 800
 the wife not being under eighteen years of age, is not rape.” 29 The Court also forwarded a
caveat thatit is in no way creating a new offence, rather it is only reading it to bring it in
consonance withthe Constitution and POCSO Act. Therefore, the Court held, that keeping in
view the child- friendly statutes and the purpose with which they were enacted, it is pertinent
to hold that sexual intercourse by a husband with his wife being a child between 15 to 18
years of age, would amount to rape.

4.2. MARITAL RAPE OF WOMAN AGED OVER 18 YEARS

No doubt, Independent Thought v. Union of India, was a step forward in the jurisprudence
regarding marital rape in India, however, the case did not deal with the wider issue of
“marital rape” of woman over 18 years of age, because it was not the subject matter in issue
before the Court in the Independent Thought case. It categorically stated, that it cannot by
extension meanin any way, that the pronouncement in this case be construed as to apply to
the wider issue of “marital rape”. The problem which lies in this scenario is the same- bodily
autonomy and human dignity of women. “Sexual coercion with an unwilling partner
constitutes the grossest form of violation of individual’s right to privacy and offends the
integrity of such person, hence calling for violation of Article 21 of the Constitution of
India.”30

We can trace the judicial blindfold to martial rapes to the 1600s, when Sir Mathew Hale,
Chief Justice in England, wrote the following: “A husband cannot be guilty of a rape
committed by himself upon his lawful wife, for by their mutual matrimonial consent and
contract, the wife hath given herself in kind unto the husband, whom she cannot retract.”
Marriage as a ground for defence against rape is a conservative idea that affords protection to
the husband for any kind of sexual intercourse with his wife. The law is clear on the issue that
a decree of restitution of conjugal rights cannot be granted in favour of the husband if he is
forcing the wife to have sexualintercourse with him. But the wife enjoys no protection against
forced sexual intercourse under section 375 which defines rape. So on one hand the court is
denying the husband forced sexual access through a decree of restitution of conjugal rights,
but on the other hand is not penalizing forced sexual intercourse under section 375 due to
the exception therein. There is therefore a clear absurdity in the logic of the lawmakers to
make such a distinction in the two scenarios. There is dire need for clarity in this area.

29
Hale, ‘History of the Pleas of the Crown’ 629 (1778)
30
Anvesha Kumar; Ipsita Mazumdar, ‘Bride and Prejudice- Marital Rape and the Indian Legal Dilemma’ National
Law University Delhi Student Law Journal 2 (2013) pages 12-22
 4.2.1. PROPOSAL FOR REFORM

It is the need of the hour that “marital rape’’ be made punishable. The Fifth Law
Commission31 said that it should be under a separate provision, as it would not technically
fall under the definition of “rape” under section 375. The Ninth Law Commission 32 did not
endorse this view. What is more saddening is that the Fifteenth Law Commission did not
even delve into the issueof criminalizing “marital rape” on the ground that “it may amount to
excessive interference with the marital relationship”.

The JS Verma Committee took note of the exception of marital rape which exists in the
Indian Penal law, stemming from the notion that a wife upon marriage is deemed to have
consented to sexual intercourse with her husband at his whims and caprices, for all times to
come. The committee noted that this view has been withdrawn in England and other major
countries as well,and therefore recommended the following: -

1) “The marital rape exemption should be removed from the IPC

2) The law should specify that: (a) a marital or other relationship between the
perpetrator and the victim is not a valid defence against the crimes of rape or any
other form of sexual violation; (b) the relation between the accused and the
complainant is not relevant to the inquiry into whether the complainant consented to
the sexual activity, and (c) the fact that the accused and victim are married or in
another intimate relationship may not be regarded as a mitigating factor justifying
lower sentence for rape.
3) Marriage should not be regarded as extinguishing the legal right and sexual autonomy
of wife.”33

In light of highly progressive judgments like Joseph Shine v. Union of India, 34 whereby the
courttook notice of the subordinate status ascribed to women in marriage and her status as
chattel, and recognized her “identity, dignity, sexual autonomy and freedom to make
independent choice in matters of sexuality” 35, it is high time that marital rape should also be
penalized, because it would otherwise amount to setting the clock back on the hard-won
rights of women.

31
Fifth Law Commission (39 to 44) 1968.
32
Ninth Law Commission (81 to 87) 1980
33
Government of India, ‘Report of the Committee on Amendments to Criminal Law’ Chapter 3: Rape and Sexual
Assault pages 72-80.
34
[2019] 3 SCC 39.
35
Ibid
5. Statistics on Sexual Violence by Spouse

Violence against women (VAW) has been recognised as a public health issue and a violation of
women's human rights. The 2030 Agenda for Sustainable Development Goals has emphasised
the need to monitor VAW. Yet, there is limited high-quality, actionable data on the prevalence
of VAW due to limited capacities to measure prevalence, lack of resources and the ethical and
methodological challenges in researching VAW.

Asking women about sexual violence by an intimate partner is challenging across cultures.
Global estimates based on Demographic and Health Surveys (DHS) provide some insights into
the prevalence of intimate partner violence. The latest available estimate on intimate partner
violence from the World Health Organization (WHO) is that “globally about 1 in 3 (30%) of
women worldwide have been subjected to either physical and/or sexual intimate partner
violence or non-partner sexual violence in their lifetime”. (WHO, 2021) Further, a multi-
country study found that in 10 countries sexual VAW of age 15–49 years from an intimate
partner varied from 6% to 59%.

In India, the National Family Health Surveys (NFHS) and National Crime Records Bureau
(NCRB) are the only two sources which provide national-level data on VAW. The NCRB data
include only those women and/or their families who have mustered up the courage to register a
police complaint. Additionally, as the law does not recognise sexual violence by husbands, the
reporting of marital rape is almost negligible. A working paper based on a comparison of
NFHS and NCRB data indicated that less than 1% of cases of sexual violence by the husband
are reported to the police.36

The NFHS uses two categories to measure sexual violence:

1. “use of physical force by the husband to have sexual intercourse even when the wife
did not want to”

2. “forcing a woman to perform sexual acts she did not want to”.

A study carried out in urban parts of Southern India reported on several forms of sexual
violence by the husband. These included the use of physical force by the husband for engaging
in “sexually degrading or humiliating acts, using weapons for forcing sex, forcing wife to
engage in sex in absence of privacy, and criticising or humiliating wife for or during sex”.37

36
Gupta A. Reporting and incidence of violence against women in India. Res Inst Compassionate Econ. 2014;30.
https://riceinstitute.org/research/reporting-and-incidence-of-violence-against-women-in-india/. [Google Scholar]
37
Madhivanan P, Krupp K, Reingold A.. Correlates of intimate partner physical violence among young
 The study did not include actions such as “preventing access to contraception and safe
abortion” as forms of violence by the husband, but these have been now recognised as
reproductive coercion, a form of domestic violence. A cross-sectional study in Gujarat and
West Bengal also found underestimation by research studies of sexual violence in marital
relationships. The study concluded that measuring sexual violence with questions focusing
only on forced sex would lead to underestimation. Women were less likely to indicate sexual
contact as coercive if physical violence was not involved.38

5.1 Analysis of counselling records

Most often women first disclose physical, financial, and emotional violence to a counsellor.
Once trust is established, women feel comfortable about sharing their experience of sexual
violence with a counsellor.

5.1.1 Profile of women

At the hospital-based counselling centre, of a total of 1783 women registered during the period
2008–2017, 79.4% (1416) were currently married, 10.4% were separated/widowed or deserted,
and 10.2% were never married. Of the currently married women (1416), 58.5% (828) women
reported experiencing sexual violence from their husbands. The majority of women were young,
with 8% being in the age group of 18–35 years.

5.1.2 Pathway to the crisis intervention department in public hospitals

Forty-one percent (339) of the women were referred to the crisis intervention department by the
health system as they had come to the hospital for treatment of health complaints as a result of
ongoing violence. The health complaints ranged from physical assault reported by 46%,
attempted suicide by 28%, reproductive health complaints by 25% and attempted homicide by
1%.

reproductive-age women in mysore. India. Asia Pac J Public Health. 2014;26(2):169–181. [PMC free article]
[PubMed] [Google Scholar]
38
Deosthali PB, Rege S, Arora S. Women's experiences of marital rape and sexual violence within marriage in
India: evidence from service records. Sex Reprod Health Matters. 2021;29(2):2048455. doi:
10.1080/26410397.2022.2048455. PMID: 35348043; PMCID: PMC8967187.
5.1.3 Forms of violence

The history of violence revealed that 91% of women had been experiencing violence since
marriage. One in four women (25.6%) who were married for less than a year were pregnant
when they reached the crisis intervention department. They reported that they were not using
any form of contraception due to the sexual control exerted by their partners.

Table 1 shows different forms of sexual violence reported by women. Sixty-eight per cent of the
women reported “forced sex,” referring to forced penile penetration and 8% of women reported
that they had experienced “forced anal or oral penetration”. These forced sexual acts would be
recognised as “rape” under Section 375 only if exception 2 to the law were not to exclude
marital rape.

TABLE 1

Forms of sexual violence disclosed to a counsellor

Forms of violence Total number of women

(multiple responses) N = 828 %
Forced sexual intercourse 565 68
Withholding sexual pleasure 260 29
Not allowing women to use any contraceptive 79 10
Forcing her to have children 119 14
Forcing wife to perform sexual acts against her will (e.g. oral sex) 64 8
Sexual advances from other family members 30 4

The analysis of case records also revealed several forms of sexual violence experienced by
women in addition to forced sexual intercourse (Table 1). Twenty-four per cent of women
reported reproductive coercion as the husband refused to use any contraceptive and also
prohibited her use. Four percent of women reported facing sexual violence from the husband’s
relatives.

As seen here, sexual violence within marriage takes various forms that go beyond “forced sexual
intercourse”/marital rape. The partner's refusal to use contraception or allow the woman to use
any form of contraceptive, and forcing the woman to have children, are recognised as
reproductive coercion and a form of sexual violence. Women also complained of being forced
into oral and anal sex against their wishes and having sexual acts forced on them against their
will, as well as acts that they found repulsive. Twenty-nine per cent of women reported
husbands’ withholding of sexual pleasure. Their husbands either had other partners or were
going to sex workers, and the women shared that lack of sexual relations was painful for them
and was difficult to talk about to anyone.

About 92% of women informed about experiencing physical and financial violence
concurrently with ongoing sexual violence. Table 2 presents other forms of violence reported by
women.

TABLE 2

Forms of violence reported by those experiencing sexual violence N = 828 %

Physical 760 92
Emotional 828 100
Financial 759 92

5.2 Health consequences

The impact of ongoing abuse on the physical and mental health of survivors was assessed by
counsellors. Physical health consequences such as injuries were reported by 82% of women
while reproductive health problems like abortion, miscarriage, RTIs, and prolapse of the uterus
were reported by 22% of women. Mental health consequences were reported by 98% of women,
among whom 26% had attempted to end their life while 29.4% reported thoughts of ending life
(suicidal ideation). Other mental health consequences experienced by survivors included
nervousness and tension (72%) and feeling afraid all the time (36%). Forty-eight percent of the
women sought help from police by filing a domestic violence complaint but in all these cases the
police had registered a non-cognisable offence, i.e. an entry in a police diary that does not
warrant any investigation. At present, there is no option for such women to file a criminal
complaint due to “exception 2 in Section 375 of the Indian Penal Code”.

5.3 Analysis of medico-legal forms of survivors of rape

Based on the data from three public hospitals in Mumbai, from 2008 to 2017, of 1664 rape
survivors, at least 18 women reported marital rape and sought medico-legal support.

Profile of women Women reporting marital rape were mostly young. Thirteen were in their
20s, and five were in their 30s. Of the 18 women, 8 were residing with their husbands and 10
 were separated from their husbands due to severe violence. Those currently living with their
husbands were married for a year or two.39

Pathway to hospital Ten women reported directly to the hospital, and police brought in eight.
The women who reported to the hospital directly had been raped in the previous one to five
days. These women suffered injuries and came to the hospital for treatment. One of these
women was pregnant when she had been raped. Of those brought by police, the incident
occurred two to three days back in one case, and two to six months ago in the remainder. As
there were ongoing threats of rape or physical assault or attempts at rape by the husband, the
women wanted to file a case of rape.

Forms of sexual violence and health consequences The forms of marital rape included forced
peno-vaginal and anal intercourse, inserting materials like rods, bottles, chilli powder in the
vagina, forced oral sex, and forcing women to watch pornographic material. Women reported
experiencing physical assault along with sexual violence. Thus, women came to the hospital to
get treatment for vaginal/anal injuries, bruises, and bite marks on the body.

All the women reported experiencing domestic violence including forced sexual intercourse.
Only women separated from their partners had registered domestic violence cases against their
partners that included physical, emotional, and economic abuse. The women who were
separated from their partners said that the husbands had either come to meet them at their
residence on the pretext of asking for forgiveness or meeting the children. They had then raped
them, or assaulted the women on the roads and dragged them home before raping them.

According to the National Crime Records Bureau’s 2020 data, almost all rape offenders in
India (95.6%) are people who are known to the victim. Out of 20,046 reported rape cases,
2,502 were committed by family members, but it is not clear whether these family members
were married to the victim. The data also does not include the unreported cases.

5.4 National Family Health Survey (NFHS) Data 2019-21

As mentioned, NFHS has revealed that sexual and physical violence goes hand in hand thus it
records marital sexual violence under the umbrella of spousal violence. According to the report,
physical violence is the most common type of spousal violence used to force wife into

39
Nanda P, Gautam A, Verma R, et al.. Study on masculinity, intimate partner violence and son preference in India.
New Delhi: 780 International Center for Research on Women; 2014
committing a sexual act. Though the report does account for the dip in the cases, it also
highlights that women’s experiences stayed the same.

Among the reported cases, 45.4% of married women have experienced both physical and sexual
violence, resulting in cuts, injuries, burns, broken bones, and teeth, etc.40

The recent publication by NFHS reveals that spousal sexual violence is still relevant. 82% of
married men were sexually violent to their current wives, as were 13.7% of former husbands.

NFHS has published its data in 5 sets from 1992 to 2021 that too not in an organised manner.
However, the data on spousal sexual violence has only been recorded from 2005.41

The PIL has cited NFHS-4 to counter the argument of the Men’s Welfare Trust (MWT)- who
have intervened in this petition against the criminalisation of marital rape, stating that it will lead
to the lodgement of false cases.

The amicus of the case cited to state “that there will be a deluge of false cases against offending
husbands does not appear to be correct. If the NFHS data is taken into consideration, it
establishes that 9.9 out of 10 cases of sexual assault in India go unreported.

Prachi Nirwan, Defense Attorney at Delhi High Court for this story agreed that once a law is
implemented, there will be cases of misuse. However, “that should not be the sole reason why
you should strike down marital rape laws. [One should] come up with stringent measures in
order to counter it,” she claims.

The amicus of this case (linked to above) also claims that the courts in India are fully equipped
to deal with false cases. “Noticing oddities in certain cases and/or false complaints being lodged
the legislature has not spurred them into removing this clause from the stature,” writes the
amicus in the petition.

With the NFHS5 data highlighting the cases of spousal sexual violence, it is to see whether the
Supreme Court will consider the recent data as it hears the petition on 21st March 2023.

40
http://rchiips.org/nfhs/factsheet_NFHS-5.shtml>accessed on 26 March 2023.
41
Ibid.
6. RIT FOUNDATION V. UNION OF
INDIA A Division Bench of the Delhi High Court, in its judgment in the marital rape case1
regarding the validity of marital rape exception (MRE) in Exception 2 to Section 375 IPC,
18602, delivered a split verdict with both the Judges on the Bench rendering different opinions.
An appeal against the judgment has been filed and listed before the Supreme Court.

Justice Shakdher’s verdict is sound. There can be no rational basis to differentiate between
married and unmarried women. The IPC classifies the crime of rape on the basis of marital
status of the women, namely unmarried, married, and married but separated. This classification
does not have any relation with the object of the statute, that is, to prevent and punish the
offence of rape. A woman does not lose her right to sexual autonomy upon her marriage. Rape is
rape irrespective of the fact that it is perpetrated by the husband on his wife.

The marital rape exception also violates the right to freedom of speech and expression. It
violates the right of married women to say “no” to sexual intercourse. As correctly pointed out
by the petitioner, conjugal rights end where right to bodily integrity begins. A sexual intercourse
between man and woman require consensus ad idem.

Justice Shankar’s verdict is based on the argument that “the marital rape exception is aimed at
preservation of the marital institution, on which the entire bedrock of society rests.” This
argument diverts our attention away from some important questions. Are we trying to preserve
the institution of marriage at all (potentially harmful) costs? Even when the husband has sexual
intercourse with his wife without her consent? If so, is it constitutional to take away the rights of
women to preserve the institution of marriage?

It was also held by Justice Shankar that “the impact on a woman who is raped by her husband
cannot be equated with the impact on a woman raped by a stranger.” Indeed, there can be no
comparison. Being raped by a husband whom she trusted the most will have an unforgettable
emotional impact on her. Moreover, it is beyond doubt that non-consensual sexual intercourse
can never strengthen the institution of marriage.

7. INTERNATIONAL SCENARIO WITH REFERENCE TO MARITAL RAPE

India should end marital impunity, according to the United Nations Committee on the
Elimination of Discrimination Against Women (CEDAW). “Any distinction made on the
 basis of sex which has the effect of preventing… the exercise by women, regardless of their
marital status… of human rights and fundamental freedoms in the…, cultural, civil or any
other field,” according to Article 1 of the CEDAW.42
Violence against women is a violation of their human and fundamental rights, according to
the 59th session of the Commission on Human Rights, held in 2003. The United Nations has
expressed concern about the dangers of laws that allow for marital rape on numerous
occasions. In its annual Progress of the World’s Women report, UN Women urged member
countries to make marital rape a criminal offense. He also chastised various countries’ “marry
your rapist” laws.

7.1 Legal position in Different Countries

In 1932, Poland became the first country to make marital rape illegal. Several Scandinavian
and Communist bloc countries, including Sweden, Norway, and Denmark, as well as the
former Soviet Union and Czechoslovakia, had passed laws making marital rape illegal over
the previous two decades.

In United States researchers estimate that 10% to 14% of married women experience rape in
marriage. When researchers examined the prevalence of different types of rape, they found
that marital rape accounts for approximately 25% of all rapes. Till recently, the general rule
was thata husband could not be convicted of the offence of raping his wife as he is entitled to
have sexualintercourse with his wife, which is implied under the contract
of marriage. In 1993, marital rape became a crime in all fifty States, under at least one
section of the sexual offence codes. The existence of some spousal exemptions in the
majority of States indicates that rape in marriage is still treated as a lesser
crime than other forms of rape.
In 1996, Australia became the first common law country to pass reforms making marital rape
a criminal offense, thanks to the impact of the second wave of feminism in the 1970s. In
Australia a person can apply to a judge or magistrate for an order allowing him/her to marry
ifhe/she has reached the age of 16 years. However by 1991 this law was abolioshed in every
state.43

In New Zealand, a person under 20 years of age but over 16 years old can only marry with

42
United Nations Committee on the Elimination of Discrimination Against Women, 1979.
43
The Australia Marriage Act 1961 with amendments up to Act No 46 of 2006 Part II, 11.
 parental consent. The age of sexual consent for women is also 16 years.65 There is no
exception for marital rape in the Crimes Act, 1961 of New Zealand. It was abolished in
1985.66

The case of R vs. R44 which was heard in the House of Lords in 1991 changed the law to the
extent that it determined that under UK law it was possible for a man to rape his wife. The
courts ruled that, even within a marriage, any non consensual sexual activity is rape. The
common law principle that a marriage contract implied a woman’s consent to all sexual
activities was overturned by the UK House of Lords in 1991.

South Africa has criminalised marital rape. The judicial decisions highlight that the
relationship of husband-wife acted as a mitigating factor in rape cases. With the time, South
Africa came up with the legislative provisions and criminalised marital rape. Moreover,
certain procedural changes were made which favoured women.

The European Parliament Resolution on Violence Against Women of 1986 called for the
criminalization of marital rape, which France, Germany, the Netherlands, Belgium, and
Luxembourg quickly implemented. The spousal rape exception was abolished in Nepal in
2002 after the country’s Supreme Court ruled that it was infringing on constitutional rights to
equal protection and privacy. The statement read, “It is not a reasonable classification of the
law that an act committed against an unmarried girl becomes a crime while the same act
committed against a married woman does not.”

According to the 2011 United Nations Women’s Report, 52 countries have changed their
laws to make marital rape a crime. The remaining countries are those that have made an
exception for marital rape in their rape laws, as well as those that haven’t and can prosecute
their spouse under general rape laws.45

44
R v R [1992] 1 AC 599.
45
https://www.legallyindia.com/blogs/t-sareetha-vs-t-venkata-subbaiah-remembering-a-revolutionary-
decision#:~:text=Justice%20Choudary%20held%20that%20%E2%80%9Ca,at%20the%20heart%20of%20the/ last
accessed on 26 March 2023.
8. CONCLUSION AND SUGGESTIONS

It can be stated that India has the ambition to promote and secure women’s rights by
introducing national laws and become a State Party to international human rights instrument.
But on the other hand, when it comes to married women’s rights within marriage, there is a
pitfall in rape law, which has arisen due to the marital rape exception. The reason why the
marital rape exception exists is deeply rooted and governed by patriarchal social norms in
which the perception is that a husband owns the woman’s sexuality, this due to the woman’s
implicit consent to sexual intercourse when she enters into a marriage.

The reason for retaining the marital rape exception is that the marriage as an institution has a
unique position, which the Indian state wants to safeguard and exclude from external
interference. By interpreting, for example, ministerial statements, it gives a definite view that
rape within the marriage cannot occur and that even if that were the case, it is not possible to
legislate about it due to factors such as e.g. illiteracy, poverty and the risk of the married
women misusing the law. The possibility of changing something that is so deeply rooted
require a hierarchical communication within the Indian legal system where representatives of
government take a position and that the legislator has a will to open up to a different
perspective, i.e. to categorize marital rape as a crime. The marriage as an institution has a
superior position in relation to the married woman’s human rights, which means that the
married woman is denied the right to enjoy the same human rights as the unmarried woman.
Categorizing women on the basis of marital status is artificial and cannot serve as a basis for
whether rape should be seen as a crime or not. The rape law should be in place to identify the
crime and determine the punishment, and thereby protect the woman regardless of marital
status.

The acceptance of any spousal exemption from rape indicates an acceptance of the archaic
understanding that wives are the sexual property of their husbands and the marriage contract
is an entitlement to coerced sex. Moreover, by confining the offence to women, who are not
married to the perpetrator, rape laws become discriminatory and deny equal protection to a
class of persons – married women, on account of their status.

It has been concluded that Indian laws have failed to provide a proper protection to women as
earlier As the women are still treated as the property of husband and he has all the rights to
exploit her and no remedies have been provided. Though a husband's violent and non
consensual act of intercourse may entitle a wife to bring action for criminal assault, the
incorporation of the principal of liability for marital rape in our penal laws is not present.
This prima facie violates Article 14 and 21 of the Indian Constitution. Non-criminalization of
marital rape is the major concern in the Indian legal system. In order to protect the women,
the Judiciary should take initiatives to safeguard them. Married women should be taken
proper care and they should not be subjected to sexual assault or violence. Hence this section
has a very narrow view in dealing with sexual assault and as such till now there is no legal
provision which protects the married women.

The Supreme Court has recognized rape of a minor wife in very loud terms and has delivered
a landmark judgment suggesting the legislative formula to make child marriages void ab
initio. But the major wives have not been able to win the judicial sympathy so as to get
marital rape recognized by the apex judiciary. The narrow and restrictive definition of rape,
which allows for the marital exemption make the definition of rape, a hollow statement,
which provides escape-route for many perpetrators of sexual violence and the quest for
justice remains unquenched.

The resistance to including marital rape as an offence in the existing definition of rape is
rooted in patriarchal values and gender norms that define the “duties” of a wife. The marital
exemption to rape is based on implied consent. The data presented here make a strong case
for recognising marital rape as a crime. Removing marital exemption to rape requires policy
and institutional support and allocation of resources for necessary infrastructure, human
resources, and staff capacity building. The health system can play a critical role in
documenting the present and past incidents of sexual violence and can help the survivor
access care and justice. Whether or not the law recognises an incident of violence as an
offence, the role of health professionals is to provide treatment and refer the survivor to
support services. The police also must follow due process, listen to what the woman says,
record her complaint and help her seek supportive services.
SOURCES REFERRED/CITED

Cases:

A. RIT Foundation v. Union of India, 2022 SCC OnLine Del 1404.

B. Tukaram and Anr. v State of Maharashtra [1979] AIR 185

C. iRafiq iv iState i[1980] i4 iSCC i262
D. Mukesh v State (NCT of Delhi) [2017] 6 SCC 1
E. Pawan Kumar Gupta v State (NCT of Delhi) [2020] SCC OnLine SC 340

F. State of Karnataka v F. Nataraj [2015] 9 SCC 91

G. Joseph Shine v. Union of India, [2019] 3 SCC 39

H. Nipun Saxena v Union of India [2018] SCC OnLine SC 2772

I. Independent Thought v Union of India [2017] 10 SCC

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