This article was downloaded by: [O P Jindal Global University]

On: 24 October 2014, At: 02:42

Publisher: Routledge
Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered
office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK

Australian Feminist Studies

Publication details, including instructions for authors and
subscription information:
http://www.tandfonline.com/loi/cafs20

The Impossibility of Marital Rape

Saptarshi Mandal
Published online: 23 Oct 2014.

To cite this article: Saptarshi Mandal (2014) The Impossibility of Marital Rape, Australian Feminist
Studies, 29:81, 255-272, DOI: 10.1080/08164649.2014.958124
To link to this article: http://dx.doi.org/10.1080/08164649.2014.958124

PLEASE SCROLL DOWN FOR ARTICLE

Taylor & Francis makes every effort to ensure the accuracy of all the information (the
Content) contained in the publications on our platform. However, Taylor & Francis,
our agents, and our licensors make no representations or warranties whatsoever as to
the accuracy, completeness, or suitability for any purpose of the Content. Any opinions
and views expressed in this publication are the opinions and views of the authors,
and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content
should not be relied upon and should be independently verified with primary sources
of information. Taylor and Francis shall not be liable for any losses, actions, claims,
proceedings, demands, costs, expenses, damages, and other liabilities whatsoever or
howsoever caused arising directly or indirectly in connection with, in relation to or arising
out of the use of the Content.
This article may be used for research, teaching, and private study purposes. Any
substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing,
systematic supply, or distribution in any form to anyone is expressly forbidden. Terms &
Conditions of access and use can be found at http://www.tandfonline.com/page/termsand-conditions

THE IMPOSSIBILITY OF MARITAL RAPE

Contestations Around Marriage, Sex, Violence
and the Law in Contemporary India

Downloaded by [O P Jindal Global University] at 02:42 24 October 2014

Saptarshi Mandal

Abstract India is one of the few countries in the world that continues to exempt husbands
from being charged with rape committed against their wives. This article describes a brief
period of contestation between feminists and the state in India, when this exceptional
treatment of marriage was challenged and it was demanded that the husbands legal
immunity be ended. Unpacking the responses of the state for retaining the immunity, this
article shows how the idea of marital rape as an impossibility is constituted and contested in
contemporary India. While the demand for repealing the husbands immunity did not succeed,
the manner in which the state framed the issue and internal debates among Indian feminists
over the politics and potentials of criminalising marital rape, complicates our understanding of
the issues at stake. Consequently, the article emphasises the need for situating the marital
rape question within a broader analysis of the legal regulation of marriage, rather than
focusing on criminal law reform alone.

Introduction
Holding husbands criminally responsible for non-consensual sex with wives has
possibly been one of the hardest feminist battles to fight the world over. Quite naturally, if
the legal category of rape implies sex without consent and the legal understanding of
marriage entails compulsory sex,1 then the two will be considered mutually exclusive and
the very notion of marital rape a contradiction and an impossibility. Indeed, the pronouncements of English jurists in the seventeenth and eighteenth centuries, such as
Matthew Hale and William Blackstone, which provide doctrinal support for exempting
husbands from the offence of rape, underscore exactly that: the conceptual impossibility
of marital rape. For Hale, if the wife had consented to the matrimonial contract, then she
could not retract that consent when it came to sex, which was an implicit term of that
contract (Geis 1978). Similarly, for Blackstone, since the husband and the wife were one
legal entity as per the Common Law doctrine of coverture, husbands could not be
prosecuted for committing rape against wives, for one could not possibly be held
responsible for committing a crime against ones own self (1765a, 430).2 The irrelevance of
the wives consent/non-consent to sex with husbands was not exceptional but was linked
to the legal status of wives in general. The reason for which wives could not independently
take up employment, practice law, enter into contract or own property was the same as
the irrelevance of their consent to sex with husbands.
Australian Feminist Studies, 2014
Vol. 29, No. 81, 255272, http://dx.doi.org/10.1080/08164649.2014.958124
2014 Taylor & Francis

Downloaded by [O P Jindal Global University] at 02:42 24 October 2014

256

SAPTARSHI MANDAL

These legal disqualifications of wives in political and economic spheres have

gradually withered away over the last century. Feminist critiques of rape and marriage
have similarly produced significant changes in the laws governing each of these. Formally
speaking, rape is no longer a crime of male property violation. Similarly, marriage is no
longer an indissoluble sacrament that determines the legal status of women. Starting from
the 1980s, most countries in the world have done away with the marital rape exception
(MRE), either legislatively or judicially. In a number of countries, in addition to being a
crime, marital rape is also regarded as a form of domestic violence with actionable civil
claims. Yet, despite these legal advances, in these very jurisdictions the specter of
impossibility continues to haunt actual instances of wives bringing rape charges against
their husbands. Thus British courts are found to pass lower sentences in cases of marital/
relationship rape, than in other cases of rape, on the ground that the harm involved in the
former is lesser than that in the latter (Rumney 1999). In Canada, where marital rape has
been a crime for more than 25 years, both prosecutors and defence lawyers alike think
that the sexual history of a couple is relevant to rape trials, because if the wife usually
consents to sex in a certain manner or in certain circumstances, then the husband has
every reason to presume her consent at every occasion, thus resuscitating Hales theory of
continuous consent in marriage (Lazar 2010). South Africa criminalised marital rape in
1993 but, even after a decade, judges were found to pass lenient sentences against
husbands convicted of rape, which prompted further legislative changes restricting judicial
discretion (S v Moipolai 2004, 19; S v Modise 2007, 73). While feminists in many American
states have succeeded in getting the MRE repealed, traces of the impossibility thesis
are now encountered in the legal systems attitude towards rape in non-marital intimate
relationships (Anderson 2003), thus confirming Catherine MacKinnons conclusion, that the
gradual repealing of the MRE from the penal codes, is less like a change in the equation
between womens experience of sexual violation and mens experience of intimacy, and
more like a legal adjustment to the social fact that acceptable heterosexual sex is
increasingly not limited to the legal family (1989, 176).
Against this broader global picture of feminist efforts against the MRE, on the one
hand, and the persistence of the impossibility thesis and its reappearance in different
guises, on the other, in this article, I shall discuss the recent encounter between feminists
and the state in India over repealing the MRE in the Indian Penal Code (IPC). Between
December 2012 and March 2013, popular and activist discourse around rape in India
assumed spectacular dimensions with people going out on the streets, demanding
security for women against violence and long-pending rape law reforms (Dutta and Sircar
2013). The outrage was triggered by the gang rape and murder of a female paramedical
student in New Delhi. The government hurriedly responded by forming a three-member
committee to examine existing laws and recommend changes to effectively address
sexual violence. The committee (popularly known as the Verma Committee) came up with
a 600-page report (Government of India 2013a) proposing large-scale changes to the
criminal law governing sexual offences. In addition to a range of procedural changes in the
law to make the legal system more accessible and the trial process more hospitable to
victims of sexual violence, the committee recommended that the definition of rape should
not be restricted to peno-vaginal penetration alone but must include all forms of
penetrative sexual assault committed by men on women, men and transgender persons.
The committee also recommended that consent must be defined as unequivocal
voluntary agreement on the part of the victim; that the MRE must be repealed; that the

Downloaded by [O P Jindal Global University] at 02:42 24 October 2014

THE IMPOSSIBILITY OF MARITAL RAPE

immunity that members of the armed forces enjoy against prosecution for sexual offences
must be repealed, and so on. Some of these recommendations made it to the Criminal
Law Amendment Act (2013) that was finally enacted in April.
In all this, the issue of marital rape emerged as one of the key points of contention
between feminists and the state and also as a subject of popular debate and discussion, in
a manner that had not happened before in contemporary history. Feminists were joined
by the Verma Committee, the Left political parties, civil liberties groups and large sections
of the media in urging the government to repeal the MRE. It was argued that the
relationship between the victim and the accused was immaterial in cases of sexual
violence, that the immunity provided to husbands was anachronistic and inconsistent with
the equality clause of the Indian Constitution, and that [i]f the government insists on
maintaining this exemption, it is incumbent on them to explain their defence of men who
rape their wives with impunity (Kapur 2013). While no explicit defence was offered in
those terms, the considerations of the state behind retaining the MRE in the amended law
on sexual offences can be gleaned from the official and unofficial statements made by
different actors and agencies of the state, at different moments during this period. These
were (1) that marriage in India was viewed differently from that in several Western
countries which had repealed the MRE; (2) that allowing wives to bring rape charges
against husbands was prone to misuse by wives seeking to settle scores with their
husbands on other accounts and (3) that even if marital rape was not criminalised, wives
did have legal remedies in the civil law domain of domestic violence, and hence were not
without legal protection. Eventually, the MRE was not repealed when the criminal laws
were amended in April 2013.
I begin the paper by mapping the complex web of rules in criminal and civil law that
regulate sexual violence in marriage in India. In the three following sections, I unpack the
states arguments for retaining the MRE and show how the impossibility thesis is
reproduced and sustained in contemporary discourses around marriage, sex and violence.
To dislodge the hold of the impossibility thesis, feminists everywhere usually have clear
and specific demands for law reform: repeal the MRE, disallow marriage as a defence in
rape trials and provide sentencing guidelines for judges so that they do not underplay the
seriousness of marital rape. In other words, feminist law reform efforts are geared towards
making marriage irrelevant in rape law. While the most visible demands from feminists
and allies during the period under study were along these lines, there was an internal
debate going on among feminists on the politics, promises and potential downsides of
criminalising marital rape. This internal debate, to which I turn towards the end of the
paper, complicates our understanding of the issues at stake and forces us to think
differently about how to challenge the impossibility thesis.

Legal Regulation of Sexual Violence in Marriage

Post the 2013 amendment, rape is defined by the IPC as penetration of a womans
vagina/urethra/anus/mouth by the penis/mouth/objects/any other body part manipulated
by a man, without the consent of the woman or irrespective of her consent, when she is
below the age of 18 (Section 375, Indian Penal Code 1860). It is punishable by rigorous
imprisonment for a minimum of seven years and imposition of fine (Section 376, IPC). The
contentious exception clause to the above offence states: Sexual intercourse or sexual
acts by a man with his own wife, the wife not being under fifteen years of age, is not rape

257

Downloaded by [O P Jindal Global University] at 02:42 24 October 2014

258

SAPTARSHI MANDAL

(Exception 2, Section 375, IPC). This creates a distinction between wives and non-wives in
terms of right to bring criminal charges against men for non-consensual sex. Similarly,
men are also divided between husbands and non-husbands in terms of immunity from
prosecution for rape; in one case, when an alleged rapist produced photographs in course
of the trial, showing his marriage to the victim, he was acquitted by the trial judge
(Majumdar 2003).
Wives are further sub-divided by the law on the basis of age and status of the
marriage. As the exception clause quoted above shows, the MRE is inapplicable when the
wife is a minor below the age of 15. The husband can be prosecuted for rape in such
situations. Although 18 is the age of majority as well as the legally stipulated minimum
age for marriage for women, child marriage is a widespread phenomenon in India. Hence,
15 is the age of consent for wives, while it is 18 for the others.3 The MRE has restricted
application when the wife has been living separately from the husband, under or without
a decree of judicial separation. In such cases, again the husband can be prosecuted but, if
convicted, the minimum punishment is imprisonment for two years and imposition of fine
(Section 376B, IPC). The legislative history of this concession to separated wives against
rape by husbands reveals the hold of the impossibility thesis in otherwise progressive rape
law reform. This clause was enacted in the year 1983, a watershed in the history of rape
law reform in India, when major changes were brought in the law of rape for the first
time since its enactment by the colonial state in 1860. The parliamentary committee that
gave final shape to the 1983 amendments was reluctant to treat non-consensual sex
between a separated couple as amounting to rape, on the ground that a rape charge
might mar the chances of reconciliation between a separated couple and make divorce
inevitable. Hence, the minimum sentence stipulated for this category of rape was set
much lower than that in general. The 2013 amendment further enacted a clause
prohibiting courts from taking cognizance of allegations of rape made by a separated
wife, unless the court is prima facie satisfied that the facts indeed constitute such an
offence (Section 198B, Code of Criminal Procedure 1973). This, in effect, made it difficult for
separated wives to bring rape charges against their husbands.
To summarise the regulation of marital rape in criminal law, a minor wife below 15 is
allowed maximum protection against rape, a separated wife above 15 has limited
protection and a cohabiting wife above 15, no protection. Similarly, a husband enjoys
absolute immunity in case he rapes a cohabiting wife above 15, restricted immunity in
case of a separated wife above 15 and least immunity in case of a minor wife below 15.
Beside criminal law, sexual violence in marriage is also regulated by the civil law
domains of divorce and domestic violence. Sexual violence by the husband could be
regarded as a form of cruelty, which is a ground for divorce under all the religious and
secular matrimonial laws. It also amounts to sexual abuse under the law addressing
domestic violence enacted in 2005, under which aggrieved wives or female live-in
partners can claim civil remedies, like injunction against violence, dispossession from
home or direction to the husband/partner to pay maintenance (Protection of Women
Against Domestic Violence Act 2005). The scope of these two civil law consequences of
sexual violence in marriage will be discussed in detail in Section 5. Here, however, I will
just make some comments on the regulatory aspects of the legal framework described
above.
First, to the extent that criminal law has a regulatory function of influencing and
controlling individual and social behaviour, sexual violence by husbands is subjected to

Downloaded by [O P Jindal Global University] at 02:42 24 October 2014

THE IMPOSSIBILITY OF MARITAL RAPE

minimal regulation by the IPC. Instead, the criminal law itself is regulated by the culturally
valued notion that marriage must be shielded from public scrutiny and its continuance
must be ensured at all costs. The law kicks in to regulate sexual violence in marriage only
in cases when it is accompanied by extreme physical violence or when the health and
safety of the wife is endangered, as in the case of minor wives. Second, the strict
distinction that the criminal law makes between marriage and non-marriage in regulating
sexual violence is unsettled by live-in relationships, which may not have the legal label of
marriage but may still share all the substantive features of one. Sexual violence in live-in
relationships thus results in regulatory paralysis, as it were, in the minds of judges and
legislators, as was seen during the law reform period (Jain and Chakrabarty 2013). Third,
even though in theory sexual violence in marriage is regulated differently by the criminal
and the civil laws, they may not operate independently of each other in practice. There is
very little evidence to support this claim at the moment, but it would be instructive to
probe as to what extent the judicial determination of the civil law remedies for marital
rape is influenced by its non-recognition in the criminal law.4 Finally, for cohabiting wives
above 15 facing sexual violence, the only options that the law creates are to either leave
the marriage, in which case they are likely to become economically worse off (Singh 2013),
or to stay in the marriage with the hope of reforming the husbands behaviour through
injunctions against domestic violence. For most wives, then, the criminal law offers no
protection against sexual violence by husbands, and the civil law remedies offer recourses
that are likely to be unfavourable to them in the long run.
Having described the law and its regulatory effects, I now turn to the justifications
given by the state in retaining this unfair legal framework, during the recent law reform
debates.

Marriage as a Sacrament and Other Stories of Cultural Nationalism

In almost every newspaper report (Hindustan Times 2013) and television interview
(IBN Live 2013) during the law reform process, the Law Minister Ashwani Kumar maintained
that the foremost argument against criminalising marital rape was that marriage in India
was different from that in the West, in that it was not viewed as a contract but as a
sacrament. The implication being that, the divinely ordained union that marriages in India
were, the rights and obligations of spouses in conjugal relations were beyond the scope of
regulation by criminal law. Presumably, this was in response to the irony that was being
pointed out by the opponents of the MRE: that in not criminalising marital rape, India, the
worlds largest democracy, was placing itself in company of a handful of countries with
disreputable democratic and human rights records.
On the face of it, the argument of the Law Minister is problematic as it projects the
understanding of marriage in classical Hindu law as the Indian view of marriage, thus
eliding the conception of marriage in other systems where it is viewed as a contract, such
as Muslim law or customary law practiced within several indigenous communities. In India,
aspects of family life such as marriage, divorce, adoption, inheritance, and so on, are
governed by the religious laws of each community. The explanation for this lies in the
colonial origins of the current Indian legal system. While the laws regulating criminal
justice and economic life were made uniform for all communities by importing principles
of English law (for example, the Indian Penal Code 1860 and the Indian Contract Act 1872),
the colonial state sought to preserve the religious beliefs and customs of the natives and

259

Downloaded by [O P Jindal Global University] at 02:42 24 October 2014

260

SAPTARSHI MANDAL

hence refrained from interfering with them. Consequently, a dual system of laws came
into existence, one for the public sphere and one for the private sphere. Further, within
the private sphere, each community was governed by its own religious laws, which were
administered by the British courts. Post-independence, the modern Indian state continued
with this plural legal system, whereby marriage and other aspects of family life of each
community are regulated differently as per their conception in the religious and customary
rules of the community. However, notwithstanding the correctness of characterising
marriage in India as not contract, what is relevant to note here is that the question of
whether marriage is a contract or a sacrament has been fertile ground for articulating a
cultural nationalist politics since the nineteenth century.
In classical Hindu law, similar to canon law, marriage was a sacrament. Fathers had a
religious obligation to marry off daughters before they reached puberty. In 1860, the
Indian Penal Code fixed the age of consent for girls at 10, but the law had no impact on the
practice of child marriages. Towards the late nineteenth century, social reformers, under
the aegis of the colonial state, sought to abolish child marriage by raising the age of
consent to 12. This created a rift between the reformers, who wanted to use the authority
of the colonial state to improve the status of Indian women, and the nationalists who saw,
in any such move, an unjustified intervention of an outsider authority in the private realm
of religion and the home. Two cases further galvanised the debate. In 1885, Rakhmabai, a
young woman who was married as a child refused to live with her husband, who in
retaliation filed a case of restitution of conjugal rights. After a long legal battle, the
husbands claim was upheld by the British Privy Council. In 1890, Phulmonee, an 11-yearold child bride who was raped by her 35-year-old husband, died as a result of the injuries
sustained. Her husband was prosecuted for his rash and negligent act, and not rape as
she was above the age of consent. The two cases, which have been written about in detail
elsewhere (Chandra 1998; Sarkar 1993) furthered the case for introducing the idea of
consent in Hindu marriage through legislation, in the face of stiff resistance from the
nationalist elite whose opposition was pegged on the sacramental nature of the Hindu
marriage. While the age of consent law was ultimately passed in 1891, the episode, as
feminist historian Tanika Sarkar has written, aided the nationalists in consolidating the
Hindu home as a space of spiritual purity, community tradition and self-governance,
uncontaminated by the state (Sarkar 1993, 18701871).
Post-independence, the law governing marriage for Hindus was modernised,
codified and recast along the lines of English matrimonial law, and the Hindu Marriage
Act (1955) was enacted. The sacramental aspect of traditional Hindu marriage was reduced
to the lone requirement of a religious ceremony. The chief ingredient of modern Hindu
marriage was consent of the parties, which was sought to be secured by stipulating
minimum age for marriage and mental capacity to consent. As Family Law scholars and
practitioners generally agree, however, the reformulation of the Hindu marriage as a
contract between consenting adults is a myth because judges continue to interpret the
Hindu Marriage Act within the framework of marriage as a sacrament. As a result, at least
till the mid 1970s, one could discern trends in judgements whereby the consent of wives
were subordinated to the conjugal rights of husbands. Should consent to a marriage be
obtained by force or by fraud, the Hindu Marriage Act does allow either party to opt out of
the marriage. Sociologist Patricia Uberoi has observed, however, that in judicial practice,
the understanding of force and fraud is much broader than what they imply under the
law of contract. Uberoi cites judgements where the consent of parents to the marriage

Downloaded by [O P Jindal Global University] at 02:42 24 October 2014

THE IMPOSSIBILITY OF MARITAL RAPE

proposal or the marriage ceremony is deemed as sufficient proof of consent of the parties
to the marriage (1997, 190195). Judicial decisions show that, to a greater or lesser degree,
aspects of the sacramental understanding of marriage pervade the judicial discourse on
the rights of wives in marriage. Feminist activist and legal scholar Flavia Agnes therefore
argues that the womans age in modern Hindu marriage functions simply as a signifier of
her sexual maturity, as it did not automatically translate into a sign of her active consent
(2011, 7).
Marriage in Muslim law, on the other hand, is regarded as a contract which enables
the wives to claim and negotiate a range of rights while entering into marriage and at its
dissolution. The contractual nature of the Muslim marriage was recognised by the English
courts in colonial India, which upheld the rights of the wives by interpreting their
marriages as contracts. Agnes, through her discussion of some of these judicial decisions,
shows how the Muslim wife was regarded as an active agent, who could determine the
terms of the marriage contract, enforce pre-nuptial agreements against husbands and inlaws, opt out of the marriage contract upon attaining puberty (threshold of maturity in
Muslim law) and claim a range of economic rights in marriage (Agnes 2011, 46). After
independence, however, the contractual model of marriage in Muslim law, with relatively
more effective protections for the rights of the wife, was devalued as it did not enjoy the
ideological favour acquired by the Hindu Marriage Act. Since Muslim family law did not
undergo state-led reform and codification like its Hindu counterpart, it led to the
assumption that Muslim law was unchanging and that it gave less rights to women than
Hindu law. This mistaken view has been propelled further by the political rhetoric of the
Hindu Righta cluster of right-wing Hindu religious and political organisations dedicated
to the propagation of Hindu cultural values and the establishment of a Hindu state
which projects that the Hindus are governed by secular and gender-just laws, while the
Muslims constitute a threat to national integrity as they insist on being governed by their
own group law. Similar to the nineteenth-century nationalists, for the contemporary Hindu
Right ideologues women,the home is the embodiment of Hindu cultural supremacy and
national essence, which must be shielded from the value systems of both the external
Other (the West) and the internal Other (Muslim). One of the main poll promises of the
Bharatiya Janata Party (Indian Peoples Party) the political arm of the Hindu Righthas
been to end the special treatment accorded to minority communities and enact uniform
family laws for all Indians.
In such a context of communal politics, invoking the idea of marriage as a sacrament
not only forecloses the question of womens consent in marriage and various facets of the
conjugal relationship, but it also plays into a virulent cultural nationalist project.

The Innocent Husband and the Misuse Argument

Lurking behind vague statements by the government that recognising marital rape
will result in practical difficulties (Rediff News 2013) was the apprehension that, if the law
allowed wives to bring rape charges against husbands, it will be difficult for the latter to
defend themselves. As Madhu Kishwara former womens rights activist who has
subsequently become an ally of anti-feminist mens rights groupsasked, how does a
man prove that the sexual relation on a particular day or night with his wife was with her
consent? Have her sign an affidavit every time they go to bed together? (Manushi 2013).
Questions of evidence in cases of marital rape are indeed difficult issues, especially when

261

Downloaded by [O P Jindal Global University] at 02:42 24 October 2014

262

SAPTARSHI MANDAL

the victim does not bear physical signs of violence, but Kishwars question occludes the
real issues at stake. Even if marital rape were to be recognised by the law, the burden will
be much more on the wife to prove that the alleged sexual act was without her consent
than that on the husband to prove the opposite. After all, the culturally prevalent belief
that consent to sex can be presumed in marriage does not disappear from the
administration of the law, even if the law provides otherwise. This is borne out by all
the examples cited in the introduction, from jurisdictions where marital rape is recognised
and also by the experience with the Indian law addressing domestic violence, discussed in
the next section.
Not surprisingly, this idea of innocent husbands as the potential victims of marital
rape law resonated with and built upon a pre-existing theme having wide leverage within
the legal system as well as the wider society, that women tend to misuse laws meant for
their protection to harass and intimidate hapless husbands. This notion of misuse, which
began circulating in the early 1990s as a patriarchal backlash against a criminal law
provision targeting domestic violence,5 was invoked time and again as a lesson that one
must keep in view while enacting laws targeting violence against women. Thus, the Law
Minister justified the governments decision to not include marital rape in the law reform
by stating to a newspaper: There is a need for introspection and reflection to ensure that
laws are not capable of being abused. If there are gaps in the law, it can lead to gross
violation (Hindustan Times 2013).
That this anxiety was shared not only by the government but also by a significant
section of the legislators is revealed by the frequency with which it was referred to during
the parliamentary debates over the amendments. During the debate in the Lower House
(Lok Sabha) of the Parliament, out of 29 members who spoke, 12, cutting across political
parties and gender, talked about the need for stringent legislations to protect women
from violence and cautioned against misuse of such laws by women, in the same breath
(Government of India 2013b). Only Priya Dutt, a female member from the ruling Indian
National Congress party, emphasised that the constant invocation of misuse detracts
attention from the fact that most victims of sexual violence are denied access to the legal
system in the first place (Government of India 2013b, 23).
Indeed, feminist activists and organisations have pointed out for a long time that the
proponents of the misuse argument do not have any empirical basis. In the experience of
individual women who approach the legal system or womens organisations supporting
such women, it is seen thatbe it registering a case or prodding the police to carry out
investigation or enforcing a court order if the woman is lucky enough to get a favourable
oneat every stage in the legal process, women run up against innumerable hurdles and
are constantly advised to withdraw their cases (Basu 2006; Special Cell for Women and
Children 1999). Similarly, review of judicial decisions show the hostile attitudes of the
judiciary towards women claiming rights, in general, and in particular, those women who
claim rights against their husbands or families (Agnes 1996). For most victims of domestic
or sexual violence, approaching the legal system, proving ones case and getting remedies
is thus both difficult and rare. The inaccessibility of the legal system is further compounded
by a womans class/caste position and rural/urban location. Consequently, the ability of
women to manipulate the system also depends on these markers of privilege.
The picture that the misuse lobby projects, therefore, both overstates the problem
of false complaints and misrepresents the issues at stake. If anything, as feminists lawyers
and activists argue, the threat of criminal sanction is the lone bargaining tool that wives

THE IMPOSSIBILITY OF MARITAL RAPE

have to protect their interests against husbands, since the laws of marriage as well as the
legal system are largely unfavourable to them. Arguably, it is in this context that the
criminal sanction against marital rape must be assessed, even if the law remains
unenforced in practice.

Downloaded by [O P Jindal Global University] at 02:42 24 October 2014

Privatising Marital Rape and the Promise of Civil Remedies

Feminists are familiar with the argument of the sanctity of the family to justify nonintervention by the state. The opposition to the repeal of the MRE not only played on this
age-old theme of sanctity of marriage and family but also posited the family itself as the
pre-eminent dispute settlement body to address sexual violence within marriage. As a
female legislator, Sumitra Mahajan, said during the debate over the Amendment Bill in the
Lower House of the Parliament: We have our own peculiar family system and the
counseling is done within the family. The counseling should be done within the four walls
of the house (Government of India 2013b, 13). Similarly, the parliamentary committee that
examined the governments law reform proposals prior to the legislative debates, stated
the following in their report:
The committee felt that if a woman is aggrieved by the acts of her husband, there
are other means of approaching the court. In India, for ages, the family system has
evolved and it is moving forward. Family is able to resolve the problems, and there is
also a provision under the law for cruelty against women. It was, therefore, felt that if
the marital rape is brought under the law, the entire family system will be under
great stress, and the committee may perhaps be doing more injustice. (Government
of India 2013c, 47)
While not denying the possibility of sexual violence in marriage, what was being
stated was that recourse to criminal law to deal with the issue would be an unjustified
interference in the familial domain. Instead, the committee pointed out that, in spite of the
MRE in the Penal Code, wives did have remedies against forced sex which lay in the
domain of familial dispute resolution and the civil law domain of matrimonial disputes and
domestic violence. Rape in marriage was thus sought to be framed as a private dispute
between husband and wife, adequately addressed through existing remedies in civil law.
In this section, I problematise this position by looking at the scope of these legal remedies,
the manner in which they are administered by the courts and what realistic implications
they have for wives facing sexual violence.
Forced sex by husbands upon wives has legal consequences in Indian matrimonial
law, in that it could be treated as a matrimonial fault, resulting in dissolution of the
marriage. All the religious personal laws and the secular law governing marriage and
divorce in India deem cruelty by a spouse on another, to be a ground for divorce.6 The
originally enacted Hindu Marriage Act provided that in order to constitute a ground for
divorce, an act of cruelty should be such that it should cause a reasonable apprehension
in the mind of the petitioner that it will be harmful or injurious for the petitioner to live
with the other party (Section 10(1)(b) 1955 [pre-1976]). The requirement of proving
reasonable apprehension of harm or injury was removed by an amendment to the Act in
1976, which liberated this clause from the high standard of proof that it cast on the
petitioners. While the term cruelty is not defined by the law, judicial interpretation of the

263

Downloaded by [O P Jindal Global University] at 02:42 24 October 2014

264

SAPTARSHI MANDAL

term in concrete cases has given it a wide range of meanings, from refusal to have a child
to false allegation of adultery against a spouse to the wife not serving tea to the husband.
My search into reported judgements yielded only two instances under the Hindu
Marriage Actone of them pre-amendment and the other postwhere forced sex by
husbands upon wives was acknowledged as cruelty, and the wives petitions for divorce
were granted on that basis. In the 1964 case of Kusum Lata v Kampta Prasad (All India
Reporter 1965), the wife petitioned for judicial separation on the ground of cruelty. The
wife argued that unfounded accusations of unchastity against her by the husband, the
latters failure to get her treated despite her serious illness and the latters insistence on
sexual intercourse against her wishes had led to a reasonable apprehension of harm to
herself, and hence it constituted cruelty against her by the husband. The wifes petition,
however, was dismissed by the trial court and, on appeal, by the district court too. On
further appeal, the Allahabad High Court held that the lower courts had shown a tendency
to favour the husband and rationalise his actions, while making light of the wifes
grievances. Specifically, on the point of forced sexual intercourse by the husband, Justice
M. H. Beg observed:
The lower appellate court has, very lightly, dismissed this matter by observing that
all young and newly married husbands are liable to indulge in sexual relations with
their wives rather excessively. The lower appellate court also observed that, after
reading the evidence, it appeared that the appellant wanted to dictate to her
husband the time when he should have sexual relations with her. It appears to me
that the approach of the lower appellate court towards the whole subject of
relations between a husband and wife is completely out of tune with the times and
in conflict with the ideas underlying the concept of cruelty []. That concept
appears to me to be one which is based on mutual regard and consideration by
each spouse for the other. It excludes, in my opinion, selfish brutality or disregard for
the health, needs, desires, and feelings of the other by either spouse even in a
matter such as sexual relations between the two. (Para 27)
Convinced that the wife was justified in seeking judicial separation from the
husband on the ground of cruelty, the High Court granted the wifes appeal.
The second example, which is from the post-amendment period when the notion of
cruelty was much more liberalised, is the 1997 case of Vinit Joglekar v Varsha Joglekar (All
India Reporter 1998). The wife in this case filed for divorce on the ground of cruelty. In
addition to complaints of violence, ill-treatment and harassment to herself and the
children, the wife complained of the husbands abnormally increased demands for sex.
The wife also alleged that the husband used to force her to watch blue films and engage
in unnatural carnal relations that he used to read about in pornographic books. Both the
lower court and the appellate court were satisfied that the wife had established that she
was treated with cruelty by the husband and she was granted divorce.
While the notion of cruelty in the Hindu Marriage Act does not refer to any specific
sexual offence, the Indian Divorce Act of 1869, which governs the dissolution of marriages
among the Christians in India, allows the wife to initiate divorce, if the husband commits
rape, bestiality or sodomy, with anybody, including the wife (Indian Divorce Act Section 10).
In Grace Jayamani v E.P. Peter (All India Reporter 1982), the wife filed for divorce on the
ground of non-consensual sodomy and the court granted the same.7 In addition to the

Downloaded by [O P Jindal Global University] at 02:42 24 October 2014

THE IMPOSSIBILITY OF MARITAL RAPE

specific ground of sodomy, the wife in this case complained that the husband would force
her to have sex against her wishes, even when she had fever or was menstruating. The
wifes father, to whom she had confided, further testified about the nature of sexual
violence committed by the husband. Based on a colonial period precedent from 1882 that
held that a husband could be held guilty of committing sodomy on his wife if it was nonconsensual and that it allowed the wife a valid ground for divorce, the court concluded
that the wifes testimony in this case had sufficiently established that the husband had
committed sodomy on her against her wishes and granted her divorce.
The extremely small number of judicial decisions that acknowledge forced sex by
husbands upon wives as harms with legal consequences suggests that it is not a ground
usually taken by wives while seeking divorce or judicial separation. This could be either
due to their own perception that forced sex by husbands does not amount to rape or any
significant harm entailing legal redress. Or it could be owing to a pragmatic concern that
their allegation of forced sex by husbands will not be taken seriously by the judges and
that it would weaken their petition for divorce. After all, in two out of three judgements
referred to above, the allegations of forced sex by the wives were accompanied by other
aggravating circumstances of violence and ill-treatment. It is doubtful if the wives
petitions for divorce would have been granted if they were based on the ground of nonconsensual sex alone.
Since 2005, forced sex by husbands or male live-in partners has found cognizance in
another area of law, offering a different set of reliefs. The Protection of Women from
Domestic Violence Act 2005, deems sexual abuse against wives or female live-in partners
as domestic violence with actionable civil claims, such as protection orders, separate
residence, payment of maintenance and compensation (Section 3, Explanation 1[ii]). No
appellate court to date has had the opportunity to decide a case under this Act involving
an allegation of marital rape, but a look at trial court orders helps us understand the extent
of its usage by women and the manner in which magistrates have been addressing such
claims (Lawyers Collective Womens Rights Initiative 2008, 2009, 2010, 2011, 2012, 2013).
The number of cases with women complaining of sexual abuse by husbands or male livein partners has steadily risen over the years and the courts have awarded reliefs in such
cases. A common finding across the years, however, is that in most cases, the magistrates
neither elaborate on the allegations of sexual violence made in the petitions nor specify in
their orders if the relief is being granted in light of the sexual violence committed by the
defendants. Since complaints of domestic violence contain allegations of sexual abuse
along with other instances of abuse, it is difficult to infer the weightage given to the
former by judges while granting relief to aggrieved women. Nevertheless, the absence of
any discussion in the orders on the charges of sexual abuse made by women, the nature
of evidence used in making these claims or whether such evidence was accepted by the
courts or not, itself may be taken to suggest that complaints of sexual violence are not
taken seriously by the judges, while deciding domestic violence claims (Lawyers Collective
Womens Rights Initiative 2010, 140). Whether this is on account of its non-recognition in
criminal law is a question that requires further research.
Thus non-consensual sex in marriage, even when it has legal consequences, is not
recognised for what it is. Instead, couched in a broad understanding of domestic violence,
an act of non-consensual sex derives its legal significance from other accompanying acts
of violence. An advantage of this for the wife facing sexual violence is that she does not
have to prove every alleged act of non-consensual sex beyond reasonable doubt, as is

265

266

SAPTARSHI MANDAL

required by criminal law. On the other hand, she may not succeed in getting divorce or an
order of maintenance if she bases her claim on acts of non-consensual sex alone.

Downloaded by [O P Jindal Global University] at 02:42 24 October 2014

Feminist Conundrums and Rethinking Criminalisation

In popular imagination and media representation, the feminist position in the law
reform debates was that of an unequivocal demand to repeal the MRE. Indeed, for many
Indian feminist scholars (Gangoli 2007; Kumari 1999; Kapur and Cossman 1996) and
activists (Krishnan 2013), the MRE is the most explicit example of how the law perpetuates
sexual subordination of wives within marriage. That was the position articulated in all the
submissions made by womens groups to the Verma Committee and to the government
and in the press statements that were issued when the final amendment did not accede to
that demand. There were also, however, feminists who questioned the premise on which
the demand for criminalising marital rape was built.
As mentioned before, most feminist interventions against the MRE were based on
the refrain that consent to marriage should not be equated to consent to sex. But we
have also seen that consent of the parties to the marriage plays a limited role in practice,
although Indian law deems it an essential condition for a valid marriage. Thus, a question
was raised about the inherent contradiction in demanding that forced sex in marriage be
criminalised, when forced marriage itself was unchallenged (Menon 2013). Given that
notions of compulsory marriage and compulsory sex in marriage are so intertwined with
each other and deeply entrenched both socially and legally, what would it mean to
proscribe one but leave out the other? As feminist scholar Rohini Hensman elaborated:
It is one thing to say that marital rape should be regarded as an act of domestic
violence and should be grounds for divorcethat should be relatively noncontroversial. But given that marriage is a sexual relationship, should all cases of
marital rape be punished with 7 years or more in jail? () Unless we are demanding
very clearly that the state ensure that all marriages are consensual (are we? in which
case, how?), then we can hardly demand that he should be jailed for [7] yearsthat
is simply inconsistent and unfair too. (Hensman quoted in Menon 2013, italics
in original)
Further, if there is sexual violence in marriage, surely a reasonable recourse would
be to end the marriage. Feminist scholar Nivedita Menon (2013) thus wondered if it was
preferable for a woman to have a husband in the prison than be divorced?
In response, activists Kavita Krishnan and Apoorva Kaiwar (in Menon 2013) argued
that if there was sexual violence in marriage it must be for the wife to decide whether to
file for divorce or bring rape charges against the husband or do both. Many wives may not
even report rape, for a number of reasons. Notwithstanding what course of legal action
the wife pursued, it was unreasonable for the law to deny her the option of bringing rape
charges against the husband. Additionally, the purpose behind making non-consensual
sex with wife a criminal offence was precisely to dislodge the notion, both legally and
socially, that the wifes consent to sex within marriage was either presumed or irrelevant.
From a different position, feminist legal scholar Flavia Agnes (2013) argued that
forced sex by husbands upon wives, even though fairly common in marriages, should not
be dealt with under the rape law. Agnes argued that sexual violence in marriage was not

Downloaded by [O P Jindal Global University] at 02:42 24 October 2014

THE IMPOSSIBILITY OF MARITAL RAPE

limited to forced sexual intercourse or forced insertion of penis/objects into bodily orifices
of women, acts that the law of rape criminalised. Sexual violence in marriage included acts
ranging from excessive demands for sex by the husband, at particular times such as
during menstruation or immediately after childbirth, to forcing the wife to have sex with
the husbands friends, to threatening the wife that the husband will stop having sex with
her if certain demands were not met. Such instances of sexual violence were in turn often
part of a continuum of other forms of domestic violence committed against the wife.
There was no reason, according to Agnes, why feminists should privilege penetrative
sexual violence over other forms of domestic violence, both sexual and non-sexual, while
seeking legal protection for wives. If anything, selectively placing penetrative sexual
assault on a higher pedestal simply rehearses patriarchal values attached to acts of
penetration (Agnes 2013). Further, in a context where judges were reluctant to convict
husbands for offences against wives carrying much lower sentencesand instead sent
couples for mandatory prelitigation mediationAgnes argued it was unrealistic to expect
them to convict husbands of marital rape and sentence them to seven years of
imprisonment. For Agnes, therefore, an optimal strategy was to use existing criminal
and civil law remedies against domestic violence creatively to get favourable relief for
wives facing sexual violence (Majlis Legal Centre 2013).
In a different but related context, law professor Janet Halley and others have written,
how on a range of contemporary issues pertaining to sexual harm, feminist analysis and
advocacy tends to imagine criminal law reform to operate simply by actually eliminating
precisely and only the conduct it outlaws (Halley et al. 2006, 340). Thus, in the Indian case,
those in favour of criminalising marital rape focus their attention on the MRE alone but do
not take into account the high evidentiary standards that the criminal law may demand of
the wife alleging marital rape, or how her economic claims in marriage may be affected if
her allegation of rape is not proved. Agness position, that instead of relying on the
criminal law we devote our political and legal energies into strengthening the civil law
remedies available to wives, stands out in this regard for having the force of both feminist
politics and a realistic appreciation of the legal system. At the same time, criminal sanction
against marital rapeeven if unenforced in practicemight influence the way judges and
other actors in the legal system perceive sexual violence in marriage while deciding
equitable divorce settlements or wives claims of domestic violence. This expressive
function of criminal law should not be discounted.
Reviewing the mobilisations and law reform efforts against rape in police custody by
Indian feminists in the 1980s, feminist scholar Geetanjali Gangoli notes that a narrow
understanding of custody, limited to police lock-ups and prisons, prevented feminists
from extending that analysis of power and sexual violence to institutions of family and
marriage in the subsequent years (Gangoli 2007, 8485). As a result, sexual violence
against women within the family, including marital rape, could not become a central issue
in feminist anti-rape campaigns (2007, 95). But when marital rape did appear on the
movements agenda in a major way in the recent anti-rape campaign, it was seen that
most feminist interventions focused on the MRE in isolation, bypassing a broader analysis
of how marriage exercises custodial control over wives through complex interactions
between the rules governing sexual and economic aspects of marriage. We need to
broaden the scope of our analysis of sexual violence in marriage to understand the nature
of this custodial control. The terrain of marital sexuality is much more complex than other
relationships of power in which sexual abuse takes place. After all, data from domestic

267

268

SAPTARSHI MANDAL

violence cases show that wives approaching courts with claims of sexual abuse not only
complain of non-consensual sex by husbands but also of husbands refusal to have sex
(Lawyers Collective Womens Rights Initiative 2010, 2012, 2013). This is further complicated
by the fact that marriage is a relationship of economic dependency and well-being for a
large number of women. The internal debate among feminists that I have described
above, while problematising the invocation of consent or the reliance on the criminal law
in challenging the impossibility thesis, also underlines the need for a more nuanced
rendering of how power operates in marriage.

Downloaded by [O P Jindal Global University] at 02:42 24 October 2014

Conclusion
In this article, I have tried to capture a brief period in the life of contemporary Indian
feminism when contestations over the meaning of sex, violence and marriage, and how to
translate these into concrete legislative formulations, were most sharply foregrounded.
Even though the mobilisations to repeal the MRE did not succeed, the process was
instructive for it helped underscore the fact that the challenge for feminists is no longer a
straightforward question of mobilising political support to repeal the MRE. The discourse
in which the state framed the issue of marital rape showed that the ways in which the
impossibility thesis is currently sustained are very different from its original articulation by
seventeenth- and eighteenth-century jurists. Consequently, feminist strategies to challenge the impossibility thesis must also move away from simply foregrounding legal
personhood of the wife or the legalistic notion of consent. Factors such as the nonenforcement of criminal laws regulating family life, the lower burden of proof and greater
scope for negotiation in civil law remedies, the complex interactions between criminal and
civil laws regulating marriage, divorce, property distribution, and so on, must form part of
the analysis.
To be sure, the MRE must be repealed and the struggle to do so must go on, but
alongside, I suggest that we seek a new point of entry into the marital rape debate by
returning to the questions of what is marriage and how it should be regulated by the law.
This will allow us to actively place issues of sexual and reproductive labour and equitable
property distribution in marriage, and also help us to outline both the sexual and nonsexual harms more clearly. If the feminist certainties regarding the road to marital rape law
reform seem less clear now, then I think this is the moment for feminists to theorise
marriage more rigorously, as a sexual and economic relationship.

ACKNOWLEDGMENTS
The author wishes to thank Pooja Badarinath, Rukmini Sen, the two anonymous
reviewers and the editors of this special issue for their helpful comments. All mistakes
of fact and judgement are of the authors alone.

NOTES
1.

In India this is expressed in numerous judicial holdings, such that cessation of sexual
intercourse between spouses, due to whatever reason, is a valid ground for dissolution of
marriage.

THE IMPOSSIBILITY OF MARITAL RAPE

2.

3.

Downloaded by [O P Jindal Global University] at 02:42 24 October 2014

4.

5.

6.

7.

This reasoning, however, did not extend to suicide, for self-murder according to
Blackstone infringed on the exclusive spiritual authority of the God and the temporal
authority of the king over human life, and hence was an offence of the highest order.
(1765b, 189)
For men, 18 is the age of majority, while 21 is the age of marriage. The difference in the
minimum age of marriage for men and women is on account of the different social
expectations of them in marriage. Fifteen as the age of consent for wives is the present
stage in the long history of its revision since the enactment of the Indian Penal Code. It
was 10 in 1860, which was raised to 12 in 1891, then to 13 in 1925 and finally to 15
in 1949.
I have only anecdotal evidence to support this claim. In the past, I have worked with
womens rights organisations in New Delhi, in course of which I had opportunities to
interact with magistrates during training programmes on domestic violence. On several
such occasions, I heard magistrates say: How can we grant relief to a woman on a
complaint of marital rape? It is not recognized as such by the Indian Penal Code.
Colleagues in other organisations have also heard similar arguments being made. The
other basis for my claim is Prabha Kotiswarans work on sex work and the law in India
(Kotiswaran 2012), where she argues that, in sex markets, legal outcomes result from antisex work criminal law working in combination with a range of other laws and customs
regulating tenancy, public nuisance and market practices in a legally plural field. I suspect
this is not a peculiar feature of sex markets and the insight is equally applicable to the
operation of law in other spheres.
Section 498A of the IPC makes any act of physical or mental cruelty committed against a
woman by her husband or husbands relatives an offence punishable by imprisonment for
up to three years and a fine. This criminal law provision, enacted in 1983, supplements the
2005 law-providing injunction against violence and dispossession from home, monetary
compensation and other such civil remedies addressing domestic violence.
Section 13, Hindu Marriage Act 1955; Section 2, Dissolution of Muslim Marriage Act 1939;
Section 32, Parsi Marriage and Divorce Act 1932; Section 10, Indian Divorce Act 1869; Section
27, Special Marriage Act 1954.
Under Section 377 of the Indian Penal Code, 1860, sodomy is an offence, irrespective of
the consent of the parties. The phrase non-consensual sodomy therefore might appear as
superfluous and confusing. The phrase is used by the courts to distinguish between cases
where the husband commits non-vaginal penetration with the wife with her consent and
cases in which it is without the wifes consent. Only the latterthat is, non-consensual
sodomy is a valid ground for divorce under Christian divorce law. Thus, in a 1922 case,
Smith v Smith (1922), the wife filed for divorce on the ground that her husband frequently
committed unnatural intercourse with her. The Calcutta High Court held that divorce
could not be granted since the wife had consented to such intercourse.

REFERENCES
Agnes, Flavia. 1996. Protective Legislations: The Myth of Misuse. Economic and Political Weekly
30 (16): 865866.
Agnes, Flavia. 2011. Interrogating Consent and Agency Across the Complex Terrain of Family
Laws in India. Social Difference Online 1: 116.

269

Downloaded by [O P Jindal Global University] at 02:42 24 October 2014

270

SAPTARSHI MANDAL
Agnes, Flavia. 2013. My Body, My Wish. Asian Age, February 7, Accessed March 15, 2014.
http://archive.asianage.com/debate/my-body-my-wish-864.
Anderson, Michelle J. 2003. Marital Immunity, Intimate Relationships, and Improper Inferences:
A New Law on Sexual Offenses by Intimates. Hastings Law Journal 54 (10): 14641557.
Basu, Srimati. 2006. Playing Off Courts: The Negotiation of Divorce and Violence in Plural Legal
Settings in Kolkata. Journal of Legal Pluralism and Unofficial Law 38 (52): 4175.
doi:10.1080/07329113.2006.10756591.
Blackstone, William. 1765a. Commentaries on the Laws of England, Book I. Oxford: Clarendon
Press.
Blackstone, William. 1765b. Commentaries on the Laws of England, Book IV. Oxford: Clarendon
Press.
Chandra, Sudhir. 1998. Enslaved Daughters: Colonialism, Law and Womens Rights. New Delhi:
Oxford University Press.
Code of Criminal Procedure. 1973. Government of India.
Criminal Law Amendment Act. 2013. Government of India.
Dissolution of Muslim Marriage Act. 1939. Government of India.
Dutta, Debolina, and Oishik Sircar. 2013. Indias Winter of Discontent: Some Feminist Dilemmas
in the Wake of a Rape. Feminist Studies 39 (1): 293306.
Gangoli, Geetanjali. 2007. Indian Feminisms: Law, Patriarchies and Violence in India. Aldershot:
Ashgate.
Geis, G. 1978. Lord Hale, Witches, and Rape. British Journal of Law and Society 5 (1): 2644.
doi:10.2307/1409846.
Government of India. 2013a. Report of the Committee on Amendments to Criminal Law. New
Delhi.
Government of India. 2013b. Debate of the Lok Sabha. 19 March, Lok Sabha Secretariat. New
Delhi: Government of India.
Government of India. 2013c. 167th Report on the Criminal Law (Amendment) Bill, 2012.
Department related Parliamentary Standing Committee on Home Affairs, Rajya Sabha
Secretariat. New Delhi: Government of India.
Grace Jayamani v E. P. Peter. 1982. All India Reporter Karnataka 46.
Halley, Janet, Prabha Kotiswaran, Hila Shamir, and Chantal Thomas. 2006. From the
International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work,
and Sex Trafficking: Four Studies in Contemporary Governance Feminism. Harvard
Journal of Law and Gender 29 (2): 335423.
Hindu Marriage Act. 1955. Government of India.
Hindustan Times. 2013. Marriage Not Deemed as Contract in India: Ashwani. March 9, Accessed
March 15, 2014. http://www.hindustantimes.com/india-news/mumbai/marriage-not-dee
med-as-contract-in-india-ashwani/article1-1023758.aspx.
IBN Live. 2013 Marriage Not Considered as Contract in India, Says Ashwani Kumar. Accessed
March 15, 2014. https://www.youtube.com/watch?v=QnmTVLgehng.
Indian Divorce Act. 1869. Government of India.
Indian Penal Code. 1860. Government of India.
Jain, Bharati, and Rakhi Chakrabarty. 2013. Government Justifies Exclusion of Marital Rape as
Sexual Offence in Amended Ordinance. Times of India, February 19, Accessed March 15,
2014. http://timesofindia.indiatimes.com/india/Govt-justifies-exclusion-of-marital-rape-assexual-offence-in-amended-ordinance/articleshow/18566797.cms.

Downloaded by [O P Jindal Global University] at 02:42 24 October 2014

THE IMPOSSIBILITY OF MARITAL RAPE

Kapur, Ratna. 2013. The New Sexual Security Regime. The Hindu, February 5, Accessed March
15, 2014. http://www.thehindu.com/opinion/op-ed/the-new-sexual-security-regime/art
icle4379317.ece.
Kapur, Ratna, and Brenda Cossman. 1996. Subversive Sites: Feminist Engagement with Law in
India. New Delhi: Sage.
Kotiswaran, Prabha. 2012. Dangerous Sex, Invisible Labour: Sex Work and the Law in India. New
Delhi: Oxford University Press.
Krishnan, Kavita. 2013. Why Inclusion of Marital Rape in the Ordinance in Necessary. The
India Blog. Accessed March 15, 2014. http://ibnlive.in.com/group-blog/the-india-blog/
3496/why-inclusion-of-marital-rape-in-the-ordinance-is-necessary/64302.html.
Kumari, Ved. 1999. Gender Analysis of the Indian Penal Code. In Engendering Law: Essays in
Honour of Lotika Sarkar, edited by Amita Dhanda and Archana Parashar, 139160.
Lucknow: Eastern Book Company.
Kusum Lata v Kampta Prasad. 1965. All India Reporter Allahabad 280.
Lawyers Collective Womens Rights Initiative. 2008. Staying Alive: Second Monitoring and
Evaluation Report on the Protection of Women from Domestic Violence Act 2005. New Delhi:
Lawyers Collective Womens Rights Initiative.
Lawyers Collective Womens Rights Initiative. 2009. Staying Alive: Third Monitoring and
Evaluation Report on the Protection of Women from Domestic Violence Act 2005. New
Delhi: Lawyers Collective Womens Rights Initiative.
Lawyers Collective Womens Rights Initiative. 2010. Staying Alive: Fourth Monitoring and
Evaluation Report on the Protection of Women from Domestic Violence Act 2005. New
Delhi: Lawyers Collective Womens Rights Initiative.
Lawyers Collective Womens Rights Initiative. 2011. Staying Alive: Fifth Monitoring and Evaluation
Report on the Protection of Women from Domestic Violence Act 2005. New Delhi: Lawyers
Collective Womens Rights Initiative.
Lawyers Collective Womens Rights Initiative. 2012. Staying Alive: Sixth Monitoring and Evaluation
Report on the Protection of Women from Domestic Violence Act 2005. New Delhi: Lawyers
Collective Womens Rights Initiative.
Lawyers Collective Womens Rights Initiative. 2013. Staying Alive: Sixth Monitoring and Evaluation
Report on the Protection of Women from Domestic Violence Act 2005. New Delhi: Lawyers
Collective Womens Rights Initiative.
Lazar, Ruthy. 2010. Negotiating Sex: The Legal Construct of Consent in Cases of Wife Rape in
Ontario, Canada. Canadian Journal of Women and the Law/Revue Femmes et Droit 22 (2):
329363. doi:10.3138/cjwl.22.2.329.
MacKinnon, Catherine A. 1989. Toward a Feminist Theory of the State. Harvard, MA: Harvard
University Press.
Majlis Legal Centre. 2013. Negotiating Spaces: Fine Tuning our Demand for Rape Law Reform.
Conference Briefing Paper in possession of author.
Majumdar, Pallavi. 2003. Rape Accused Proves Marriage to Complainant. Times of India,
December 9, Accessed March 15, 2014. http://timesofindia.indiatimes.com/city/delhi/
Rape-accused-proves-marriage-to-complainant/articleshow/348699.cms?
Manushi. 2013. Police and Judicial Reforms First Priority. Accessed March 15, 2014. http://
www.manushi.in/articles_manushi.php?articleId=1673.
Menon, Nivedita. 2013. The Impunity of Every Citadel is Intact: The Taming of the Verma
Committee Report and Some Troubling Doubts. Kafila. Accessed March 15, 2014. http://

271

Downloaded by [O P Jindal Global University] at 02:42 24 October 2014

272

SAPTARSHI MANDAL
kafila.org/2013/02/03/the-impunity-of-every-citadel-is-intact-the-taming-of-the-verma-co
mmittee-report-and-some-troubling-doubts/.
Parsi Marriage and Divorce Act. 1932. Government of India.
Protection of Women from Domestic Violence Act. 2005. Government of India.
Rediff News. 2013. Marital Rape Not Criminal Offence: Parl Panel Backs Govt. Accessed March
15, 2014. http://www.rediff.com/news/report/marital-rape-not-criminal-offence-parl-pane
l-backs-govt/20130301.htm.
Rumney, Philip N. S. 1999. When Rape Isnt Rape: Court of Appeal Sentencing Practice in Cases
of Marital and Relationship Rape. Oxford Journal of Legal Studies 19 (2): 243270.
doi:10.1093/ojls/19.2.243.
Sarkar, Tanika. 1993. Rhetoric against Age of Consent: Resisting Colonial Reason and Death of a
Child-Wife. Economic and Political Weekly 28 (36): 18691878.
Singh, Kirti. 2013. Separated and Divorced Women in India: Economic Rights and Entitlements.
New Delhi: Sage.
Smith v Smith. 1922. 59 Calcutta High Court 945.
Special Cell for Women and Children. 1999. Shades of Courage: Women and IPC Section 498A.
Tata Institute for Social Studies. Mumbai: Akshara.
Special Marriage Act. 1954. Government of India.
S v Modise. 2007. South Africa: North West High Court, Mafikeng. ZANWHC 73.
S v Moipolai. 2004. South Africa: North West High Court, Mafikeng. ZANWHC 19.
Uberoi, Patricia. 1997. Hindu Marriage Law and Judicial Construction of Sexuality. In Feminist
Terrains in Legal Domains: Interdisciplinary Essays on Women and Law in India, edited by
Ratna Kapur, 184209. New Delhi: Kali for Women.
Vinit Joglekar v Varsha Joglekar. 1998. All India Reporter Bombay 73.

Saptarshi Mandal is Assistant Professor at the Jindal Global Law School, Sonipat, India. In
the past he has worked with several womens rights organisations in New Delhi,
India. Saptarshi teaches, researches and writes in the areas of family law, labour law,
disability and mental health law and the legal regulation of sexual violence.