TERM PAPER: FAMILY, MARRIAGE AND KINSHIP

MARITAL RAPE
This paper examines the issue of marital rape by discussing some of the
controversies involved in examining a phenomenon which, until recently
was not viewed as problematic. This paper views marital rape as a
manifestation of gender related power dynamics. Also this is an attempt
at understanding the socio-cultural factors responsible for the marital rape
exemption, which shields husbands from prosecution for sexual assault of
their wives. Another aspect covered in this paper is the ongoing debate
over marital rape exemption, highlighting the expressed views of public
representatives and law enforcement bodies.

Submitted by: Maitreyee Shukla

Reg no. 17747

Marital Rape
The Oxford Advanced Learners' Dictionary defines rape as 'forcing somebody to have sex
with you when they do not want to, by threatening them or using violence' (Oxford
University Press, 2005. Marital Rape refers to unwanted intercourse by a man with his wife
obtained by force, threat of force, or physical violence, or when she is unable to give consent.
Marital rape could be by the use of force only, a battering rape or a sadistic/obsessive rape. It
is a non-consensual act of violent perversion by a husband against the wife where she is
physically and sexually abused.
Approximations have quoted that every 6 hours; a young married woman is burnt or beaten to
death, or driven to suicide from emotional abuse by her husband. The UN Population Fund
states that more than 2/3rds of married women in India, aged between 15 and 49 have been
beaten, raped or forced to provide sex. In 2005, 6787 cases were recorded of women
murdered by their husbands or their husbands families. 56% of Indian women believed
occasional wife-beating to be justified.
In the present day, studies indicate that between 10 and 14% of married women are raped by
their husbands: the incidents of marital rape soars to 1/3rd to among clinical samples of
battered women. Sexual assault by ones spouse accounts for approximately 25% of rapes
committed. Women who became prime targets for marital rape are those who attempt to flee.
Criminal charges of sexual assault may be triggered by other acts, which may include genital
contact with the mouth or anus or the insertion of objects into the vagina or the anus, all
without the consent of the victim. It is a conscious process of intimidation and assertion of
the superiority of men over women. Also, it seems that people believe that rape can only
occur if the perpetrator is a stranger, thus excluding acquaintance and marital rape. This poses
problems for victims of date and marital rape because they are denied the vocabulary to name
what has happened to them.

A Historical and Legal Overview of Marital Rape:

Historically, Raptus, the generic term of rape was to imply violent theft, applied to both
property and person. It was synonymous with abduction and a womans abduction or sexual
molestation, was merely the theft of a woman against the consent of her guardian or those
with legal power over her. The harm, ironically, was treated as a wrong against her father or
husband, women being wholly owned subsidiaries. Not surprisingly, thus, married women
were never the subject of rape laws. Laws bestowed an absolute immunity on the husband in
respect of his wife, solely on the basis of the marital relation.
Early Judeo-Christian tenets established rape as a legitimate means of acquiring wives.
Florence Rush writes: Judaism ordained that a bride could be legally acquired by contract,
money, or sexual intercourse, but since the church eschewed materialism, sexual intercourse
emerged as the validating factor. As early as the sixth century, Pope Gregory decreed that
"any female taken by a man in copulation belonged to him and his kindred." And since
copulation with or without consent established male possession of the female, vaginal
penetration superseded all impediments. Legal theorists followed suit, advocating unimpeded
male sexual access to women.

Lord Matthew Hale, Chief Justice of England in the seventeenth century, set the tone for rape
prosecutions with his infamous, and shockingly enduring, observation that "rape ... is an
accusation easily to be made and hard to be proved, and harder to be defended by the party
accused, though never so innocent." Hale's comment, casting the alleged rapist as a likely
victim, is far from a jurisprudential relic; it remained a mandatory jury instruction in
California rape trials until as recently as 1975 and can still be introduced in many
jurisdictions at a judge's discretion. In addition to his legendary status as the progenitor of
rapists' rights generally, Hale made a crucial contribution to marital rapists' rights specifically,
proclaiming: "[T]he husband cannot be guilty of a rape committed by himself upon his lawful
wife, for by their mutual matrimonial consent and contract the wife hath given up herself in
this kind unto the husband which she cannot retract. "'The notion that marriage entails the
wife's "irrevocable" or "implied" consent to sex formed the basis for the common law marital
rape exemption, which shielded sexually abusive husbands from criminal prosecution. Like
Hale's rape instruction this contract based, "irrevocable consent" theory endures as a defining
principal in marital rape laws.
An analysis of the contractual consent theory, if one may accept the incredible notion that an
exchange of wedding vows implies a pledge to have sex at any moment desired by one's
spouse shows that such an agreement would not survive the classical tests for an express or
implied contract. For example, according to Corbin, in order to make a contract there must be
an objective manifestation of intent to agree. A new bride would be surprised indeed to find
that she has agreed to give up her right to bodily privacy and to submit to any force, brutal or
otherwise, her new spouse might use against her. The proper remedy for breach of contract,
moreover, is damages, not forced performance. In accordance with this analysis, a husband
should seek legal redress for breach of an implied contract. Violent enforcement clearly
violates the spirit of the law. When put to close scrutiny, the contractual consent theory seems
illogical. Yet, in the words of a New Jersey Superior Court judge written in 1977, "no one has
seriously questioned the underlying authority for Hale's position, content to rest on the
statement alone."

Another historical rationale for the marital rape exemption roots its approach in property
rights. Traditional proscriptions against rape protected female chastity as a valuable asset-not
of the chaste woman, but of her father, who could trade his daughter's virginity for economic
or social gain from a prospective suitor. Husbands, too, had a property interest in their wives'
fidelity. Consequently, no legal basis existed to prosecute husbands for raping their own
wives, since the husband infringed no man's property rights.
Susan Estrich, author of the ground-breaking Real Rape, agrees that a husband's right to
sex is rarely challenged: "Men in appropriate relationships enjoy a broad right to seduce. Men
in the most appropriate relationship of all, marriage, have enjoyed an absolute right.
Long perceived as a crime of sexual passion, rape is now widely regarded as an act of
violence and is prosecuted as such. Rape within marriage, however, falls into a grey area of
the Indian, and a major chunk of other criminal justice systems.
The common practical reasons given for marital rape exemption are that marital rape is less
serious than other types of rape, that extending the law of rape to married couples would
undermine the institution of marriage, that it would encroach upon marital privacy and hinder

reconciliation, that it would allow vindictive wives the opportunity to make false allegations
of rape, and that rape within marriage would be very difficult to prove.
Theoretical framework:
Central to feminist theorising is the assumption that realities are socially created and that
there is a close link between oppression and practices of the individual and society at large.
Radical feminist theory considers the biological structure of women as the fundamental base
of women's subordination and oppression. The central political issue for radical feminists is
for women to reclaim control of their own bodies from men. On the other hand, liberal
feminists stress women's rights to choice and self-determination. Their political objective is
to create material conditions necessary to ensure individual women's self-determination. The
pertinence of these theories to this briefing is that a rape-free society will be possible if
women create the material conditions necessary to ensure their safety and reclaim control of
their own bodies, while at the same time challenging the social constructions of masculinity
and femininity.
Tomaselli (1986) argues that the sex husbands inflict on their wives would count as rape if
patriarchal law did not explicitly deny the crime of rape within marriage. Because of the
patriarchal gender order, husbands and boyfriends still demand sex from their non-compliant
wives and girlfriends without facing any criminal charges because date and marital rape are
not recognised. 3 The confusion surrounding what counts as rape has led to a silence
regarding the perpetration of these forms of rape. Within the context of marriage, Russell
(1990) argues that men who rape their wives are patriarchal and feel a sense of ownership of
them. Bergen's (1996) research indicates that an entitlement to sex and the attempt to control
wives through sexual violence were commonly reported by women as the motivating factors
of their husbands who raped them.
Patriarchy, true to its definition in the Indian context, prevails in the form of domination, a
mode of family coercion and cultural construct of property ownership. It is a form of
appropriation of women's labour, sexuality and fertility and it is a form of the right of the
male which should be enforced by physical violence - including rape which is the ultimate
and grossest form of violent expression of patriarchal and class oppression or socio-economic
sanctions or both.

Marital rape in Indian context

Advancing well into the timeline, marital rape is not an offence in India. Despite
amendments, law commissions and new legislations, one of the most humiliating and
debilitating acts is not an offence in India. A look at the options a woman has to protect
herself in a marriage, tells us that the legislations have been either non-existent or obscure
and everything has just depended on the interpretation by Courts.
Section 375, the provision of rape in the Indian Penal Code (IPC), has echoing very archaic
sentiments, mentioned as its exception clause- Sexual intercourse by man with his own
wife, the wife not being under 15 years of age, is not rape. Section 376 of IPC provides
punishment for rape. According to the section, the rapist should be punished with
imprisonment of either description for a term which shall not be less than 7 years but which
may extend to life or for a term extending up to 10 years and shall also be liable to fine unless
the woman raped is his own wife, and is not under 12 years of age, in which case, he shall be

punished with imprisonment of either description for a term which may extend to 2 years
with fine or with both.
This section in dealing with sexual assault, in a very narrow purview lays down that, an
offence of rape within marital bonds stands only if the wife be less than 12 years of age, if
she be between 12 to 16 years, an offence is committed, however, less serious, attracting
milder punishment. Once, the age crosses 16, there is no legal protection accorded to the
wife, in direct contravention of human rights regulations.
How can the same law provide for the legal age of consent for marriage to be 18 while
protecting form sexual abuse, only those up to the age of 16? Beyond the age of 16, there is
no remedy the woman has.
The wifes role has traditionally been understood as submissive, docile and that of a
homemaker. Sex has been treated as obligatory in a marriage and also taboo. Atleast the
discussion openly of it, hence, the awareness remains dismal. Economic independence, a
dream for many Indian women still is an undeniably important factor for being heard and
respected. With the women being fed the bitter medicine of being good wives, to quietly
serve and not wash dirty linen in public, even counseling remains inaccessible.
Legislators use results of research studies as an excuse against making marital rape an
offence, which indicates that many survivors of marital rape, report flash back, sexual
dysfunction, emotional pain, even years out of the violence and worse, they sometimes
continue living with the abuser. For these reasons, even the latest report of the Law
Commission has preferred to adhere to its earlier opinion of non-recognition of rape within
the bonds of marriage as such a provision may amount top excessive interference wit the
marital relationship.
A marriage is a bond of trust and that of affection. A husband exercising sexual superiority,
by getting it on demand and through any means possible, is not part of the institution.
Surprisingly, this is not, as yet, in any law book in India.
The very definition of rape (section 375 of IPC) demands change. The narrow definition has
been criticized by Indian and international womens and children organizations, who insist
that including oral sex, sodomy and penetration by foreign objects within the meaning of rape
would not have been inconsistent with nay constitutional provisions, natural justice or equity.
Even international law now says that rape may be accepted a s the sexual penetration, not
just penal penetration, but also threatening, forceful, coercive use of force against the victim,
or the penetration by any object, however slight. Article 2 of the Declaration of the
Elimination of Violence against Women includes marital rape explicitly in the definition of
violence against women. Emphasis on these provisions is not meant to tantalize, but to give
the victim and not the criminal, the benefit of doubt.
Marital rape is illegal in 18 American States, 3 Australian States, New Zealand, Canada,
Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia. Rape
in any form is an act of utter humiliation, degradation and violation rather than an outdated
concept of penile/vaginal penetration. Restricting an understanding of rape reaffirms the view
that rapists treat rape as sex and not violence and hence, condone such behaviour.
The importance of consent for every individual decision cannot be over emphasized. A

woman can protect her right to life and liberty, but not her body, within her marriage, which
is just ironical. Women so far have had recourse only to section 498-A of the IPC, dealing
with cruelty, to protect themselves against perverse sexual conduct by the husband. But,
where is the standard of measure or interpretation for the courts, of perversion or
unnatural, the definitions within intimate spousal relations? Is excessive demand for sex
perverse? Isnt consent a sine qua non? Is marriage a license to rape? There is no answer,
because the judiciary and the legislature have been silent.
The 172nd Law Commission report had made the following recommendations for substantial
change in the law with regard to rape.
1. Rape should be replaced by the term sexual assault.
2. Sexual intercourse as contained in section 375 of IPC should include all forms of
penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and
object/vaginal.
3. In the light of Sakshi v. Union of India and Others [2004 (5) SCC 518], sexual
assault on any part of the body should be construed as rape.
4. Rape laws should be made gender neutral as custodial rape of young boys has been
neglected by law.
5. A new offence, namely section 376E with the title unlawful sexual conduct should
be created.
6. Section 509 of the IPC was also sought to be amended, providing higher punishment
where the offence set out in the said section is committed with sexual intent.
7. Marital rape: explanation (2) of section 375 of IPC should be deleted. Forced sexual
intercourse by a husband with his wife should be treated equally as an offence just as
any physical violence by a husband against the wife is treated as an offence. On the
same reasoning, section 376 A was to be deleted.
8. Under the Indian Evidence Act (IEA), when alleged that a victim consented to the
sexual act and it is denied, the court shall presume it to be so.
The much awaited Domestic Violence Act, 2005 (DVA) has also been a disappointment. It
has provided civil remedies to what the provision of cruelty already gave criminal remedies,
while keeping the status of the matter of marital rape in continuing disregard. Section 3 of the
Domestic Violence Act, amongst other things in the definition of domestic violence, has
included any act causing harm, injury, anything endangering health, life, etc., mental,
physical, or sexual. It condones sexual abuse in a domestic relationship of marriage or a livein, only if it is life threatening or grievously hurtfulSection 122 of the Indian Evidence Act
prevents communication during marriage from being disclosed in court except when one
married partner is being persecuted for n offence against the other. Since, marital rape is not
an offence, the evidence is inadmissible, although relevant, unless it is a prosecution for
battery, or some related physical or mental abuse under the provision of cruelty. Setting out to
prove the offence of marital rape in court, combining the provisions of the DVA and IPC will
be a nearly impossible task.

In India, people holding important and responsible positions have made some comments
which clearly show the insensitive and patriarchal attitude still prevalent regarding marital
rape.
Judge Virender Bhatt recently heard the case of a woman who was raped by her husband. The
woman testified that she was drugged and forced to marry the man before he forced himself
upon her sexually. So not only was the sex non-consensual, but so too was the marriage. In
his ruling, Judge Bhatt dismissed the womans claim of being drugged, and said that even if
the sex wasnt consensual, it didnt qualify as rape under Indian law. Heres his official
decision:
The prosecutrix (the wife) and the accused (the husband) being legally wedded husband and
wife, and the prosecutrix being major, the sexual intercourse between the two, even if
forcible, is not rape and no culpability can be fastened upon the accused.
Late in 2013, during the proceedings of another rape case he presided over, Bhatt said,
Girls are morally and socially bound not to indulge in sexual intercourse before a proper
marriage, and if they do so, it would be to their peril and they cannot be heard crying later
that it was rape.
In february 2015, A Delhi-based MNC executive had told the court that her husband
repeatedly resorted to sexual violence but she was helpless as marital rape was not a crime in
India.
"You are espousing a personal cause and not a public cause...This is an individual case," a
bench of justice AR Dave and justice R Banumathi said, refusing to take up her plea. The
woman had challenged the validity of an exception to Section 375 of the IPC that says sexual
intercourse by a man with his wife, who is 15 or above, is not rape even if it is without
consent.
The government, after this judgement justified its decision not to include marital rape as a
sexual offence in the Criminal Law Amendment Ordinance, 2013, saying that this could
weaken the institution of marriage, but admitted that it was still grappling with the tricky
issue of failed live-in relationships where an ex-partner is accused of rape committed under
the false promise of marriage. Union home secretary R K Singh, in his reply to the panel
headed by BJP leader M Venkaiya Naidu, clarified that marital rape was left out from the
purview of the Ordinance as marriage presumes consent. He added that government decided
against recognizing marital rape as this would go against the traditional family system in
India where a marriage is seen as a steadfast institution. The official is said to have articulated

the government's apprehensions that accusations of rape might be made in the wake of
marital disputes, causing irreparable damage to the institution of marriage.

Some case studies 1

Times Of India reported the following two cases:
For many years after her marriage, Rashmi believed that frequent vaginal bleeding after
intercourse was a normal phenomenon. Married at the age of 17, her husband would assault
her six to seven times a day.
At 19, when she conceived her first child, she was forced to have intercourse till the eighth
month of her pregnancy. However, things took a turn for the worse when barely 15 days after
she had a C-section surgery, her husband assaulted her so badly that it led to the rupture of
her stitches.
She wanted to raise her voice against her husband but was mocked by her mother. "This is
normal. Husbands don't rape you? They are allowed to do all that," she was told. Rashmi,
now 27, is mother of two daughters and is fighting a case of domestic violence in Delhi's
Saket court. Rashmi's police complaint, however, doesn't mention sexual assaults. "I went to
the police when they assaulted me for delivering a girl child. They stopped giving me food
and I was given old clothes to wear. They then started asking me to tell my family to arrange
for my and my daughter's expenses,"
Another victim, Reema, told TOI how her husband transmitted an STD (sexually transmitted
disease) to her that resulted in severe vaginal infection leading to boils. Despite her
complaints, her husband refused to get himself treated and continued to assault her, leaving
her in pool of blood on several occasions. "He would simply tell me it is you who are in pain,
not me," said Reema (26), a resident of a slum cluster in Tigri colony in south Delhi.
Reema's complaint too does not have any mention of "sexual assault". She too is fighting a
case of domestic violence and dowry harassment.
Noted criminal lawyer Tarun Goomber says that due to societal and cultural reasons in most
cases, Indian women avoid sharing details of sexual abuse by their husbands.
"Most women restrict their complaints to mental and physical harassment. Very few come
forward to share cases of marital rape. Also, even if they do, there is no law that can book a
husband for rape if the wife's age is more than 15 years," he said.

Conclusion
Catherine MacKinnon (1989) argues that laws, especially laws regarding rape and sexual
harassment, are a reflection of male dominance. In a social system where women are
1 These case studies have been compiled using secondary data, i.e, by
newspaper reports. All names are changed by the papers to protect the
anonymity of the complainaints.

structurally inferior to men and deprived of power, men create laws that reflect this social
system and, in turn, perpetuate womens subordination. As groups gain economic and
political power, however, laws are modified to reflect their interests. For example, in response
to conflicts and contradictions brought about by the expansion of womens rights following
suffrage, lawmakers began to alter some laws governing women. Thus, since an increase in
womens power is associated with the passage of laws favourable to women, spousal rape
exemptions should become less common as the power differential between men and women
decreases. Susan Griffin, a feminist poet, differentiated rape from other violent crimes such
as murder in her famous essay, "The Politics of Rape." She defined sexual violence as a
specifically political act symbolizing and propagating the gender hierarchy. Therefore, for the
recognition of marital rape as an act of sexual violence, this particular power structure needs
to change
Marriage does not thrive on sex; and the fear of frivolous litigation should not stop protection
from being offered to those caught in abusive traps, where they are denigrated to the status of
chattel. Apart from judicial awakening; we primarily require generation of awareness. Men
are the perpetrators of this crime. Educating boys and men to view women as valuable
partners in life, in the development of society and the attainment of peace are just as
important as taking legal steps protect womens human rights, says the UN. Men have the
social, economic, moral, political, religious and social responsibility to combat all forms of
gender discrimination. . It is about the fundamental design of the marital institution that
despite being married, she retains an individual status, where she doesnt need to concede to
every physical overture by her husband. Dignity remains with an individual, irrespective of
marital status.

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