MARITAL RAPE - AN ACT FREELY COMMITTED

INTRODUCTION

In India, marriage is considered as a sacrosanct relationship between two people. It is said that
in a marriage couple vows to keep each other happy, to support each other and to respect each
other. But the patriarchal society in India has failed to understand this fundamental thought
behind the concept of marriage. Indian history has shown that several traditions and customs
had been practiced which degraded, oppressed and punished women just because of their
gender. For example- the practice of sati, women restricted to household work, no education
for women, child marriages, dowry system etc. Especially, in case of marriages, the men seem
to have assumed privileges for themselves, that women would comply to their husband’s order
of sexual intercourse on their demand1. This can also be called as marital rape.

Marital rape issue is becoming a major cause of concern in India in recent years. According to
a report of NFHS-3, there had been 6,590 cases of spousal violence out of which only 0.6%
cases were reported.2 This is one of the major basic human right violations which is being
allowed to occur in our country without any opposition. This paper is going to focus on the
urgent need for criminalizing marital rape in India. This paper also focuses on following things-

 History of Marital rape issue

 Its Status Quo in the Section 375 of the Indian Penal code
 Reasons as to why the law hasn’t been implemented
 Recommendations of JS Verma committee regarding marital rape
 Justifications and suggestions to the new law of marital rape that is to be introduced

1
Amanath Khullar, What Petitioners Have Argued While Seeking to Criminalise Marital Rape, THE WIRE, (31
August 2017), https://thewire.in/172483/marital-rape-case-section-375/.
2
LIVEMINT(2017),
http://www.livemint.com/r/LiveMint/Period2/2016/03/22/Photos/w_plainfacts_violence2.jpg.

1
DISCUSSION

Before going into further details, it is important to understand about the concept of Marital
rape. Marital rape means sexual intercourse without consent of woman. It is also called rape
committed by one partner or spouse against another.3Marital rape is classified into three types.
They are as follows-

 Battering rape- In this the women face sexual as well as physical violence. Some of the
victims of this rape may suffer a mental breakdown or are battered. Majority of the
victims fall under this category.
 Force only rape- In this the husband uses force, which is sufficient enough to coerce
the wives. These assaults usually occur after woman has refused to have sexual
intercourse.
 Obsessive rape- This type of assaults is usually considered as sadistic in nature. It
involves use of torturous techniques along with sexual acts which are physically
violent.4

Legal position of Marital rape in India

The current law regarding rape is stated in Section 375 of the Indian Penal Code. In this section,
second exception to rape law plays a vital role. It states the following- “Sexual intercourse by
a man with his own wife, the wife not being under eighteen years of age, is not rape.”5

This exception has been prevalent in India due to the common law system practiced in India
and surprisingly, post-independence the lawmakers did not pay heed to remove this exception
provided against marital rape. The concept of implied consent was given as a justification for
immunity against marital rape. This was in the year 1736, Matthew Hale declared in his
judgment – ‘The husband cannot be guilty of rape committed by himself upon his lawful wife,
for by their mutual matrimonial consent and contract the wife hath given herself up in this kind
unto her husband which she cannot retract’.6

The very nature of the judgment proves that it regards women as property of their husbands,
thus showcasing the disrespectful way in which the women are being treated after marriage.

3
Zoe, Marital Rape, (May 25, 2008), http://rapeinfo.wordpress.com/2008/05/25/marital-rape/.
4
Marital Rape, https://www.lawteacher.net/free-law-essays/family-law/marital-rape.php.
5
Indian Penal Code, 1860, Section 375.
6
Supra note 4, at 2.

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Arguments as to why marital rape should not be criminalized

Though marital rape is one of the heinous crimes which is being committed openly, still there
are several reasons being justified for its non-criminalization. They are as follows-

1. First justification given is that it is a prevalent custom that is being practiced in India.
The women were considered to be economically, physically, socially and sexually
subordinate to men which led to the doctrine of suppressing the rights of women after
marriage. 7
2. It is said that the concept of marital rape as understood internationally, cannot be
applied in India due to various factors such as illiteracy, poverty, customs, religious
beliefs, mindset of people, etc.8
3. The Central Government argues that by criminalizing marital rape the husband might
be harassed by their wives, as they might use this law maliciously, thus destabilizing
the institution of marriage. 9
4. It is argued that marital rape is quite uncommon and furthermore it is very difficult or
is impossible to provide evidence against it, thus adding further burden to the already
overburdened legal system.
5. The most important point is the argument that women do have legal recourses through
acts such as Domestic Violence Act 2005, Section 498A of the Indian Penal Code and
Protection of Children from Sexual Offences Act, etc. But by closely reading the acts
or sections, the following things are understood -
o Under Domestic Violence Act, a wife gets only civil protection against forced
sexual intercourse by husband on the grounds of cruelty. So, the husband is not
tried under the criminal law, thus saved from criminal prosecution. 10
o Under Section 498A of the Indian Penal Code it is stated that it is a criminal
offence if a husband or any member of his family treats the wife

7
Legistify, India Is One Of 36 Countries Where Marital Rape Is Not A Crime. Here Are The Changes We
Need,THE BETTER INDIA (July 26, 2017), https://www.thebetterindia.com/109672/marital-rape-an-
unrecognized-evil/.
8
Deya Bhattacharya, SC Says Marital Rape Can’t Be Considered Criminal Tradition Doesn't Justify Assault Child
Marriage (October 11, 2017), ://www.httpfirstpost.com/india/sc-says-marital-rape-cant-be-considered-criminal-
tradition-doesnt-justify-assault-child-marriage-3917749.html.
9
Tanima Biswas and Anindita Sanyal, Marital Rape As Crime Will Hit Institution Of Marriage: Centre To
CourtNDTV (2018), https://www.ndtv.com/india-news/marital-rape-as-crime-will-hit-institution-of-marriage-
centre-to-court-1743480.
10
Domestic Violence Act,2005.

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 cruelly.11Though cruelty hasn’t been defined in the section12 but it also includes
husband’s continuous demand for sexual intercourse. But the main drawback of
this section is that it provides for imprisonment of only 3 years and fine, which
shows this law is not strong enough and is very lenient.

Laws relating to Marital rape in other countries

 England- Before 1991, England did not have law against marital rape as it still pursued
the Hale’s theory of implied consent. But in 1991, in the case of R v R13,the House of
lords overturned its decision stating the reason that- ‘marriage in modern times regarded
as a partnership of equals, and no longer one in which the wife must be the subservient
chattel of the husband.’
 USA- In USA, the lawmakers were not ready to repeal the law exempting the husband
from being criminally prosecuted for marital rape. But in the case of ‘The People of the
State of New York v Mario Liberta’14 it was declared that there was no need for
differentiation between marital and non-marital rape. Currently, all the 50 states of USA
have criminalized marital rape as stated under the Model Penal Code.15
 South Korea-Earlier in South Korea, the Supreme Court held that there could not be
existence of marital rape. But as the years passed by, the thinking changed. The main
issue was relating to the term “ganeum", which means rape in Korean, which was
defined as any form of forcible form of non-marital sexual intercourse. Which means
married women are not included in this definition. But the word "ganeum”, means
sexual intercourse in general and the term women included in this definition means any
women, irrespective of whether she is married or not, was the interpretation of the
Supreme Court. There was a unanimous decision by all the judges in this matter, thus
leading to criminalization of marital rape.16

There are several other countries like Columbia, Mexico, Sri Lanka which have proposed laws
relating to marital rape but are still working on it. The changes in laws relating to marital rape

11
Indian Penal Code, 1860, Section 498-A.
12
Shobha Rani vs Madhukar Reddy, 1 1010 (1988).
13
R v. R, 1991 ALL E.R. Rep. 4at 481.
14
The People of the State of New York v. Mario Liberta, 64 N.Y. 152(1984).
15
Model Penal Code, HEINONLINE(2016), https://home.heinonline.org/titles/American-Law-Institute-
Library/Model-Penal-Code/?letter=M.
16
Kim Won-Chul, In landmark case, Supreme Court rules marital rape a criminal act,HANKYOREH (May 17,
2013), http://english.hani.co.kr/arti/english_edition/e_national/587926.html last seen on 30th August 2013.

4
in so many countries show the realization and change in attitude of the people towards these
archaic laws which are oppressive for women.

Justice Verma Committee’s recommendation regarding marital rape

In the year of 2013, A committee was constituted which was headed by Justice JS Verma,
Former Chief Justice of Supreme Court. It also included the following the members- Justice
Leila Seth, Former Chief Justice of Himachal Pradesh High Court and Gopal Subramaniam,
Former Solicitor General of India.

The committee was set up to give recommendations regarding the amendments needed in the
criminal law to fast track the trials and to make more stringent laws against the criminals who
have been accused of committing sexual assault against women.17

The committee gave the following stance on the matter of marital rape’s application in India-

The committee regarded exemption to marital rape as one of the out dated notions of marriage
which is still prevalent in the 21st century. With reference to the judgment of R v R, it gave the
stand of considering marriage as partnership of equals. It also gave the reference of judgment
of European Commission of Human Rights in the case of C.R. v UK18, which stated that rape
is a rape irrespective of whether the accused was or is having any kind of relationship with the
victim. Further, this judgment has been given statutory recognition in Criminal Justice and
Public Order Act 1994. Also, in Australia, the exception to marital rape has been removed from
all the jurisdictions after passing of legislative legislation.

The committee also looked into the matter of seriousness regarding the crime of marital rape.
There might be a possibility that the judges or the lawmakers might consider it as a less serious
crime than other kinds of rape, as it happened in South Africa.19

After citing of several laws and the cases involved in various countries it had recommended
the following changes to be implemented-

i. The exception for marital rape be removed.

ii. The law ought to specify that:

17
Justice Verma Committee Report, PRS (2017), http://www.prsindia.org/parliamenttrack/report-
summaries/justice-verma-committee-report-summary-2628/.
18
CR v. UK, 1997 ECHR at 1.
19
S v. Moipolai, [2004] ZANWHC at 19.

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  A marital or other relationship between the perpetrator or victim is not a valid defense
against the crimes of rape or sexual violation;
 The relationship between the accused and the complainant is not relevant to the inquiry
into whether the complainant consented to the sexual activity;
 The fact that the accused and victim are married or in another intimate relationship may
not be regarded as a mitigating factor justifying lower sentences for rape.20

Justifications regarding criminalization of marital rape

After taking a look into the present laws and the status quo of marital rape in other countries it
is understood that the exception given to marital rape in India is not justified. The rape laws
require changes as they are in a complete mess due to various statutes or acts, thus leading to
confusion among the people. The reasons as to why laws require change are as follows-

 Article 14 of the Indian constitution states” Equality before law: The State shall not
deny to any person equality before the law or the equal protection of the laws within
the territory of India Prohibition of discrimination on grounds of religion, race, caste,
sex or place of birth21.” When this is applied in the case of marital rape it is clearly seen
that married women are not given equality in addressing their grievances of being a
victim in court of law as well as not provided laws which can protect them from marital
rape. Also, it is important to state here that the current rape laws also discriminate
women on the basis of marital status. This also comes under the ambit of article 14 of
the Indian constitution. Also, it is seen that in the society a person is divided into several
roles with which comes responsibilities and duties. Here married woman is idealized if
she fulfills the needs and desires of her husband, whenever possible. So, wife should be
treated as an autonomous individual who requires her own identity as well as her own
will over any action that is to be taken which includes her.
 Article 15(1) of the Indian Constitution states that- “The State shall not discriminate
against any citizen on grounds only of religion, race, caste, sex, place of birth or any of
them”22.When this article is being applied to the existing rape laws it is found that they
are discriminatory in nature. This is because the law discriminates between the crime
being committed against married and non- married women.

20
Supra note 17.
21
INDIA CONST. art. 14.S
22
INDIA CONST.art. 15, cl. 1.

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  The marital rape concept can also extend to the ambit of article 21 which states
“Protection of life and personal liberty No person shall be deprived of his life or
personal liberty except according to procedure established by law.”23 The exception of
marital rape clearly devoid married women’s right to live a life with full respect and
complete dignity in the society. This addresses the issue of violation of basic human
rights that should be available to any person irrespective of their gender. The ambit of
article 21 was taken into consideration in the case of State Of Maharashtra And Anr. vs
Madhukar Narayan Mardikar24. The Honorable Judges held that every woman is
entitled to her sexual privacy.
 The fundamental duties stated in the article 51A of the Indian Constitution are not
binding but do have a persuasive value. In Article 51A (e) it is stated as follows- “to
promote harmony and the spirit of common brotherhood amongst all the people of India
transcending religious, linguistic and regional or sectional diversities; to renounce
practices derogatory to the dignity of women.”25Thus, to respect our Fundamental
duties it becomes a matter of importance to make laws regarding marital rape.
 India has also a signatory to the United Nations Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW), which views that discriminatory
laws against women violates their rights to lives with respect and dignity. Also, this
committee further passed the Resolution No. 1995/85 of 8-3-199526 which
recommended that marital rape should be criminalized. By not criminalizing marital
rape, India’s participation in such committees is seen as an irony.
 It is to be understood that not every religion considers marriage as contract. Thus, there
cannot be an interpretation that the wife has given an implied consent for having sexual
intercourse during their marriage. Even if marriage is considered as a contract, like in
Muslim law, consent plays an important role. According to the Indian Contracts Act
1860, Section 14, “Consent is said to be free when it is not caused by coercion, undue
influence, fraud, misrepresentation or mistake.”27 In case of marital rape it is seen that
there is existence of coercion and undue influence, thus making the contract void. Thus,
the argument of implied consent fails completely.

23
INDIA CONST.art. 21.
24
A.I.R 1991 S.C. 207
25
INDIA CONST.art.51, cl. A.
26
Ms. Dubravka Šimonović,Convention On The Elimination Of All Forms Of Discrimination Against Women -
Main Page( December 18, 1979), http://legal.un.org/avl/ha/cedaw/cedaw.html.
27
Indian Contracts Act, 1860, Section 14.

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  The courts should also take into consideration the aftermath and the long-term effects
of marital rape on married woman. Married women are not only assaulted physically
but are also affected mentally. Most of them are traumatized and require months of
counseling to live a normal life again. It is a very difficult phase that the married women
have to go through. Citing the case of Prahalad v State of Haryana, Justice A.N. Jindal
stated that “It has to be borne in mind that an offence of rape is basically an assault on
the human rights of a victim. It is an attack on her individuality.” The courts need to
understand the gravity of the situation and the conditions that the victim has to go
through while facing the society. Also, in the case of The Chairman, Railway Board v.
Chandrima Das28, it was held that rape is not just a crime stated under the Indian Penal
Code but is also crime against the society as a whole.
 One of the weakest arguments presented by the critics is that the law might be used
maliciously by the wives against their husband’s. But it doesn’t make any sense. There
are several other crimes such as murder, fraud, etc. in which many people are falsely
accused and are later acquitted. But have the laws been edited or removed? No, they
have not. So, this argument becomes debilitated.
 It has been argued that by criminalizing marital rape the government might interfere
into the personal sphere of the husband and wife as it is their personal choice to live
together or not. So, there should be no laws that interfere with decision making in a
marriage. But it should be realized that by enacting Domestic Violence Act 2005, laws
did enter into the personal sphere of marriage through civil courts. So, it is proved that,
there nothing new that is being introduced through the criminalization of marital rape.
 The most important argument given by several people is that proper evidence cannot
be provided to prove marital rape. But in the case of Om Prakash v Dil Bahar29, that a
rape accused could be arrested on the sole basis evidence of the victim even if the
medical evidence does not prove it. Also, it needs to be understood that marital rape is
not a one-time act. There is a long history behind such sexual assaults. During such
assaults there is physical violence or forced rape which can be proved through forensic
evidence.

28
(2002) 2 S.C.C. 465 (India)
29
Om Prakash v. Dil Bahar, (2006) 9 S.C.C. 695 (India).

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Suggestions regarding the new law regarding marital rape

1. First, the exception provided in the section 375 of the Indian Penal Code regarding
marital rape needs to be removed.
2. The laws regarding rape laws in India needs to be revised and should be made uniform
so as to avoid confusion and to provide same punishment to each offender irrespective
of the offender’s marital status.
3. The courts or the lawmakers should ensure a proper as well as an acceptable mechanism
of determining whether a married woman has been raped by her husband or not to
ensure proper justice to both the husband and wife. For this, under the following
conditions an act of forced sexual intercourse should be considered as marital rape-
 When there is an irretrievable breakdown of marriage
 When there is a de facto judicial separation
 When there is a proper judicial separation
 When the wife is ill or incapable of having sexual intercourse
4. The victims of marital rape should be given an opportunity to file legal proceedings
against their husbands both under civil and criminal courts.
5. The victims should also be given an option to obtain divorce from her husband is found
guilty of marital rape. However, if she is willing to continue her marital relationship,
then she may be allowed to do so.
6. Also, if marital rape is proven, the custody of minor children, if any, as a first preference
will be given to the spouse upon whom the crime has been committed. The minor
children must also be given maintenance from the spouse who committed crime as
according to the section 125 of Criminal Procedure Code or the personal law applicable.
7. If either of the parents are unable to support or take care of their minor children, then a
guardian must be appointed for them so that they are affected by the ongoing
proceedings as it is difficult for them to face the ongoing turmoil in the family and may
affect them in a bad way.
8. These changes should be made in the Indian Penal Code as well as in the matrimonial
laws prevailing in India.

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Conclusion

It is a sad but a true fact that the matter regarding marital rape is not taken seriously by the
present government. It is seen that the government is trying to defend the exception to marital
rape by justifying that the criminalization of marital rape cannot be applied in Indian scenario.
Also, it is shocking to hear statements from various imminent personalities like Mr. Swaraj
Kaushal, former governor of Mizoram, senior advocate and husband of foreign minister
Sushma Swaraj who tweeted that -"There is nothing like marital rape. Our homes should not
become police stations...There will be more husbands in the jail, than in the house."30

This shows an urgent need for not only bringing laws for criminalizing marital rape but also a
change in the thought process prevailing in the country. The existing patriarchal society needs
to change its attitude towards women and allow women to live freely at their own will. Men
should treat women equally and not consider them weak. Also, the masses should be educated
regarding the seriousness of rape as a crime and the main objective behind the criminalization
of marital rape, so as to remove the existence of the myth regarding marital that is existing in
our country.

We live in the 21st century where we see our country striving to be one of the powerful nation
in terms of economy, military, allies, etc. but how is this possible if the country does not have
proper implementation of laws regarding the protection of women in the country. Today the
condition of women in the country also plays an important factor while considering the
progress that country is making. So, it is important for the lawmakers of the country to open
their eyes and take steps towards criminalization of marital rape in the country and allow
married women to live a life with assurance that she will be protected against it.

The recent case of Independent Thought v Union of India31 it was declared by the Supreme
Court, that any man is said to commit rape if he has sexual intercourse with a woman if her age
is under 18 years of age i.e. minor, irrespective whether the consent was given or not. This
case’s judgment has given some ray of hope that soon in the near future there will be
criminalization of marital rape for adults too. It is very important for everyone to remember the
wise words said by late Justice Krishna Ayer- “A murderer kills the body but a rapist kills the
soul”.

30
Supra note 9.
31
Independent Thought v. Union of India, (2017) 10 S.C.C. 800 (India).

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