MARITAL RAPE AND LEGAL PROTECTION LAWS in reference

to the case INDEPENDENT THOUGHT V UOI,2017

A DISSERTATION SUBMITTED TO AMITY UNIVERSITY NOIDA

IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE
DEGREE OF BCOM LLB(H)

SUBMITTED BY:

RITIKA GAUR

ROLL NO. A11921615011

UNDER THE SUPERVISION OF

Mr. ASHWANI PANT

AMITY LAW SCHOOL, NOIDA

AMITY LAW SCHOOL, NOIDA

BLOCK - I, SECTOR 125, NOIDA

 AMITY UNIVERSITY, UTTAR PRADESH

YEAR – 2019

DECLARATION

I declare that the assignment entitled “Marital rape and legal protection
laws in reference to the case INDEPENDENT THOUGHT V UOI, is the
outcome of my work conducted under the supervision of Mr. Ashwani
Pant, Amity Law School, Noida at Amity Law School, Noida, Amity
University, Uttar Pradesh.

I further declare that to the best of my knowledge the assignment does not
contain any part of my work, which have been submitted for the award of
any degree either in this University or in any other University / Deemed
University without proper citation.

Name of Student:

Ritika Gaur

(A11921615011)

Dated: 19th OCTOBER 2019

CERTIFICATE OF THE SUPERVISOR

This is to certify that the research work entitled “Marital rape and legal
protection laws in reference to the case INDEPENDENT THOUGHT
V UOI” under work done by RITIKA GAUR (A11921615011) under my
guidance and supervision for the Partial Fulfilment of the requirement of
BCOM LLB (H) degree of Amity Law School, Noida, Amity University,
Uttar Pradesh.

To the best of my knowledge and belief the assignment:

(i) embodies the work of the candidate herself;

(ii) has been duly completed; and

(iii) is up to the standard both in respect of contents and language for

being referred to the examiner.

Additional Director Name of Faculty Supervisor;

Mr. Aditya Tomar Mr. Ashwani Pant

Amity Law School, Noida

ACKNOWLEDGEMENT
I would like to express profound gratitude to my Faculty Supervisor Mr.
Ashwani Pant, Amity Law School, Noida, for his invaluable support,
encouragement, supervision and useful suggestions throughout this
research work. His moral support and continuous guidance enabled me to
complete my work successfully. His intellectual thrust and blessings
motivated me to work rigorously on this study. In fact this study could not
have seen the light of the day if his contribution had not been available. It
would not be an exaggeration to say that it is his unflinching faith and
unquestionable support that has provided the sustenance necessary to see
it through to its present shape.

I express my sincere thanks to my respected teachers of Amity Law

School, Noida for taking out their precious time and advising me on
various aspects of the study. Among those who have sustained me over
the years with their loyalty and friendship, I would acknowledge my
friends, who have always taken a special interest in my work and
unconditional support at each turn of my life.

I must also thank and express my heartfelt gratitude to the library staff of
Amity Law School, Noida, Indian Law Institute, New Delhi and Faculty
of Law, Delhi University for helping me in carrying out research
necessary for dissertation.
RITIKA GAUR

TABLE OF CONTENTS
SR.NO CONTENTS

1. CHAPTER 1: Introduction
- General
- Marital rape in India and Constitutional

provisions
- Types of marital rape

2. CHAPTER 2: Legal Provisions of India

- Overview
- Justice Verma Report
- Criminal law amendment
- Culture Constraints and Consequences of
Early Marriage
- Current law and Recommendations
3. CHAPTER 3: Case Analysis
Independent thought v. UOI
4. CHAPTER 4 : Conclusion and Suggestions

5. CHAPTER 5: References
 ABSTRACT

Marital rape is characterized as the demonstration of sex with one’s life partner without the
assent of the other companion. It is a type of sexual maltreatment and aggressive behaviour at
home. The Indian culture is too tricky to even think about acknowledging the way that
relationships can be conceivably disharmonious and risky destinations of human association. As
indicated by National Family Health Survey, 2005-06 , right around one in each ten wedded
women matured l5-49 years in India have been compelled to engage in sexual relations with their
significant other without wanting to out of 9% of the women who revealed sexual assault, 94%
endured it on account of their husbands.

Verifiably husbands have been given the privilege to utilize their wives as property that they
claimed. There was no understanding of wife’s assent .Until l983, the Criminal law Amendment
Act, expressed that " Sexual intercourse by a man with his very own better half , the spouse not
being l5 years old , isn't rape." Under the Protection of Women from Domestic Violence Act No.
43, passed in 2005, women in India have the right to claim civil remedies for domestic violence,
but there are no criminal penalties for marital rape where the wife is over 15 years old. The
administration authorities contended that condemning marital rape would debilitate family
esteems as agreement of marriage presumes wifes agree to have sex with her significant other.
The marital rape exploited people needed to take plan of action to Protection of Women From
Domestic Violence Act, 2005 which offered just affable cure. Be that as it may, the present
situation of marital rape changed by the happening to ongoing Supreme Court Judgment in 20l7
which plays an important role.
 CHAPTER-l
INTRODUCTION
GENERAL

Rape is the most outrageous crime in the whole world. It has both physical and psychological
impacts. The dreadful act of treating a women like a chattel, using her body to satisfy one’s
sexual desire without her implicit or consent is not only violating the human rights but also
shameful for the society as whole which was enlightened by Supreme Court in the case The
Chairman, Railway Board v. Chandrima Das1. Section 375 and 376 of Indian Penal Code2
describes the definition of rape. Rape is the word of sexual assault, which usually involves
sexual intercourse or other form of sexual penetration carried out against a person without that
person’s consent. The act maybe carried out by any kind of physical force, coercion, person who
is unable to give consent like unconsciousness etc. Rape can be of many types but if we talk
about one of the type i.e. MARITAL RAPE, story gets really terrible and harsh sometimes. It can
also be known as SPOUSE RAPE.
The meaning of rape continues as before, for example sex or sexual entrance when there is
absence of assent. The Patriarchal framework that India families are constantly considered as
unimportant property. So rape was considered as theft of ladies and wrong against spouse or
guardian. This belief has impacted our legislation in disregarding offence of spouse rape by
giving it shield of wedding right of the spouse and by this they are nonsensely tolerating this
harsh behaviour by own loved ones. There is no reply of her own over her sexuality. They talk
about sexual satisfaction which not only breaks the heart and but it directly infringe the right to
live with human dignity which clearly explained in the case Francis Corallie Muin V Union
Territory of Delhi3 which highlights the Article 21 of the constitution. As per this case Article
21 incorporates the right to live with human dignity. In this way, a fundamental fixing to
demonstrate the wrongdoing of rape is to demonstrate the absence of assent.
The Chairman, Railway Board v. Chandrima Das, (2000) 2 SCC465
2
Indian Penal Code
3
Francis Corallie Muin V Union Territory of Delhi (1981) AIR 746, 1981 SCR (2) 516
This weight to demonstrate the absence of assent frequently lays on the person in question. In
certain occasions, as on account of minors, it is assumed that assent doesn't exist as they are
assumed by law to be unequipped for consenting to such sexual acts.
Then again, there are likewise occurrences when agree is attempted to exist. Frequently, this
assumption exists when the person in question and the culprit is hitched. In such occurrences, the
possibility of marital rape winds up contradictory.

Be that as it may, post l970s and the women's activist transformation, these avocations were no
longer at the front line of the promotion to not condemn marital rape. This was on the grounds
that women were perceived as equivalent natives as men. Rather, more nuanced hypotheses have
turned into the supports. The 'suggested assent' hypothesis is one such legitimization. Here, an
evident assumption of agree is thought to exist when a man and lady enter the foundation of
marriage. Marriage is viewed as a common agreement and agree to sexual exercises is believed
to be the characterizing component of this agreement. The fourth support, which is the latest, is
that criminal law must not meddle in the marital connections between the couple. It is a private
circle which the law must not infiltrate into. Through the course of this paper, we will set up why
these defences are not well-founded and thusly propose a model for the criminalisation of marital
rape in India.
In numerous purviews over the world, including India, marital rape isn't perceived as a
wrongdoing by law and society. In any event, when nations perceive rape as a wrongdoing and
recommend punishments for the equivalent, they excluded the utilization of that law when a
marital relationship exists among injured individual and culprit. This is frequently called the
'marital rape special case proviso'. Over these purviews, there are four significant supports
progressed for not condemning marital rape. The underlying two avocations are not utilized in
present day setting because of headways made concerning sexual orientation correspondence.
The main defence originated from the comprehension of the spouse as subservient to her better
half. Women were asset to their husbands, and this implied women didn't have any rights in the
marriage.
4
Protection of women from Domestic Violence Act, 2005

In Bodhisattwa Gautam v. Subhra Chakraborty5 court held that rape is to a lesser degree a
sexual offense than a demonstration of hostility gone for corrupting and mortifying the ladies. In
this manner the marital exception principle is violative of spouse's entitlement to live with
human dignity. Any law which damages ladies's entitlement to live with dignity and gives spouse
appropriate to drive wife to have sexual intersourse without her will is along these lines
unlawful.
It would not be conceivable to comprehend a spouse assaulting his better half since the husband
was the ace to the wife, and delighted in benefits over her body. Alongside this legitimization,
the solidarities hypothesis likewise existed. This hypothesis laid on the possibility that after
marriage, the personality of the lady converged with that of her significant other. Thusly, law
didn't give the wedded lady a character autonomous of her better half. This is connected to the
past support as far as taking a gander at women as property of the spouse.
Be that as it may, by Exception 2 to Sec 375, if a young lady kid somewhere in the range of l5
and l8 years old is hitched, her better half can have non-consensual sex with her, without being
punished under the IPC, simply because she is hitched to him and for no other explanation. The
privilege of such a young lady kid to substantial trustworthiness and to decrease to have sex with
her significant other has been statutorily removed and non-consensual sex with her better half
isn't an offense under the IPC. The arrangement is violative of privileges of youngsters and
Article l4, l5 and 2l of the Constitution of India. Indeed, even today, the possibility of spousal
rape in marriage is a peculiarity. It is accepted that on the off chance that the young lady has
agreed for marriage, at that point she has naturally assented for having sex with her significant
other at his will. The vast majority of the rape cases go unreported in India because of assortment
of reasons. As appeared by the most recent National Family Health Survey, husbands submit
most of the demonstrations of sexual brutality in India. out of the all out number of rapes
answered to NFHS6 (National Family Health Survey), 97.7% were submitted by life partners
of the person in question. Sexual assent is the privilege of each lady whether wedded or
unmarried as that of men. In the event that the sex is without assent, the equivalent ought to be
punished paying little mind to the relationship of the culprit to the person in question. This
judgment is a milestone judgment in the field of checking youngster marriage and henceforth
marital rape.
5
Bodhisattwa Gautum V Subhra Chakraborty, 1996 AIR 2002
6
NFHS – National Family Health Survey, 2018
The arrangement is in opposing to Section 5 (Aggravated and penetrative sexual assault) and
6 of the Protection of children from sexual offences7 (POSCO) Act, it expresses that if the
spouse of a young lady kid submits penetrative rape on his better half, he really submits bothered
penetrative rape as characterized in Sec. 5(n) of the POSCO Act and is culpable under Sec 6 by
thorough detainment of at the very least 1o years and may stretch out to detainment forever and
fine.
At long last the Court saw that the arrangement is subjective and violative of youngster rights
and Art l4, l5 and 2l of the Constitution. It was likewise seen as in contradiction to the
arrangements of POSCO Act, which will beat different laws. At that point the Court brought an
amicable translation of the two arrangements and held that "Sex or sexual acts by a man with
his very own significant other, the spouse not being under l8 years old, isn't rape".

Constitutional provision are violated in the course of such offences like marital rape. Each
citizen has responsibility towards society and state.
Article 21 of Indian Constitution describes Right to Life. Every time an issue on human rights
pops-up, right to life comes to play the integral role in that scenario. Article 21 guarantees every
citizen a right to a healthy a decent life without any kind of enforcement from the state or any
other party. Once the right is violated the person who is suffering can approach the court to seek
constitutional remedies against the violation under article 32 of the Indian constitution.

In Francis Corallie Muin v. Union Territory of Delhi, As per this case Article 21 incorporates
the right to live with human dignity and all that accompanies it, to be specific, the minimum
essentials of life, for example, adequate nutrition, clothing and shelter over the head and facilities
for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and
mingling with fellow human beings. The right to live with human dignity is a standout amongst
the most fundamental component of the right to life which perceives the independence of a
person.

7
POSCO – Protection of Children from Sexual Offences, 2012

The Supreme Court has held in a catena of cases that the offense of rape abuses the right to life
and the right to live with human dignity of the victim of the crime of rape. One such example
is The Chairman, Railway Board v. Chandrima Das. The Supreme Court has observed that
rape is not merely an offence under the Indian Penal Code, but is a crime against the society as
whole. In Bodhisattwa Gautam v. Subhra Chakraborty court held that rape is to a lesser
degree a sexual offense than a demonstration of hostility gone for corrupting and mortifying the
ladies. In this manner the marital exception principle is violative of spouse's entitlement to live
with human dignity. Any law which damages ladies' entitlement to live with dignity and gives
spouse appropriate to drive wife to have sexual intercourse without her will is along these lines
unlawful.

Right to sexual privacy

Right to privacy is not actually mentioned in the Indian Constitution.
Kharak Singh v. State of U.P.8; Govind v. State of Madhya Pradesh9; Neera Mathur v.
LIC1o etc., the Supreme Court has perceived that a right to privacy is intrinsically ensured under
extent of Article 21. The Right of Privacy under Article 21 incorporates a right to be allowed to
sit unbothered and not aggravated. Any type of intense sex damages the right of protection,
sexual security. It is presented that the teaching of marital exclusion to rape damages a wedded
lady's entitlement to protection by driving her to go into a sexual relationship without wanting to.

In the case of State of Maharashtra v. Madhkar Narayan11 the Supreme Court has held that
every woman is entitled to her sexual privacy and it is not open to for any and every person to
violate her privacy as and whenever he wished. In the landmark case of Vishakha v. State of
Rajasthan12 the Supreme Court extended this right of privacy in working environments also.
Further, along a similar line we can translate that there exists a right of privacy to go into a
sexual relationship even inside a marriage. Subsequently by decriminalizing rape inside a
marriage, the marital exception teaching damages this right of privacy of a wedded lady and is
consequently is illegal.

8
Kharak Singh v. State of U.P
9
Govind v. State of M.P.
1o
Neeru Mathur v. LIC
11
State of Maharashtra v Madhkar Narayan
12
Vishakha v State of Rajasthan
Right To Bodily Self- Determination
The privilege to substantial self-assurance can likewise go under the ambit of Article 21 in spite
of the fact that the Constitution does not explicitly remember it, such a correct exists in the
bigger system of the right to life and personal liberty. The idea of right of self-assurance depends
on the conviction that the individual is a definitive chief in matters intently connected with
her/his body or prosperity and the more private the decision, the more vigorous is the privilege of
the person. The will be the main creators of his own destiny which decides his reality. Sexual
relationship is a standout amongst the most individual decision that a lady holds for herself.
Decisions identified with sex is a type of self-expression and self-assurance. On the off chance
that the law tries to take away the privilege of communicating and repudiating such assent
certainly denies a lady her protected right of real self-assurance. In this way, it is presented that
the marital exclusion principle successfully denies a wedded lady her entitlement to substantial
to self-assurance and meddles in her most individual decision making.

The threats of early marriage were contemplated. It was held that early marriage can
antagonistically influence the wellbeing of the young lady youngster, training hindered and
financial independence limited. Early marriage additionally expands the danger of HIV
contamination. Neo-natal passing’s are one of the aftereffects of early marriage. Criminalization
of marital rape by this judgment will be a representative beginning without a doubt. The move is
relied upon to go far in demoralizing the act of youngster marriage in India. This judgment has
been announced to be imminent in nature meaning consequently that the indictment for an
offense of marital rape of a young lady youngster must be started after the date of the judgment.
Subsequently the law as it stands presently is that, despite assent, sex with a minor young lady
would comprise the offense of rape under Section 375 of the IPC.
TYPES OF MARITAL RAPE

The three sorts of marital rape that are commonly predominant in our general public are as per
the following:

a. Battering Rape – In this kind of rape, women in their marital relationship are battered during
the sexual brutality act and then again they need to confront the physical viciousness after the
rape. Greater part of marital rape exploited people fall under this classification.

b. Power just rape- In this sort of rape, just that measure of power is utilized by the spouse of
the wife which is important to pressure them into the sex .Battering is definitely not a normal for
such
sort of rape. This kind of attack happens when the spouse won't have sex.

c. Fanatical rape – In this sort of rape, torment and unreasonable sexual acts happens which are
physically oppressive.

d. Force only rape- husbands use only the amount of force necessary to coerce their wives:
battering mat not be characteristic of these relationship of these relationship. The assaults are
typically after the women has refused sexual intercourse.
e. Obsessive rape – other women experience has been labelled as sadistic or obsessive rape;
these assaults involve torture and perverse sexual acts and are often physically violent.
 CHAPTER-2
LEGAL PROVISIONS IN INDIA

The Indian Penal Code (IPC) is an inheritance of the British Raj that was brought into power in
l86o to solidify different correctional resolutions that were common then because of the decent
variety of the country. The IPC depended on the pervasive traditions and standards as it existed
back then. Be that as it may, it has neglected to stay aware of the advancement of society that has
brought about certain old and socially despicable arrangements utilized till date. Segment 375 of
IPC6 characterizes "rape". It gives that a man is said to submit rape on the off chance that he has
sex with a lady under the seven conditions referenced in the segment. Among the seven
depictions is the sex against the desire of the lady is rape. This is known as statutory rape.

Be that as it may, Exception 2 to area 375 of the IPC gives that it isn't rape if a man has sex with
a young lady who is over l5 years old and is his significant other. Henceforth, it isn't rape under
IPC paying little respect to her readiness or assent. In this way, Section 375 of the IPC
accommodates three conditions specifically:

In the first place, sex with a young lady beneath l8 years old is rape (statutory rape),

Second, by method for a special case, sex with young lady somewhere in the range of l5 and l8
years old isn't rape. Her readiness/assent is insignificant.

Third, sex with a young lady over l8 years old is rape on the off chance that it falls under the
seven conditions of segment 375 of the IPC. From these three circumstances plainly the spouse
of a young lady kid between l5 to l8 years old has full freedom to have non-consensual sex with
his significant other without the dread of being rebuffed for rape under the IPC.
Law commission of India 42nd Report13, this report by the law commission prescribed that
criminal risk ought to join to the spouse for sex with his minor wife.

In any case, this suggestion was dismissed expressing that a spouse can't be rebuffed for
assaulting his own significant other as sex is a piece of marriage which the wife agrees to during
the marriage. Anyway when this report was distributed in June l97l then women had plan of
action to segment 376-B of Indian Penal Code, which made sex with one’s possess spouse
without her assent under an announcement of legal partition was made deserving of up to 2 to 7
years of detainment. The National Charter for Children, 2oo3 was informed on ninth February,
2004. Condition ll peruses: "The State and network will guarantee that violations and
abominations submitted against the young lady kid, including youngster marriage, oppressive
works on, constraining young ladies into prostitution and dealing are rapidly annihilated.’ Apart
from the abovementioned, the initial move towards controlling the act of kid marriage in India
was the death of the Prohibition of Child Marriage Act, 2oo6 (PCMA) 14 yet no comparing
change was made in Section 375 of the IPC. Segment 3 of the PCMA gives that a kid marriage is
voidable at the alternative of both of the gatherings to the youngster marriage.

Subsequently, according to this demonstration, youngster marriage is voidable however not void.
Another significant rule went in such manner was the Protection of Children from Sexual
offenses Act, 2ol2(POSCO). The Preamble to the POSCO Act expresses that "the law ought to
work in the way that the wellbeing and prosperity of the youngster are viewed as being of
principal significance at each stage, to guarantee the solid, physical , enthusiastic , scholarly and
social improvement of a kid" Article l6.2 of The Convention on Elimination of All Forms of
Discrimination against Women (CEDAW) 8 to which India turned into a signatory on 3oth July,
l98o, gives "the assurance to be wedded and the marriage of a kid will have no lawful impact,
and all important activity including enactment, will be taken to indicate a base age for marriage
and to make the enlistment of relationships in an official library obligatory. The Criminal
Amendment Act, 2ol3 fulfils a portion of the suggestion1 of the Law Commission of India l72nd.
Justice Verma Committee Report15
113
Law commission of India 42nd Report
14
Prohibition of Child Marriage Act, 2006 (PCMA)
15
Justice Verma Committee Report, 2013
Justice J.S Verma, former chief justice of the Supreme Court, was constituted to recommend
amendments to the criminal law. The main objective is to provide quicker trial and also enhance
punishment for criminals accused of committing sexual assault against women. The committee
submitted their report on January 23rd, 2013. The report made recommendations on laws related
to rape, sexual harassment, trafficking, child sexual abuse, medical examination of victims,
police, and educational reforms.
The committee stated that rape and sexual assault are not merely crimes of passion but an
expression of power. Committee recommended;-

 Rape should be retained as a separate offence and also it should not be limited to
penetration of the vagina, mouth or anus. Any non-consensual penetration of a sexual
nature should be included in the definition of rape.
 Exception given under IPC to marital rape should be removed. Marriage should be
considered as an irrevocable consent to sexual acts.
 Non-penetration forms of sexual contact should be regarded as sexual assault. The
offence of sexual assault should be defined so as to include all forms of non-consensual
non penetrative touching of a sexual nature. Offence should be punishable with 5years on
imprisonment.
 Verbal sexual assault, use of words and gestures to insult a women modesty punishable
under section 5o9 of IPC with 1 year of imprisonment.
 Committee opined that the offence acid attack, should not be clubbed under the provision
of grievous hurt.
 The juvenile and women protective homes should be placed under the legal guardianship
of high court and steps should be taken to reintegrate the victims into society.
Considering this, the Criminal law Amendment Bill, 20l216 ('Amendment Bill, 2ol2') was
drafted. In this Bill, the word 'rape' was supplanted with 'rape' trying to broaden its degree yet the
Bill didn't contain any arrangement to condemn marital rape. The Amendment Bill, 20l2 didn't
consider the recommendations set down in the J.S. Verma Report. The Parliament Standing
Committee on Home Affairs in its l67th Report ('Standing Committee Report') surveyed this
Amendment Bill, 20l2 and furthermore sorted out open counsels. Here, it was recommended that
section 375 must be reasonably corrected to erase the special case condition. In any case, the
Standing Committee would not acknowledge this suggestion. The Standing Committee Report
contended that, first, in the event that they did as such, the "whole family framework will be
under more prominent pressure and the advisory group may maybe be accomplishing more
unfairness".

The second manages the elective cures that as of now exist for a lady to look for plan of action
through, inside the family and in the law itself, for example, section 498A of the IPC, the
Protection of Women from Domestic Violence Act, 2005 ('PWDVA, 2005') and different other
individual laws managing marriage and separation. This is utilized to implement the possibility
that criminalisation isn't significant in light of the fact that women have existing recourses along
these lines lessening the direness of the promotion to condemn marital rape. The third is focussed
upon the social qualities in India, accentuating how these qualities should hamper us from
condemning marital rape.

Criminal Law Amendment Bill 2013:

The Criminal Law (Amendment) Bill, 2013, more popularly called the Anti-Rape Bill, is now
law. The Act came into force on 3rd April, 2013 following the outrage of the entire nation behind
the homicidal gang rape that took place in New Delhi on the night of 16th December 2012. The
protest in the Delhi after the barbarous Rape Incident indicated the whole of India, the enormity
as well as the seriousness for an immediate reform in Rape Laws.
This incident generated huge international coverage and was condemned by the United Nations
Entity for Gender Equality and the Empowerment of Women, who called up the Government of
India and Delhi “to do everything in their power to take up radical reforms and the like to make
women’s lives safer and secure”.

16
Criminal Law Amendment Bill, 2012
Further, by expansion of Section 376A, 376B, 376C and 376D, rape laws were made
progressively stringent. Adolescent Justice (Care and Protection) of Children Act, 2ol5 likewise
expresses "a kid who is at inevitable danger of marriage before accomplishing the period of
marriage and whose parent’s relatives, watchman and some other individual are probably going
to be answerable for solemnization of such marriage" In 2ol3, Justice Verma Committee
expressed in its report that the Exception under Sec 375 of the IPC should be cancelled right
away. Indeed, even Cruelty under 498A of IPC just limits its area to Mental and Physical
maltreatment, the frequencies of Sexual Abuse will in general go unpunished. This was a
significant proposal made by any board of trustee’s on marital rape laws in India. The exception
condition to Section 375 encroaches the Fundamental Rights cherished in our Constitution. For
example, Article l49 accommodates equity under the watchful eye of law and equivalent
assurance of law inside the domain of India and precludes segregation on ground of sex, religion,
spot of birth or any of them. Yet, the exception under Section 375 separates a spouse with
regards to marital rape and incapacitates the State to make unique arrangements under Article l5
for the improvement of women and kids.

So also, Article 2l ensures right to individual life and freedom. Anyway the exclusion proviso
removes the individual freedom of a lady to have her state in the marital connection. Such
dwelling together winds up unethical as well as unlawful. Key obligations under Article 5l
additionally expresses that it is the obligation of each resident to decry rehearses that our critical
to the respect of women. In Bodhisatwa Gautam versus Shubra Chakraborty, the Supreme
Court held "rape is a wrongdoing against essential human rights and an infringement of the
victim’s most loved of crucial rights, to be specific, the privilege to life revered in Article 2l of
the Constitution.

The law Commission of India in its l72ndl4 Report on Review of Rape laws that was submitted
in March 2ooo had not prescribed criminalization of marital rape. The Parliamentary Standing
Committee on Home Affairs likewise displayed its l67th Report on the Criminal Amendment
Bill, 2ol2 in Rajya Sabha in March 2ol3. In England, as indicated by Sir Mathew Hale, Chief
Justice of England, "the spouse can't be liable of rape submitted without anyone else's input upon
his legal wife, for by their common wedding assent and agreement , the wife hath given herself
in kind unto the husband ,whom she can't withdraw." Hence, the laws in England offered a flat
out insusceptibility on the husband in regard of his significant other, exclusively based on their
marital relationship. This view was changed when the idea of marital rape was first time talked
about in the investigative court of England in R versus Clarence.

In spite of the fact that the respondent was vindicated of the rape charge yet the case turned into
a point of reference for the wives to shield themselves from non consensual sex instead of Sir
Mathew Hales articulation. later in R versus R,it was held that the marital rape exception gave to
husbands is nonsensical and that "the fiction of suggested assent had no valuable reason to serve
today in the law of rape". As an outcome, R’s offer was rejected and he was sentenced for rape.
This case denoted the start of criminalization of rape laws in England. In New York Court of
Appeal, in People versus liberta it was expressed that "a state apparently has no enthusiasm for
ensuring marital protection or advancing marital compromise where a marriage includes
aggressive behavior at home and where the marriage has rotted to a point where the sexual
relations of the life partners are never again consensual and sexual maltreatment has happened."
Some of the significant perceptions made in this decision are:

Not detailing of spousal rape can likewise prompt breakdown of marriage. A marital rape
unfortunate casualty is mentally more damaged than a more interesting rape injured individual.
The sheltered and defensive condition that marriage guarantees isn't given in such cases. The
feeling of trust deficiency, confinement and dread felt by a rape unfortunate casualty, whenever
compelled to proceed with the state of affairs, can prompt the breakdown of the whole family,
Just on the grounds that numerous wrongdoings without witnesses are hard to demonstrate and
are time taking yet this is no purpose behind making a wrongdoing "unprosecutable", labeling all
wives as possibly malignant is additionally not right and supported by no proof. Indeed, even in
India, Section 498A which condemns settlement and mercilessness as ("unreasonable sexual
direct") has been weakened because of cases that it is utilized as a badgering instrument by
malevolent wives."
Subsequently, by this Judgment of the Supreme Court which has expelled the Exemption Clause
given to husbands , it has guaranteed that women rights are secured and women have equivalent
state in marriage as men who can't use them as their claimed property.

CULTURAL CONSTRAINTS AND CONSEQUENCES OF EARLY MARRIAGE

Marriage has been, since old occasions, one of the most significant social foundations in all
social orders. In India, marriage is viewed as a holy occasion in an individual’s life. In India, for
each individual who has a little girl, offering their little girl when they arrive at the eligible age is
viewed as one of the strict obligations. Wearing garments that incited the men or venturing
outside after nightfall are the reasons considered answerable for wrongdoings against women.
Subsequently, it’s the women who have been accused. This view is to a degree adjusted after the
judgment. Under the Hindu Marriage Act 17, l955 certain conditions are set down for a substantial
marriage under Section 5 and 7.

Thus, under the Muslim law marriage is viewed as an agreement. A Muslim who is of sound
personality and achieved pubescence is able to wed. The Special Marriage Act, l954, is intended
for any individual in India and Indian nationals abroad, regardless of the confidence that the
individual may declare. The Section 4(a) of the Act has arrangements indistinguishable from the
Section 5(ii) of Hindu Marriage Act as conditions for solemnizing marriage. So also, Section 27
records indistinguishable arrangements in regard to ground for separate as in Section l3 of the
Hindu Marriage Act. Marital rape isn't just horrible yet in addition prompts a ton of physical and
mental harm too. It corrupts and mortifies the person in question and leaves her powerless.

17
Hindu Marriage Act, 195
Constrained marriage and youngster relationships are particularly pervasive in our general
public. A constrained marriage is one in which both the companions wed each other without their
free assent though a youngster marriage is one in which both or any of the gatherings to the
marriage is underneath l8 years old. These kinds of relationships are related with higher pace of
aggressive behavior at home including marital rape.

In numerous nations, the idea of marital rape isn't perceived and is something to be managed
secretly. This conviction remains constant in India moreover. The Minister of State for Home
Affairs Haribhai Parthibhai Chaudhary once said in April 2ol5 "The idea of marital rape, as saw
universally, can't be reasonably applied in the Indian setting because of different variables,
including levels of training, ignorance, neediness horde social traditions and qualities, strict
convictions and the mentality of the general public to regard the marriage as holy observance"
The Bible at l Corinthians likewise expresses" The spouse doesn't have authority over her own
body, yet the husband does. Furthermore, similarly the spouse doesn't have authority over his
very own body, yet the wife does. Try not to deny each other aside from with assent for a period
that you may offer yourselves to fasting and supplication; and meet up again so Satan doesn't
entice you due to your absence of discretion." The religion of Christianity instructs that having
sexual relations with somebody other than the life partner is infidelity which is a wrongdoing
though sex inside marriage is an obligation. This makes marital rape an inconceivability. Be that
as it may, the evil impacts of marital rape can't be overlooked.

Here are a few impacts a marital rape unfortunate casualty may need to live with
 Anxiety, sadness and stress prompting suicide.
 Various real wounds to vaginal territories including wounding.
 Miscarriage, bladder diseases, STDs and fruitlessness
 Long enduring impacts like sleep deprivation, dietary problems, sexual brokenness, and
negative mental self-portrait
CURRENT LAWS AND RECOMMENDATIONS

The judgment has condemned marital rape yet there is likewise the need to sharpen general
society (regular citizens, police, judges, restorative faculty) on the significance of assent,
convenient medicinal consideration and recovery, ability advancement and work for encouraging
financial autonomy of unfortunate casualties. The individual rights shouldn't be yielded at the
special raised area of protection and both the accomplices are to be dealt with similarly then just
endurance of a sound marriage as an establishment is conceivable. In a nation which has
numerous confusions of rape, profoundly established social and strict generalizations,
criminalization of marital rape by the Supreme Court will go far in checking the evil act of kid
marriage predominant in the public arena.

As a marriage doesn't blossom with sex and the dread of tedious suit and other cultural
limitations ought not prevent the injured individual from recording an objection against the
spouse. Women so far have had plan of action just to segment 498-An of the IPC, managing
cold-bloodedness, to ensure themselves against "unreasonable sexual direct by the spouse. In any
case, presently with this judgment, marital rape has been announced illicit and subsequently the
assurance of women rights has been all around perceived. Around the globe, marital rape and
different types of rapes are regular events. In any case, it is seen that because of deficient,
conflicting and not efficiently authorized laws, such violations are advanced. Sex based brutality,
including sexual savagery are being dispensed on young ladies and women in huge extents.

Portion of the proposals that can check sexual savagery including marital rape are as per the
following:
 Laws enabling the culprit to walk free on arriving at some type of settlement including
wedding the unfortunate casualty must be cancelled considering the mental and physical
harm that is done on the person in question.
 Certain laws even neglect to perceive the way that circumstances of outrageous reliance
and weakness in light needs to tolerate the negative impact of the marital rape.
  Certain laws require observer confirmation and excessively oppressive proof to
demonstrate for a charge of marital rape. This requires a correction to change the
stringent laws.
 Laws that expressly grant rape in marriage like that in Afghanistan should be revoked.
 All such laws that hinder indictment of rape should be altered.

 Amending postulations laws will send a solid message that marital rape and any type of
sexual savagery against women won't go on without serious consequences and in the
event that they happen they will be indicted as a genuine wrongdoing by a capable court
to the full degree of law.

As said by the UN "Teaching young men and men to see women as significant accomplices
throughout everyday life, in the advancement of society and the fulfilment of harmony are
similarly as significant as making legitimate strides secure women’s human right’s. This
progression will likewise go far in checking marital rape cases.
For this situation, Independent Thought v. Association of India, the solicitor was Independent
idea, an enrolled society which has been working in the welfare of kid rights, and the
respondents were the Union of India and National Commission for Women. Section 375 of IPC
characterizes rape and has likewise an arrangement managing the period of consensual sex as l8.
Special case 2 to Section 375 says that a spouse can have non-consensual sex with her significant
other who is somewhere in the range of l5 and l8 years old. The issue raised under the watchful
eye of the pinnacle court was to choose the lawfulness and dependability of Exception 2 to
Section 375 of IPC.

The division seat of the Supreme Court gave agreeing feelings to choose the case in the support
of applicant. It read down the Exception 2 to Section 375 of IPC and cleared that anything in the
judgment will not be contemplated with the issue of "marital rape".

The discussion of marital rape is urgent in building up substantive uniformity for wedded women
who are generally consigned in broad daylight and legitimate talk to the limits of their home. It is
urgent to perceive this is a significant lacuna in criminal law at present vanquishing the
established arrangements that award women balance and self-sufficiency. As we have
persistently delineated, there have been solid political, legitimate and social contentions against
criminalisation. We have painstakingly examined the legitimacy of these contentions which are
covered with thoughts of the family, marriage and the job of women in the public eye. We have
built up how every one of the contentions against criminalisation don't have any lawful standing.
We have contended that the exclusion provision in section 375 of the IPC as it stands today, is
illegal. This is on the grounds that it bombs the uniformity test as given in Article l4. What's
more, we have portrayed how there are no successful options in law, and further that our
spotlight ought not be on choices yet rather on condemning it.

We additionally brought out how our way of life not being tolerating towards marital rape isn't
motivation to not condemn it. Considering the majority of this, we propose a model to condemn
marital rape. Initially, we recommend that the exemption condition be erased. Second, we
suggest that it be explicitly featured that the relationship of a couple between the blamed and the
lady won't be a safeguard. Third, we suggest that the condemning arrangement be the equivalent.
Fourth, we propose for specific alterations in the Evidence Act to guarantee that it considers the
complexities of arraignment in instances of marital rape.
 CHAPTER-3
CASE ANALYSIS

Independent Thought v. Union of India 2o17

Synopsis:
In the year 2o13, a child rights organisation Independent Thought filed a petition in Supreme
Court of India challenging the constitutional validity of exception 2 of Section 375, Indian Penal
Code.
The petition was filed under Article 32, of the Indian Constitution.
Section 375, of the penal code states that sexual act with a girl under 18yrs of age is deemed to
be rape. But according to exception 2 of the section the husband of a girl between 15 to 18years
of age can have non-consensual sexual intercourse with her and it would not amount to rape,
because he is the husband of the woman. The right to deny to sexual intercourse has been
statutorily taken away from the girl and moreover such an act by the husband is not punishable
under the penal code.
This exception is also in contravention to Article 14, 15, and 21 of the Indian Constitution.
The exception is also contradiction Section 5 & 6 of the POSCO Act.
Section 5 of the POSCO acts states if the husband of a girl child commits penetrative sexual
assault on his wife, he actually commits aggravated penetrative sexual assault as defined in Sec.
5(n) and section 6 talks about punishment of such an offence.
The court found the exception to be arbitrary and in contradiction of article 14, 15, and 21.

Issues:
Whether exception 2 of Section 375, of the IPC relating to girls between the age of 15 to 18years
should be struck down to be in contradiction of Article 14, 15, and 21 or not.
Arguments:
In support of Petitioners:
1. The exception is absolutely arbitrary and in violation of article 14, 15, and 21 of the
constitution. Absolutely nothing is achieved by allowing the husband to have non-
consensual sexual intercourse with his wife between the age of 15- 18 years.
2. Exception places girls at great advantage which is contrary to vision of article 15.
3. Exception regarding girls of 15 to 18years of age is absolutely in violation of human
rights.
4. The statute gives absolute liberty to the husband to have non- consensual sexual
intercourse with his wife.
5. Law commission of India in its 84th report had stated that since marrying a girl under the
age of 18years of age is an offence therefore, having sexual intercourse with as girl under
the age of 18 years should also be an offence.

In support of Respondents:
1. Child marriages are voidable and not void. Therefore, it is essential to keep the exception
regarding 15 to 18years of age to protect the husband from getting penalised for offences.
2. By virtue of getting married, the girl has expressly or by necessary implication has
consented to sexual intercourse with her husband.
3. Child marriages are a tradition in different parts of our country and such traditions must
be respected.
4. Exception 2 makes sure that if a marriage is solemnized at the age of 15years due to
traditions, it should not be a reason to book the husband for offence of rape.
5. 167th report of parliamentary standing committee of the Rajya Sabha recorded that many
members felt that the concept of marital rape has the potential of destroying the
institution of marriage.
Judgement:
The judges while giving the judgement considered several points, such as:
1. National charter for children, 2003, recognised child marriage as a crime. Every person
below 18 years of age is considered to be a child. POSCO Act, 2012 states that law
should act in a manner that the best interest of the child is protected.
2. Woman’s right to privacy, dignity, bodily integrity, and right to reproductive choices
must be respected.

After considering the whole matter in detail, the judges came to the conclusion that the exception
2 of Section 375 is liable to be struck down on the following grounds:
1. Exception 2 is arbitrary and violative of child rights and not just, and therefore in
violation of Article 14, 15 and 21 of the Indian Constitution.
2. The exception 2 is inconsistent with POSCO.

It was also clearly stated that for rape of wives under the age of 18 years Section 198(6) of the
Code would be applicable and cognizance shall only be taken in accordance with Section 198(6)
of the Code.

Conclusion:
According to me, I support striking down of the exception number 2, as mentioned in Section
375, of the Code, because it was an immunity for the husband for having non- consensual sexual
intercourse with his wife. Even if she has married to her husband which might mean that she has
agreed expressly or in an implied manner that she would be consenting to sexual intercourse, but
if does not want to do it with her husband at any point of time she has the liberty to say no.
Whereas, in the case of exception number 2 of Section 375, being in the picture, the whole idea
of giving a girl her liberty is being taken away from her and the girls would feel that they’re
supposed to be oppressed by their husbands and act in accordance with their husbands and that
they are not allowed to give in their input regarding anything. Therefore, calling exception to be
arbitrary and in contradiction to articles 14, 15, and 21 is absolutely correct.

18
Suchita Srivastava v. Chandigarh Administration; State of Maharashtra v. Madhukar Narayan Mardikar;
Devika Biswas v. Union of India.
 CHAPTER 4
CONCLUSION AND SUGGESTIONS

Law presumes that in a marriage, the wife has consented to be subordinate to her husband’s
wishes including sexual intercourse which she cannot resist or defy. She is treated as a chattel by
her husband. Legislators need to be rationale and expedite in order to stop this atrocity named
marital rape. If there is no legal provision, it will be impossible to curb this menace. Victims feel
helpless and can only turn to Judicial system as the last resort. The Judicial system, in our
country has certain leeway, which can be utilized to label marital rape as a crime liable for severe
punishment.
It is need of the hour to create specific legal provisions to curb this outrageous conduct of
husbands against their wives. Marital rape is a menace and the victims are hapless women who
have no place or door to knock upon for seeking justice and protection. In such times, she can
only approach the venerated doors of the Apex court or the other courts in the hierarchy and
Judiciary is the last resort for her. Judiciary in our country has certain leeway and they can lay
down the guidelines for the legislature but it cannot on its own accord make laws or implement
them for the benefit of the married women.

But Judiciary is not a law making body; this is the duty of the legislature. Judiciary can only
review the law, but cannot create new provisions; it can only guide legislature to a certain extent
but cannot command or direct them with precision. It can work as a torchbearer but not lead in
the making and drafting of legal provisions.

Hence, it becomes mandatory for the legislature and the law commission of India to consider the
changing reality, draft legal provisions with due diligence w.r.t. marital rape and safeguard
hapless married women from forced sexual atrocities of their husbands. Also, as the citizens, it is
our duty to criticize and condemn men who exhibit such behavior against their spouses and not
shun afflicted women in the name of family or societal prestige and honor.
Independent Thought case has made a significant move to secure the young lady youngster by
condemning the sex with a spouse underneath l8 years. Be that as it may, the Supreme Court had
not set out any extraordinary arrangement for managing such situations where the enthusiasm of
other youngster is likewise in question. It didn't consider those situations where the spouse is
additionally a minor and would be as honest as the young lady if have consensual sex with her.
In India, instances of eloping and marriage are extremely common, the Apex Court's numbness
towards such cases since they can be summed up under the kid marriage arguments is against the
enthusiasm of the kid. The Court additionally attempted to not remark on "marital rape" issue
where the young lady is over l8 years by underscoring that "marital rape" isn't the issue under the
steady gaze of the court and judgment ought not to be seen at all for the issue of "marital rape".
The thinking court applied for presuming that Exception 2 is in violation of Fundamental Rights
was similarly pertinent to a young lady over l8 years of age whose privilege to respect is harmed
by the compelling sexual connection.

Indeed, even today, the possibility of spousal rape in marriage is a peculiarity. It is accepted that
on the off chance that the young lady has agreed for marriage, at that point she has naturally
assented for having sex with her significant other at his will. The vast majority of the rape cases
go unreported in India because of assortment of reasons. As appeared by the most recent
National Family Health Survey, husbands submit most of the demonstrations of sexual brutality
in India. Out of the all number of rapes answered to NFHS, 97.7% were submitted by life
partners of the person in question. Sexual assent is the privilege of each lady whether wedded or
unmarried as that of men. In the event that the sex is without assent, the equivalent ought to be
punished paying little mind to the relationship of the culprit to the person in question. This
judgment is a milestone judgment in the field of checking youngster marriage and henceforth
marital rape.
Right to Equality enshrined in Article 14 of the Indian Constitution will be rendered as dead
letter if women of our country will be unsafe in their own body, possess no right over their body
and will have negligible option of exercising her own choices in matters where sexual relation in
a marital bond in concern Criminalization Of Marital Rape.
Apart from the above made concluding observations the following submissions may be adduced
separately in the areas of laws and their enforcement, and role of Government and society-
Following are the suggestions to prevent marital rape:

 The first important thing is to create awareness about sex education in the society.
 Various loop-holes or even the services in the legislations must be plucked sooner than
later.
 She should not be mistreated by her own husband.
 Strict legal provisions should be made to prevent such activities inside the house.
 Women as a wife should know about their rights. They should come forward and speak
up about any sexual abuse conducted with them.
 Law enforcing machinery must be trained appropriately about the legal provisions and
adequately equipped to face the eventuality.
 A system should be developed and make some comfortable environment for women so
that they do not have to suffer in the name of marriage.
 Government must take a serious action towards any kind of rape activity. No means no
even if she is a wife. Husband cannot have sex without her consent.
 The NGO - government association should be made stronger and more NGOs should be
brought into the project.
 There must be special penal provisions for punishing the officials involved in the
enforcement of related laws.
 All the Pending Bill should be passed
 Awareness programs should be conducted in the society to make the people aware of the
plight of the victims and reality behind their entry into this trap. By this, society will
change its thinking approach and will not stigmatize them.