Marital rape- An Understanding

ASSIGNMENT SUBMITTED TO THE AMITY LAW SCHOOL

AMITY UNIVERSITY LUCKNOW

FOR THE DEGREE OF

MASTER OF LAW
LL.M (CRIMINAL LAW)
2024-2025

SUBMITTED BY: SUBMITTED TO:

KUNWAR ABHAY PRATAP SINGH DR. JYOTI YADAV
A081104524014
Introduction
India celebrates 70 years of Independence and still women of the nation are neglected and are not truly free and
independent. Rape per se is an offence against women, violating her dignity and self-respect and when it occurs
within four walls of a matrimonial home, it reduces the woman to the status of an object used mainly for sexual
gratification. Marriage is a sacred social institution in India. The most unique aspects of the relationship
between husband and wife are the legal sanctions attached to their sexual relationship. But marriage has now
become a license to rape. How can husband be given the right to rape his wife? Rape is Rape. How can the
institution of marriage be called a sacred one if women suffer physically, mentally and emotionally without any
remedy against it. To answer this, the paper has discussed the concept of marital rape, the existing laws in India,
the judicial cases, the international scenario and need to review marital rape laws.

Marital rape- An Understanding

Marriage is a legally sanctioned contract between a man and woman. The sexual intercourse between husband
and wife is legal. Due to legality of sex, husband gain right over wife which become the sole reason of marital
rape. While the legal definition varies, marital rape can be defined as any unwanted sexual intercourse or
penetration obtained by force, threat of force, or when the wife is unable to consent. In proper perception, the
husband cannot be held guilty of raping his wife on account of presumed matrimonial consent to cohabit.
However, despite the increasing number of cases of marital rapes in our country, marital rape is not defined in
any statute or law. In Indian Constitution, Article 14 talks about Right to Equality but women face infringement
in their right in cases of marital rape.

In India, marital rape exists de facto but not de jure. While in other countries either the legislature has
criminalized marital rape, or the judiciary has played an active role in recognizing it as an offence, in India
however, the judiciary seems to be operating at cross-purposes.

History of the anomaly of marital rape

18th century English law had a set of rules where the wife was considered being dependent on her husband,
incapable of independent existence. Husband and wife were marked as one entity, and all the rights of the wife
(including her sexual rights) were subsumed by those of her husband. Exception 2 of section 375 was a result of
these blanket rules that arose in 18th century English law.

The husband was the master to the wife and enjoyed privileges over her body and could not be fathomed for
raping his wife. Women were treated like chattel by their husbands. In 18th century England, women were
confined to the domestic sphere, and the state ensured that they remained dependent on their male counterparts.
It is strange to presume that this still applies to modern day India in the 21st century where women have become
individualistic and capable of giving assent. Women are no longer dependent. They are independent citizens
under law.

Indian legislation on Rape

The definition of rape codified in Section 375 of the Indian Penal Code [IPC] includes all forms of sexual
assault involving non-consensual intercourse with a woman. However, Exception 2 to Section 375 exempts
unwilling sexual intercourse between a husband and wife over fifteen years of age from Section 375’s definition
of rape and thus immunizes such acts from prosecution. Section 376 of IPC provides punishment for rape.
According to this Section, the rapist should be punished with imprisonment of either description for a term
which shall not be less than 7 years, but which may extend to life or for a term extending up to 10 years and
shall also be liable to fine.

As per Indian Penal Code, the instances where husband can be criminally prosecuted for an offence of marital
rape are as under:

1. When the wife is between 12-15 years of age, offence punishable with imprisonment up to 2 years of
fine, or both.

2. When the wife is below 12 years of age, offence punishable with imprisonment of either description for
a term which shall not be less than 7 years, but which may extend to life or for a term extending up to
10 years and shall also be liable to fine.

3. Rape of a judicially separated wife, offence punishable with imprisonment up to 2 years and fine.

4. Rape of wife of above 15 years in age is not punishable.

Justice Verma Committee report (2013) had recommended removal of exception of marital rape. Fortunately, in
November 2017 a division bench of the Supreme Court of India, in the case of Independent Thought v. Union of
India read down Exception 2 to Section 375, IPC as being violative of Article 14 and 21 of Indian
Constitution.

India is one of the thirty-six countries that still have not criminalized marital rape. The Supreme Court and
various High Courts are currently working on various writ petitions challenging the legality of marital rape.

In the 42nd Report by the Law Commission, it was recommended that criminal liability should be attached to
the intercourse of a man with his minor wife. However, the committee refused the recommendation stating that
husband cannot be guilty of raping his wife of whatever age since sex is a parcel of marriage.

Protection of Women from Domestic Violence Act, 2005 consist of the reasonable civil remedies for the
violence against women which includes marital rape too. Having sexual intercourse without consent can be
stated as violation of dignity and thus can be considered as a criminal offence. The act considering this violation
as a civil offence has provided with few civil remedies such as fine, protection etc.

The Provisions under Indian Constitution

Part (iii) of Indian Constitution guarantees all the citizens of India irrespective of their caste, race, sex, religion,
pace of birth etc. certain fundamental rights

Rape laws in India are violative of Article 14 and 21 of Indian Constitution.

Violation of Article 14-

Article 14 provides for equality before law and equal protection of laws. For the applicability of Article 14, the
two conditions must be relied on i.e. Intelligible differentia and Rational nexus. Exception 2 to Section 375
discriminated against married and unmarried women violating her fundamental right under Article 14 of the
Constitution. The law clearly discriminates between married women above the age of 15 and below the age of
15. Married women like men and unmarried women need the protection of law in their private spheres. Section
375 IPC takes away women’s right of choice and indeed effectively deprives her of bodily autonomy and her
personhood. Thus, the classification is unnecessary, unintelligible and violates the mandate of Article 14.

Violative of Article 21-

Article 21 of the Constitution guarantees protection of life and personal liberty.

Right to live in Human Dignity

In Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty 1996, SC held that Rape is a crime against basic
human rights and is also violative of victim’s most cherished of the fundamental right. A married woman too has
the right to live in human dignity, right to privacy and rights over her own body. Marriage can in no way take
away these rights.

Right to Sexual Privacy

In Justice KS Putt swamy vs Union of India held the right to privacy as a fundamental right and includes
decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or
procreative nature and decisions in respect of intimate relations.

Judicial Stand
Nimesh Bhai Bharat Bhai Desai v. State of Gujarat, 2018
The Court examined the question: whether a husband forcing his wife to indulge in oral sex would amount to
rape punishable under section 376 of the IPC?

The views of the court were that the marital rape has still not been criminalized in our country as the Parliament
fears that it may destabilize the institution of marriage. An unprincipled wife may use it as a powerful tool or
weapon to torment her husband by filing false and frivolous complaints against him. But there are safeguards in
the criminal justice system to spot and inspect fabricated or erroneous marital complaints, and any person who
institutes erroneous and spiteful charges can be made answerable under law. Marital rape cannot be ignored just
because of this fear. Indian laws give women the right to life and liberty, but not her body, within her marriage.
Assault by a husband on his wife would be constituted as an offence under the IPC but if the same husband
forces his wife to have sexual intercourse, he would be liable for assault but not for an offence of rape only
because there is a valid marriage.

The court discussed three kinds of marital rape to be generally prevalent in the society:

 Battering rape: This is a type of marital rape where women experience both physical and sexual
violence in the relationship in many ways. Some occasions are those where the wife is battered during
the sexual barbarity, or the rape may follow a physically brutal episode where the husband wants to
make up and pressurizes his wife to have sex against her will. In most cases, the victims fall under this
stated category.

 Force only rape: In this type of marital rape, husbands use only that amount of force, as it is required
to pressurize their wives. In such cases, battering may not be an attribute, but women who deny sexual
intercourse usually must face such assaults.

 Obsessive rape: In obsessive rape, assaults involve vicious torture and/or perverse sexual acts and are
most commonly fierce in form. This type has also been categorized as sadistic rape.

Independent Thought vs Union of India (2017)

The issue before the court was whether sexual intercourse between a man and his wife being a girl between 15
and 18 years of age is rape?

The exception 2 to Section 375 of the Indian Penal Code, 1860 (the IPC) has a pessimistic view regarding this
issue, but the court submitted that sexual intercourse with a girl below 18 years of age is rape regardless of
whether she is married. The unnatural distinction is contrary to the spirit of Article 15(3) of the Constitution and
opposed to Article 21 of the Constitution. Child marriages were criminalized by enacting the Prohibition of
Child Marriage Act (PCMA) in 2006 as a first step towards this direction, but there was no subsequent
amendment made in Section 375 of the IPC, as it existed in 2006, to decriminalize marital rape of a girl child. A
girl between 15 and 18 years of age who is married could be a victim of “aggravated penetrative sexual assault
under The Protection of Children from Sexual Offences (POCSO) Act, 2012 but she cannot be a victim of rape
under the IPC” if she is raped by her husband since the IPC does not recognize such an assault as rape.

The court directed to strike down Exception 2 to Section 375 IPC in so far as it relates to a girl child below 18
years on the following grounds:

1. It is arbitrary, tyrannical and not fair, just, and reasonable. It violates the rights of the girl child by
infringing Article 14, 15 and 21 of the Constitution of India.

2. It is discriminatory and infringes Article 14 of the Constitution of India and.

3. It is contrary to the provisions of POCSO Act.

Tracing the history of judicial decisions on infliction of serious injury by the husband on the wife the court in
Queen-Empress vs Hurree Mohun Muthee observed that in case of married women the law of rape does not
apply between husband and wife after the age of 15, even if the wife is over the age of 15, the husband has no
right to disregard her physical safety.

In Emperor v Shahu Mehrab, the husband was convicted under Section 304A IPC for causing death of his child-
wife by rash or negligent act of sexual intercourse with her.

In Madhukar Narayan Mardikar SC referred to the right to privacy over one’s body. It was decided that a
prostitute had the right to refuse sexual intercourse. What is sad to know that all stranger rapes have been
criminalized and all females, other than wives, have been given the right to privacy over their bodies.

In Sree Kumar vs. Pearly Karun HC observed that because the wife is not living separately from her husband
under decree of separation, even if she is subject to sexual intercourse by her husband against her will or without
her consent, offence under Section 376A IPC will not be attracted.

The Judiciary seems to have completely relegated to its convenience the idea that rape within marriage is not
possible or that the stigma of rape of a woman can be salvaged by getting her married to the rapist.

Rather than making the wife worship the husband’s every whim, especially sexual, it is supposed to Thrivent
mutual respect and trust. How can law ignore such a huge violation of the fundamental right of freedom of any
married woman, the right to her body, to protect her from any abuse?

PIL to criminalize marital rape

Some are of the opinion that Exception 2 of Section 375 is arbitrary and unfair as Marital Rape is no less than
offence than murder, culpable homicide or rape per se and this creates discrimination between married and
unmarried women, so this was challenged in Delhi High Court by petitions. Petitions were of the All-India
Democratic Women’s Association, RIT foundations, forum to engage men and many more.

Petitioners contended to declare the said Exception as unconstitutional.

On the other side was an NGO-Men’s Welfare Trust representing the man victimized by the alleged misuse of
gender laws who contended that the issue affected large number of men at the hands of women who file false
rape and domestic violence cases. Plea also stated the statistics of National Crime Record Bureau (NCRB),
which said that 62,000 married men commit suicide every year, which is more than double the suicide by
women, with marital issue as the single largest reason.

The PIL had sought that there should be clear guideline for registration of causes related to marital rape under
framed guidelines and laws, so that accountability, responsibility and liability of the authorities concerned can
be fixed.
Bur HC did not entertain the petition saying that it is the domain of a legislature and not judiciary. It is very
tragic to note the take of the government and the judiciary regarding marital rape which reveals the nature of the
patriarchal Indian society.

Facts and Statistics (International Scenario)

Marital Rape is illegal in eighteen American states, three Australian states, New Zealand, Canada, Israel, France,
Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia. A U.K. case of R v R 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.

 Fourteen percent of married women report that they were raped by their spouse. Their percentage
probably underestimates the true prevalence of marital rape. (Russell)

 Of reporting women, 23% reported rape and sexual assault as the only abuse in the marriage. (Russell)

 As with rapists in general, the marital rapist is not a ‘crazed sex fiend’. He is generally a man who sees
sex as a solution to all the marital problems, as well as the source of validation for masculine identity.

 Marital rape is not always a part of battered women’s syndrome. However, at least half of all battered
women are also survivors of marital rape. (Russell)

 Adult female survivors of marital rape are in a higher percentage backup to have been sexually
molested as children. (Lystad, Frieze, Russell)

 A national survey found 10% of all sexual assault’s cases reported by women involved a husband or ex-
husband attacker. (Rape in America, 1992, National Victim Centre)

Types of marital rape

 Force Only Rape- The term describes a husband who uses threats and violence only to the degree
necessary to coerce sex. This type of rape usually occurs in relationships where violence is
predominantly verbal, and/or in relationships where violence occurs only/primarily in sexual
interactions.

 Battering Rape- When beatings and rape are combined, it referred to as ‘battering rape’. The sexual
abuse is part of the general pattern of psychological, verbal, emotional, economic and physical abuse.

 Obsessive Rape- The most openly sadistic form of rape is called ‘obsessive rape’. The abuser seems
obsessed with sex, and the act itself is violent.

What can Help?

For the victim-

 Friends and Family can be a great source of comfort and support.

 Shelters can provide a temporary safe place to stay. Shelter staff also may help by pointing out options
to consider.

 Hotlines offer immediate support and referrals to social service agencies.

 Legal aid services can offer low-cost or free legal information or assistance.

 Support groups can be helpful, allowing victims to talk to other people dealing with partner abuse.

In the Community-
  Express support for strong enforcement of current laws and for new legislation to combat domestic and
sexual violence.

 Support educational and prevention programs on local, state and national levels.

Criminalization of marital rape

Arguments against Criminalization

 Due to near impossibility of proving marital rape, its criminalization would only serve as an increased
burden to the already overburdened legal system.

 Dissatisfied, angry, vengeful wives might charge their innocent husbands with the offence of marital
rape.

 There is an implied consent to have sexual intercourse when a woman marries a man.

 Marital rape laws would destroy many marriages by preventing any possible reconciliation.

Arguments for Criminalization

 A study conducted by the Joint Women Programme; an NGO found that one out of seven married
women had been raped by their husband at least once. They do not report these rapes because law does
not support them.

 It may be showed that criminalization of marital rape, serves to recognize rape in marriage as a
criminal offence and would have a deterrent effect on prospective rapist’s husbands.

 Women foisting malicious charges, it may be noted that if proving a claim of rape in marriage is hard,
proving a fabricated claim will be even more difficult.

 Expression of love through sexual intimacy is not the same ass forced sex.

 A marriage in which the husband rapes his wife is already destroyed. Withholding justice and denying
equal protection for preserving marriages can be an improper goal of law.

Suggestions for Reform

 Marital Rape should be recognized by Parliament as an offence under the Indian Penal Code.

 The punishment for marital rape should be the same as the one prescribed for rape under Section 376 of
the Indian Penal Code.

 The fact that the parties are married should not make the sentence lighter.

 It should not be a defence to the charge that the wife did not fight back and resisted forcefully or
screamed and shouted.

 The wife should have an option of decree of divorce if the charge of marital rape is proved against her
husband.

 Corresponding charges in the matrimonial laws should be made.

Conclusion
The continuous exemption of marital rape from the purview of criminal law sustains the assumption of the wife
as exclusive property of the husband. It is conceded that changing the law on sexual offences is a formidable
and sensitive task, and more so in a country like India, where there is presence of a varied and differentiated
system of personal and religious laws that might come into conflict with the new amendments in the statutory
criminal law.

Can the state really enter the realm of the home? The answer to this is “yes”. It already does, in the cases of
cruelty, divorce and dowry demands, then why leave the most atrocious and heinous crime outside the ambit of
the State and laws. Why the area of marital rape remains beyond its pale? The immediate need is criminalization
of marital rape under the Indian Penal Code. But mere declaration of conduct as an offence is not enough.
Something more is required to be done for sensitizing the judiciary and the police. There is also a need to
educate the masses about this crime, as the real objective of criminalizing marital rape can only be achieved if
the society acknowledges and challenges the prevailing myth that rape by one’s spouse is inconsequential.
References
1. Prof. S.N Misra, The Indian Penal Code, Central Law Publications,20th edition, reprint 2017

2. Marital Rape in India: 36 countries where marital rape is not a crime, India Today, Mar. 12, 2016

3. https://www.rainn.org/pdf-files-and-other-documents/Public-Policy/Issues/Marital_Rape.pdf

4. http://www.hiddenhurt.co.uk/marital_rape.html

5. 1996 AIR 992, 1996 SCC (1) 490

6. Wikipedia, The free encyclopaedia. Marital rape in

7. AIR 2017 SC 4161 (India)

8. (1891) ILR 18 Cal 49

9. AIR 1917 Sind 42; as cited in supra note 6

10. AIR 1991 SC 207, 1991 (61) FLR 688, JT 1990 (4) SC 169, (1991) IILLJ 269 SC, 1990 (2) SCALE
849, (1991) 1 SCC 57, 1991 (1) UJ 109 SC

11. 1999 (2) ALT Cri 77, II (1999) DMC 174

12. (2013) 382 SCC (2017) (India).

13. (1992) 94 Cr App R 216, 3 WLR 767