Research report

On

MARITAL RAPE IN INDIA

RESEARCH METHEDOLOGY

SUBMITTED TO:

Dr .Alpa Sethi
Asst. prof. ALS
AUMP

SUBMITTED BY :-

Pranjal Gupta

Bba llb 4th sem

1
Table of Contents
Abstract ........................................................................ 3
Chapter 1: Introduction of the Topic ........................ 4
Introduction ................................................................. 4
background .................................................................. 6
Litrature review ........................................................... 6
Chapter 2: Research methodology and Analysis .... 15
Methedology …………………………………...…..15
survey report ……………………………….……….16
Chapter 4: Conclusion and Suggestions .................. 25
Conclusion ................................................................. 25
Future Suggestions .................................................... 26
Bibliography ............................................................... 27
Questionnair…………...……………………………28

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Abstract

Matrimony is a sacred bond that ties two people, and two families, together. But if this
matrimony is without consent or the people involved in the marriage are not content, then it
can turn sour. Our society is inclined towards a patriarchal system from the ancient times of
hunting and gathering. So, it comes as a natural nature for men to display emotions of
dominance. Looking around the globe, law and order has a huge role in prescribing and limiting
standards for human conduct. Under the Indian Penal Code, 1860, the laws have been made
and appropriate punishment for the same has been provided. But what most of the people fail
to comprehend is that these laws were made by the British a long time ago. At that time Marital
Rape was not considered a crime which can be one of the reasons why it was exempted under
the penal laws. This research paper substantiates and focuses solely on evolution of the rights
for women; mainly the effects of Marital Rape; and the reasons how it is in violation of the
Constitution of India

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Chapter 1: Introduction of the Topic

Introduction

For a long time, people believed that a woman’s duty in her married life is to look after her
husband, bear children, take care of household matters, cook and provide emotional and sexual
needs to her husband. This was first noted in Manusmriti which is considered to be an ancient
legal text and has been used to formulate the Hindu Law.

imaṃ hi sarvavarṇānāṃ paśyanto dharmamuttamam |

The same text states that it is the duty of a man to protect his wife, even if he is physically weak.
This kind of stigma has been created by the society itself and men assume the role of dominance,
sometimes taking it too far. The women were not given the status similar to that of their male
counterparts and, before marriage, were considered the property of their fathers, and after their
marriage, were considered the chattel of their husbands. The father could wed off his daughter
to whomsoever he deemed fit. The woman had to provide her husband sexually with or without
her consent to ensure progenies and continuation of the family line. This made the woman
believe that being sexually available to her husband at all times was a necessity and her duty;
she could never decline her husband’s wishes. But these laws were written a long time ago
when all of it was socially acceptable.

Women were considered to be the slave of man and the ill practices like Sati and child marriages
were prevalent in the country but the situation in the country changed after the movement of
Raja Ram Mohan Roy. Even Mahatma Gandhi took a great initiative to improve the social
conditions of the women because it was the first time in the Indian Independence Struggle that
women participated in the same and were at par with their male counterparts. The outcome of
these very movements was a Constitution which gave equality to the women and almost all the
rights that are given to the men; be it Right to Vote or Right to contest elections. Post-

1
Ganganatha Jha, Manusmriti with the Commentary of Medhatith,Wisdom Library, (last accessed on
April,12,2020,10:20 AM) https://www.wisdomlib.org/hinduism/book/manusmriti-with-the-commentary-of
medhatithi/d/doc201364.html

4
Independence, there were improvements and advancements in almost all the fields and focus
on the life being given to woman could be made better. They were rather discriminated on the
basis of their gender. The women have always fought for their rights and this was one of the
main reasons why the status of women and men was equated in the Indian Constitution. There
were many legislative reforms taken after the independence of the country to strengthen women
and improve their status in the country so that no discrimination takes place with them. With
the introduction of a Constitution, women have been granted equal social as well as political
rights to that of men.

Women have been given the freedom and all the support from the constitution so that they can
help in shaping the future of the country. The recent example of Mangalyaan is worth quoting
because the whole team in the same consisted mostly of female scientists. Even though women
have achieved great heights and are striving in almost all the fields whether it is education, law
enforcement agencies or science and technology, there are many areas where our country lags
behind.

5
Background

Marital rape was a term that was viewed by the law as an oxymoron late in U.S. history. Until
the 1970's, the rape laws in every state in the union included an exception if the rapist and the
victim were husband and wife. In 1993, all 50 states had finally eliminated the "marital rape
exception." But the effects of these archaic exceptions persist and interfere with spousal rape
prosecutions in some states.

While it has generally been illegal at all times for a man to force sex upon a woman other
than his wife, a husband could force sex upon his wife without violating the law until very
recently. The justifications for this marital rape exception were:

• the British common law view that the contract of marriage includes the husband's
"right to sex"—the wife having given consent for all time by entering the contract

• the traditional view of wives as the property of their husbands with which they could
do as they pleased under common law, and the public interest in promoting privacy
and harmony in marital relationships, which discouraged the state from interfering in
the relationships.

• Queen Empress versus Haree Mohan Maiti of 1890 was a case of child marriage and
marital rape of 1889 that took the life of a 10-year-old girl, Phulmani Das. Since the
age of consent was 10 then and since under the exception clause of Section 375 (defines
rape) of the Indian Penal Code, sex with wife is not rape, the Calcutta Sessions Court
sentenced the husband to only 12 months of hard labour.

• In 1892 Lord Lansdowne, then Viceroy of India, presented a bill before the Council of
India. The Bill was passed and it increased the age of consent from 10 to 12 years.
However, criminalization of marital rape did not happen and still, Section 375 exempts
it.

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Chapter 2: REVIEW OF LITERATURE

1. MARITAL RAPE

Marital rape in layman’s terms can be explained as a spouse having sexual intercourse with
their spouse without their consent.

According to Section 375 of the Indian Penal Code –

“Rape means unlawful sexual intercourse or any other sexual penetration of the
vagina, anus, or mouth of another person, with or without force, by a sex organ,
other body part, or foreign object, without the consent of the victim.” 2

However, there is an exception provided which says that if non-consensual sexual intercourse
takes place between a married couple, in that case, it will not amount to rape 3. Domestic
violence refers to the violent or aggressive behaviour within the home which involves the
violent abuse of a spouse or partner4 which takes place with a woman because the husband in
all the circumstances is powerful and most males comprehend that marriage gives them the
right to have sexual intercourse with the wife at any point of time whether she is willing or not.
This is the face of a patriarchal society; this act is detrimental to the institution of marriage.
IPC, 1860 provides for rape and punishment for rape under section 375 and 376, respectively.

Marriage is a form of social bonding between both the spouses and everything in this institution
needs to have the consent of both; Justice Ahmad in the case of Bodhisattwa Gautam v. Subhra
Chakraborty said that this“cruel act, in turn, destroys the entire psychology of a woman and
pushes her into deep emotional crises”5.

Marital Rape is a crime in almost all the countries of the world wherein they have either made
amendments to the existing law or added a new law for the same. Marital Rape has been
criminalised in around 150 countries of the world wherein countries have brought amendments

2
The Indian Penal Code,1860 (45 of 1860), s. 375
3
The Indian Penal Code,1860 (45 of 1860), Exception to s. 375
4
The Protection of Women from Domestic Violence Act, 2005. (No 43 of 2005)., s.3
5
Bodhisattwa Gautam v. Subhra Chakraborty (1996) 1SCC 490

7
in their law for criminalising marital rape. In the United States, marital rape is a crime in all
the 50 states whereas in the United Kingdom the maximum legal penalty for marital rape is life
imprisonment. In countries like the United Kingdom6, Fiji it was criminalised due to decision
delivered by courts, in some countries like Brunei7 the offence is explicitly criminalised. In
some countries like Bangladesh, India8 the law for marital rape does not exist because women
are considered the property of the husband and the state does not interfere in the institution of
marriage.

Many legislations have been passed in the country to check violence towards the woman such
as dowry, domestic violence or cruelty but amongst them is marital rape that has not yet been
criminalized in the country. Marital Rape is inhumane and the woman knows that she has to
live her whole life with the perpetrator which has a substandard physical and mental effect on
her. It is a very under-reported crime in the country because most of these women know that
going to the authorities will be futile as there are no laws for marital rape; they can also face
social boycott.

In the 21st century, when society is well aware of their rights and needs, laws need to be
amended. Indian Penal Code, 1860 provides that having sexual intercourse with a wife who is
under 15 years of age, is a crime. However, there is a loophole in this situation. According to
the Prohibition of Child Marriage Act, 2006, child marriage is only voidable and not void in
India which says that it is not immediately illegal9. The minor party, when attains the age of
major, can file for divorce within one year of attaining majority otherwise, the marriage is
considered legal. But till the party can attain legal age and there being no provision for men
asking for consent with their wife aged 15-18 years, this provides a window for husbands to
have sexual intercourse with their wives till they reach the age of majority. Consensual
intercourse between a 17-year-old boy and a 17-year-old girl is illegal but non- consensual
intercourse between a 50-year-old man and a 16-year-old girl can be legal.

Under the Protection of Women from Domestic Violence Act, 2005, the definition of domestic
violence is given under Section 3(a) which says that“harms or injures or endangers the health,

6
R. v. R, [1992] 1 AC 599 (UK)
7
Brunei’s Penal Code, s.375
8
Supra note 3
9
The Prohibition of Child Marriage Act, 2006, s. 3(a)

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safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to
do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and
economic abuse”.10 Sexual abuse mentioned under this definition includes any conduct of a
sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman 11 ,
which in turn gives a chance to wives to initiate legal proceedings. The drawback of this act is
that it is more civil in nature than criminal. It does not provide for a period of imprisonment.
Rather it provides for compensation, monetary gain, restraining and protective orders

2. MARITAL RAPE LAWS IN INDIA

Our country has advanced in almost all of the fields and there have been many amendments
and new legislations in our country, but till date marital rape is not considered to be an offence
in the country. The laws for protecting a woman in the institution of marriage does not exist
and the matters related to the same are left to the discretion of the court.

Under Section 375 of the Indian Penal code, has mentioned exception that – “Sexual
intercourse by a man on his own wife, the wife not being under 15 years of age, is not rape”12

Under the Indian Penal Code, the instances where punishment is awarded to husband under
marital rape is as follows:

i. When the age of wife is between 12-15 years, there can be imprisonment up to 2
years or fine or both;13

ii. When the age of wife is below 12 years, there must be imprisonment for term
which shall not be less than 7 years but can also extend to life and shall also be
liable to fine.14

10
The Protection of Women from Domestic Violence Act, 2005. (No 43 of 2005)., s3(a)
11
The Protection of Women from Domestic Violence Act, 2005. (No 43 of 2005)., s3(d)
12
Supra Note 1
13
The Indian Penal Code (45 of 1860), s. 376(1).
14
Ibid

9
 iii. When the wife is judicially separated, there can be imprisonment up to 2 years
and fine15

iv. When the age of wife is above 15 years, the rape is not punishable. 16

Hence, we can conclude that once a female crosses the age of 15 thereafter as a wife, she has
no legal protection if she is sexually harassed by her husband which is also a direct attack on
her human rights. It is very shocking because the Constitution has set 18 years as the legal age
for marriage whereas the law will protect only those females from sexual abuse which are
below 15 years of age and beyond this age limit there exists no remedy for the women.

Thus, it is depicted that the law which is meant for the safety of the victims, is not able to
protect those who are victimised and have gone through the trauma of marital rape because

according to the obsolete law, marriage in itself has given the consent to have intercourse at
any point of time after the marriage and the consent of the female is not needed. Violence takes
place with a woman due to which she has to submit herself to sexual activity and further on,
she gets hurt physically as well as emotionally. Our judiciary, as well as the legislature, is still
silent on the very fact that Is marriage a license to rape?

The Report of 42nd Law Commission17 talks about the removal of exception of Section 375
from the IPC because it is discriminatory towards women and is not in accordance to the law.
Even the Report of 172nd Law Commission18 was in favour of removing the exception to
Section 375 thereby making marital rape a criminal offence but more than 10 years have passed
and no action has been taken on the same issue

15
The Indian Penal Code (45 of 1860), s. 376A.
16
Supra Note 3
17
Law Commission of India, “42nd Report on Indian Penal Code,1860” (June, 1971).
18
Law Commission of India, “172nd Report on Review of Rape Laws” (January, 1998).

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5. CONSTITUTION OF INDIA ON MARITAL RAPE

This law which seemingly permits marital rape can be challenged on several grounds some of
which are enumerated herein. According to the Indian Constitution, all the laws which are
passed by the legislature should follow the basic structure doctrine of the Constitution. If any
law is in contravention of this, it can be declared as unconstitutional by the Courts. Any law or
provision, if made, in favour of marital rape it would have to be in consonance with the basic
doctrine of the Constitution.

a. ARTICLE 14

Article 14 of the Indian Constitution19 guarantees the Fundamental right of equality before
the law and equal protection of the laws within the territory of India. However, criminal law
is still silent on the discrimination that is faced by the victims of marital rape. The Exception
to Section 375 of IPC is a discriminatory law for the married women because there is a new
stratum of women created by this law who will not get protection from the law if they face
sexual harassment from their husbands which does not fulfil intelligible differentia because
it is arbitrary, artificial and evasive.

Section 375 does not include rape which is done by a husband to his wife. Protecting a person
from the ambit of Section 375 of the IPC based on the marital status is discriminatory and it
violates the Article 14 of the Indian Constitution. Rape or marital rape is one and the same
thing and the only difference is that the victim is married in the latter case, and everything
else is similar to what is in the rape. It is, in turn, difficult for a married woman because she
has to live her whole life with the perpetrator and they are dependent on their husband. In the
real sense, this exception encourages the husbands to commit forced sexual intercourse
because they know that the same is not punishable under the law. Hence, marital rape is in
clear violation to Article 14 of the Indian Constitution because equal protection is not
available to the female victims and it does not pass the twin test laid down in Article 14 of
the Constitution in terms of intelligible differentia and reasonable nexus.

19
The Constitution of India, art. 14.

11
 b. ARTICLE 21

Article 21 of the Indian Constitution says that:

“[N]o person shall be deprived of his life or personal liberty except according to a
procedure established by law.”20

In the case of Kharak Singh v. State of Uttar Pradesh21, the Hon’ble Supreme Court held that
“[b]y the term “life” as here used something more is meant than mere animal existence”
There have been many cases where the Supreme Court has interpreted this article and given
a whole new shape to it. Under Article 21, there are many rights which are given to the citizens
which include the right to health, dignity, safe environment, sexual privacy, human dignity,
among others. In the case of State of Karnataka v. Krishnappa22 , the Hon’ble Supreme Court
held that “[s]exual violence apart from being a dehumanizing act is an unlawful intrusion of
the right to privacy and sanctity of a female.”, it further held that rape in itself is a serious
blow to the self-esteem and dignity of the victim and it degrades her, leaving behind a
traumatic experience.

i. Right to Healthy and Dignified Life

In the case of C.E.S.C. Ltd. v. Subhash Chandra23, the Hon’ble Supreme Court held that Right
to Life also includes the Right to live a healthy and dignified life which is one of the most
important things to maintain the individuality of a citizen in the country24. The exemption to
Section 375 is a violation to the right to the good health of a married woman because marital
rape causes emotional, psychological and physical problems to a woman and puts her into
depression, moreover in the case of forceful sexual intercourse, there always exists a chance of
transmission of STDs to the victim. There are many cases held by the Hon’ble Supreme Court
wherein it talks about rape as a crime against the society and also violative of Article 21 of the

20
The Constitution of India, art. 21.
21
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295.
22
State of Karnataka v. Krishnappa, (2000) 4 SCC 75 (India).
23
C.E.S.C. Ltd. v. Subhash Chandra, (1992) 1 SCC 441 (India).
24
See also Bandhua Mukti Morcha v. Union of India (1997) 10 SCC 549, Francis Coralie v. Union Territory of
Delhi 1981 AIR 746, 1981 SCR (2) 516

12
Indian Constitution25. Hence the exemption to Section 375 of IPC is in clear violation to the
woman’s right to live a healthy and dignified life because sexual intercourse without the
consent of the woman challenges her dignity, as well as her health, therefore it violates the very
basic structure of Article 21 and is unconstitutional.

ii. Right to Sexual Privacy

There are numerous cases in the Apex Court where it has been held that Right to Privacy is to
be protected constitutionally under Article 21.26 Therefore, any type of forceful sexual act to a
woman is a violation of her privacy as it is her body and she has full right to consent to it and
protect it. If we talk about sexual privacy the same has been discussed by the Hon’ble Supreme
Court in the case of State of Maharashtra v. Madhkar Narayan27 where it was held that “[e]very
woman is entitled to her sexual privacy and the same is not open to for any and every person
to violate her privacy”. However, the exemption of marital rape in the IPC is violative to the
right to sexual privacy of a married woman because nobody should force her to have sexual
intercourse against her will. Therefore, this exemption is in violation with the Right to Privacy
and therefore should be held unconstitutional.

iii. Right to Bodily Integrity

A woman is the owner of her own body and all the decisions regarding her bodily matters are
to be taken by her, without the interference of anybody, whether it is having sexual intercourse
or not; that is something which is to be decided by a woman and she has the right to deny the
same and nobody can force her; in the eyes of IPC if a woman denies sexual intercourse and is
forced into it, the same is termed as rape but if a married woman is forced into sexual
intercourse by her own husband, the same is not rape. Hence, the exemption to Section 375 is
a violation of a married woman’s right over her own body because marriage does not mean that
consent for having sexual intercourse is not needed.

Hence, the exemption to the Marital Rape under Section 375 of the Indian Penal Code is in
clear violation of Article 14 & 21 of the Indian Constitution. This exemption does not pass the
tests of “just, fair and reasonable law” and the test of reasonable classification because it is not

25
The Chairman, Railway Board v. Chandrima Das¸ AIR 2000 SC 988.
26
Govind v. State of Madhya Pradesh, AIR 1975 SC 1378.
27
State of Maharashtra v. Madhkar Narayan, AIR 1991 SC 207.

13
a fair law and is discriminatory towards a married woman and makes a distinction towards
them. This exemption is now obsolete and needs not to be present in the IPC, rather India
should also take strict measures to guard the rights of the married woman because there is a
large portion of women who are victims of marital rape but they do not have a law which can
support them; the only remedy available to them is the Section 498A of the IPC and the
Domestic Violence Act. The Supreme Court in the case of State of Maharashtra v. Madhukar
Narayan Mandikar 28 held that “A prostitute had the right to refuse sexual intercourse if she is
being forced and the same is being done without her will; not withholding the same will amount
to Rape.” This is a vast problem, Indian judiciary in a plethora of cases have criminalised
almost all types of rapes but made an exemption to marital rape due to which a large fraction
of the females are victimised.

28
Supra note 29

14
Chapter 3: Research methodology and Analysis

Methodology

To meet out the objective of the study, secondary data is utilized. The method which has been
used here includes several stages namely; Identification, Investigation, Interpretation, and
Integration. Identification involves sorting the sources for research and we sorted all the
authenticated and reliable sources for extracting data i.e. the research identified and extracted
our data from several speeches and interviews of some legal professionals . Then research has
investigated this data and tried to analyse what all, research should have to include. The next
step was interpretation, and this was the most important step in bridging the blurry connecting
lines between our thoughts and the raw data available. With Endeavour, the research tried to
infer how important it is to criminalize marital rape in India.. And the last step involved the
integration of all the analysis and inferences so that it could be compiled into a single format
which will facilitate readers and help them to understand the topic.

Research Design

The research design is a very important step to make sure the research will be conducted flawlessly.

This step has a lot of importance as it enables the researcher to have an outlook of the procedure they
will be carrying out for the research.

The researcher has gathered the responses from the “privacy sources” as well, in which a “SURVEY
(online mode)” was conducted through the circulation of the “Google form” in which the main aim was
to know the necessity to criminalize marital rape in India . The researcher has gathered information
from certain “secondary sources” like the online database, journals, books etc. The articles have
provided with a lot of information related to marriage and its main elements like basic principles,
meaning, recent trends etc. and also the information related to Marital Rape, its main reasons and also
the main root cause for its rise in the recent scenario.

Also, the researcher has included the descriptive research design and to be specific has used the
“CROSS-SECTIONAL STUDY method” in which the particular sample size was taken and the one-
time research study was conducted.

15
 SURVEY REPORT

Question 1

Interpretation – it has been observed that half of the responders does study on marital rape ,
which means they have a good knowledge about the topic

Question 2

Interpretation – it has been observed that :-

And 57.1% of total population agrees that in India women got sexually harassed by their
husbands

16
 Question 3

Interpretation

It has been observed that 50% total population partially agrees that Indian wives are forced for
intercourse by husbands.

Question 4

Interpretation

It has been observed that 71.4% of total population disagree that its correct for men to have
intercourse with his wife without her consent.

17
 Question 5

Interpretation –

It has been observed that 42.9% of total population agree that wife also have intercourse
with men without his consent

Question 6

It has been observed that 71.4% of total population agree rape and marital rape are equally
serious acts

18
 Question 7

Interpretation – It has been observed that 64.3% of total population agree that India is in dire
need of bringing law to criminalize marital rape.

Question 8

Interpretation – It has been observed that 78.6% of total population agree that it will be
difficult for husband to prove his innocence if marital rape is criminalized

19
 Question 9

It has been observed that 64.3% of total population agree that the act of marital rape can be
covered by other provisions of IPC .

Question 10

It has been observed that 71.4% of total population agree that if marital rape is criminalized,
there will be abuse of law more than advantage.

20
HUMAN PERSPECTIVE

A majority of people are in favour of not criminalizing marital rape. This creates the face of
public opinion and portrays the nation in an incorrigible light. These arguments have gained
momentum because most people in India are culturally active and believe that the laws that
defined India a thousand years ago are prevalent even today. Moreover, these arguments hold
no place in the current times because this exception is discriminatory. Here are some arguments
and their rebuttal.

a. ARGUMENTS AGAINST CRIMINALISING MARITAL RAPE

i. The Sanctity of Matrimonial Institution

The first argument regarding not criminalizing marital rape is that it would destroy the sanctity
of the marriage and this would furthermore destroy the family. The sacred bond that a husband
and a wife share would be broken and the meaning of marriage would be lost. Criminalization
of marital rape would mean that the state is entering the fine line between home and law which
creates a brick wall situation for the judiciary. Providing a legislation for the same would mean
that the state is crossing boundaries and going beyond its jurisdiction. Marriage is between two
people and any decision encroaching upon this line can be met with opposition and harsh
criticism.

ii. Marriage is Consent

Marriage is how two individuals enter into a legal union in their personal capacities. Similarly,
people have argued that if these individuals have entered this contract on their volition then the
woman has already consented to the marriage. If the marriage is not by her own choice, the
parents are responsible for matching the matrimonial relation and that is considered as consent.
The tradition of not asking for the woman’s consent is widely prevalent. The consent of sexual
relationship is thought to be given, to the husband, while consenting to marriage or getting their
marriage fixed by their parents. Arranged marriage and forced marriage are two entirely
different concepts. Arranged marriage is when both parties are willing to get married upon
meeting each other whereas forced marriage is when either one of the parties is not consenting
for marriage.

21
 iii. Cultural Boundaries

People have been taught to follow certain traditions, norms and values since they were infants.
These values have been etched into one’s brains and anything that may go beyond it or does
not match the frequency is termed to be taboo. These socio-cultural norms have taught people
that it is normal for a man to expect from his wife to fulfil his sexual needs. Culture is what
makes a nation.

iv. Pseudo Cases

A large majority of the people have also argued that if legislation is made on marital rape, some
wives will use this as a tact to get out of their marriages or to intimidate their partners into
doing anything, threatening to use the said legislation. In the case of Arnesh Kumar v. State of
Bihar, the Supreme Court held that [s]ection 498A is being used as a weapon by disgruntled
wives rather than a shield29. It would then be the men who would come under the scrutiny of
the judiciary every second. This can create a ruckus in judicial proceedings as a plethora of
false cases can be filed which will delay the justice of more quintessential cases. India still does
not have the means to compensate for all the cases being delayed from years.

v. Pre-existing Legislation

The Protection of Women from Domestic Violence Act, 2005 is said to be the remedy for
marital rape. Arguments are made that if this legislation is already in force, there is no need for
a separate legislation for the same in the state. Marital rape can be considered under Section
3(a) “harms or injures or endangers the health, safety, life, limb or well-being, whether mental
or physical, of the aggrieved person or tends to do so and includes causing physical abuse,
sexual abuse, verbal and emotional abuse and economic abuse” 30. An existing provision has
been provided to foresee sexual and verbal abuse at the hands of the husband.

29
Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 (India)
30
Supra note 10

22
 b. ARGUMENTS IN FAVOUR OF CRIMINALISATION

i. Sanctity is Distorted

When a man has sexual intercourse with his wife without her consent, the sanctity of matrimony
has already been tainted. There is no option of going back and claiming that marital rape can
be exempted as it is crossing the boundaries of issues between a man and his wife. Similarly in
the High Court of Gujarat, in the case of Nimeshbhai Bharatbhai Desai v. State of Gujarat31, it
was held that the “[n]on-consensual act of marital rape violates the trust and confidence within
a marriage and the prevalence of marital rape in India is what has damaged the institution of
marriage”. When the concept of sanctity has been contradicted, this argument becomes
ethically flawed.

ii. Consent is Important

The Prohibition of Child Marriage Act, 2006, makes child marriage voidable rather than void32.
Parents can marry off their minor offspring to anyone and the children cannot take a divorce
or an annulment from their spouse until they are not minor anymore i.e. 18 years of age.
However, Section 375 of IPC, 1860 prohibits sexual intercourse of a man with wife less than
or of 15 years of age33. This, however, creates a loophole for those between the ages of 15 to
18 years of age. They have to co-inhabit with someone who may or may not force them into
sexual activities against their consent. This is an old tradition that pledges marriage is consent.
Being in the 21st century, these archaic laws can be changed according to the advancement of
society.

iii. Changing of Culture

Taking the mythology ‘Mahabharat’, it is believed that Yudhishthira bet his wife in a game of
‘chauras’ against Duryodhana. From ancient times, women have been objectified and have
been treated as a mere chattel. In marriages, the giving away of the bride is called ‘kanyadaan’
by the father to the husband. A girl is deemed to be foreign to her family members and is
believed to be owned by her husband. Old traditions like this should be logically debated upon
and it has to be understood that in this era, women have rights and cannot be objectified. The

31
Nimeshbhai Bharatbhai Desai v. State of Gujarat, (2017) No. 26957
32
Supra note 9
33
Supra note 21

23
cultural paradigm should be encouraged. This would help in evolution or banishment of old
traditions which seem irrelevant.

iv. A Criminal Liability

The Hindu Marriage Act and the Domestic Violence Act provides the women with a means so
that they can remove themselves from a threatening situation in turn for a civil liability. People
have argued that if there is an existing legislation for domestic violence which is inclusive of
‘sexual abuse’, then why do the women of India need another legislation. The Protection of
Women Domestic Violence Act, 2005, only provides the offenders with civil liability.
Moreover, in civil liability, the perpetrator can get away with just providing compensation to
the victim. For this crime, the perpetrator needs to be imprisoned. This will set an example for
the rest of the society that this crime needs to be recognized and the state will not turn a blind
eye to such behaviour.

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Chapter 4: Conclusion and Suggestions

Conclusion

Justice Krishna Aiyar in the case Rafiq v. State of Uttar Pradesh said that “A Murderer kills
the body but a Rapist kills the soul”34. The State says this is not sacrosanct and it is the sole
business between a husband and wife; the state has already made laws relating to marriage e.g.
dowry, cheating, cruelty and divorce. Adding marital rape to the list would be nothing but a
huge success for India towards healthy mental development. The state also said that
criminalising marital rape would “destabilize the institution of marriage” 35 and it can be easily
used to “harass husbands”. When an act has already been done to taint the very sacrosanctity
of marriage, how would getting justice for the very same act destabilize the marriage of the
two individuals? The marriage has already been destabilized when the spouse tried or did
sexually abuse their partner. The second point of ‘harassing husbands’ can be met with fast-
track courts and their speedy trials. Setting up of various other fast-track courts all over the
country would help in solving this issue of false cases. But when the state itself is rigid in not
taking any steps in furtherance of marital rape, then it can take years to get the act criminalised.
There is a need to criminalise the same because these steps are necessary to be taken so that
the married woman can also use the law to address their grievances. Marital rape will only be
criminalised when the distinction between rape and marital rape is understood.

Sensitisation of marital rape is the need of the hour. As a society, we are tremendously cultural
and put traditions on a pedestal. This ceases the need of discussing about taboos. Turning a
blind eye towards these taboos will not solve the problem itself; the problem still looms. Marital
rape cannot be put in force until the very own citizens of the nation are familiar itself with the
same. Even if marital rape becomes a crime, there would have to be a thorough explanation of
the said act/statute. Awareness of marital rape would have to be made in order to achieve the
zenith of justice. Various organisations have been committed towards the same but until the
citizens do not bring the attention of the judiciary to how grave the issue already is, no big steps
will be taken. Studies show that 70 per cent of women have experienced physical and/or sexual

34
Rafiq v. State of Uttar Pradesh, 1980 Cr. L.J. 1344 SC
35
Nimeshbhai Bharatbhai Desai v. State of Gujarat R/Criminal Misc. Application Nos. 26957, 24342 of 2017
and R/Special Criminal Application No. 7083 of 2017

25
violence from an intimate partner in their lifetime36. This goes against the very thing our
forefathers fought for- fundamental rights. Article 14 and Article 21 of the Indian Constitution
talks about equality and freedom of life and liberty. India needs to take a decision on the
furtherance of marital rape. In a land where goddesses are revered and worshipped, India can
certainly not afford to stay silent on this issue any further. Doing so would be a gross
miscarriage of justice.

Future Suggestions

In light of all of this, we propose a model to criminalise marital rape. First, we propose that the
exception clause be deleted. Second, we propose that it be specifically highlighted that the
relationship of husband and wife between the accused and the woman will not be a defence.
Third, we propose that the sentencing policy be the same. Fourth, we propose for certain
amendments in the Evidence Act to ensure that it takes into account the complexities of
prosecution in cases of marital rape.

36
World Health Organization, Department of Reproductive Health and Research, London School of Hygiene
and Tropical Medicine, South African Medical Research Council (2013).
http://www.who.int/reproductivehealth/publications/violence/9789241564625/en/

26
Bibliography

• Marital rape in India by Keerthi Krishna and Krati Purwar

• The History of Marital Rape Laws

• By Deborah C. England

• Marital Rape by legalservicesindia

• Explained | Marital rape in India: The history of the legal exception – the

hindu

• Marital Rape Laws

• Topic: marital rape – the print

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27
 QUESTIONNAIRE

Have you ever done any study on marital rape ?*

Do you agree that in India women got sexually harassed by there husband ?*
agree
Disagree
partially agree
partially disagree

Do you agree that Indian wives are forced for intercourse by husbands ?*
agree
Disagree
partially agree
partially disagree

Is it correct for men to have intercourse with his wife without her consent ?*
agree
Disagree
partially agree
partially disagree

Do you agree that wife also have intercourse with men without his consent ?*
agree
Disagree
partially agree
partially disagree

Do you agree that rape and marital rape are equally serious acts ?*
agree
Disagree
partially agree
partially disagree

Do you agree that India is in dire need of bringing law to criminalize marital rape ?*
agree
Disagree
partially agree
partially disagree

do you agree that it will be difficult for husband to prove his innocence if marital
rape is criminalized ?*

28
agree
Disagree
partially agree
partially disagree

do you agree that the act of marital rape can be covered by other provisions of IPC
?*
agree
Disagree
partially agree
partially disagree

Do you think that if marital rape is criminalized, there will be abuse of law more
than advantage ? *
agree
Disagree
partially agree
partially disagree

Any suggestions?

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