Professional Documents
Culture Documents
FINAL DRAFT
MARITAL RAPE- THE LEGAL CRIME
Section -A
I would also like to thank my librarian for helping me in gathering data for the project. Above all, I
would like to thank my parents, who from such a great distance have extended all possible moral and
motivated support for me and have always advised me to be honest in my approach towards my work.
Himanshu Verma
Under Section 375 of the IPC, which deals with rape cases, there is a surprise exception for marital rape
case. It says: Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is
not rape.
The Centre has constantly argued that marital rape cases are rarely registered, but has any one wondered
why? The reason is: No section of the IPC validates marital assault as a crime, thus the number of
complaints registered is so less.
Some special provisions such as amendments to Sections 113 B, 498A and 304Bhave paved the way for
some complaints to be registered; however, grievances filed would still be recognised as domestic
violence not amounting to rape.
In such a scenario, under what laws does the Centre expect women to file complaints in case of genuine
cases of violence? If there is no law that holds husbands guilty of practicing non-consensual sex, how can
women step forward and lodge complaints?
An article published in The Hindu in 2016 narrated the story of a woman who spent 24 years of
her life in fear of being assaulted by her husband. She lodged a domestic violence case against
her husband in 2007, but in 2015, approximately nine years after filing the complaint, she was
brutally assaulted, with injuries on her private parts.
A murderer kills the body but a rapist kills the soul is a famous quote by late Justice Krishna
Ayer, describing the perils of rape; it also indicates that a rape shall always be unwanted
exploitation of the body, even if the offender happens to be the husband of the victim.
Being married doesnt change the social rules. Just because a woman said I do to
marriage doesnt mean that she has said I do to sex whenever, wherever, and however
her husband wants it. Married sex, like all intimate, loving sex is consensual. It is a way
that two people who love each other express love and caring and communicate
tenderness
Sex should be based on respect, equality, consent, caring, and clear communication.
Also, some women may not leave out of love and loyalty to the husband, which
may override her pain and suffering. The decision to leave a person you care
about or love can be very difficult, even when the relationship is unhealthy or
violent. But it's the abuse that's wrong, not loving someone who is abusive. No
one deserves to be beaten or raped, and no one is required to live with fear and
violence. Everyone has the right to live in a safe home.
In 2006, it was estimated that marital rape could be prosecuted in at least 104
countries. Western countries outlawed it mostly in the 1980s and 1990s. Some
developing countries outlawed marital rape in the 2000s. However, in many
1
http://www.wikigender.org/wiki/marital-rape/
countries it is not clear whether or not marital rape can be prosecuted under ordinary
rape laws. In many countries marital rape is either legal, or illegal but widely
tolerated as the husbands prerogative.
Mr Cornelius Henry Mukiibi, an advocate and a lecturer in Criminal Law at Nkumba University,
thinks not only must a whole lot of evidence to support the oral statement be presented to prove
the use of force and absence of consent in marital cases if it were criminalised, but it would also
be a tough job to distinguish between genuine cases and those where disgruntled wives are trying
to settle scores.
Some of the evidence of force would be torn garments, bruises and scratches, a medical report
and evidence of STD contracted during forced encounter. Now imagine a case where the wife
sleeps unclothed, Mr Mukiibi says.
India is one of the 36 countries in the world where marital rape is legal.
Most of the countries where it is not considered a crime are in Asia, and none
of the Middle Eastern Countries recognise it as a crime.
If a woman is victim to marital rape, it would mean that she isnt raped once but there will be a
history of sexual abuse, and this can be proved by forensic evidence. There will be evidence of
Even if medical examination is inconclusive, it still
physical violence in forced rape.
cannot be used as an argument against criminalising the act as there are
other methods to prove it witness testimony, the wife recording her
husbands admission of guilt via electronic communication.
Husbands who rape their wives do not define themselves as rapists. According to them, they
give their wives a free hand to do as they please, and from where they stand, it, is more of
afailure on the woman's part to meet the contractual exchange of security and commitment
for freely available sex, hence he has reason to be angry. He does not consider her reasons
of ill-health, depression or his drunken state as valid reasons for her 'no'. When a woman
says 'no' to sex, it is considered as a challenge to the very notion of manhood around which
the society is centered. This challenge is then met by the prevalent legal system, and to Carol
Smart on the only criterion of whether consent or the lack of it is established. It is evident
from the Supreme Court's decision in Mathura's case 3that the law continues to informed
that the only way a man can understand the lack of consent is through resistance on the part
of the woman.
In U.S.A. federal states of Florida. Massachusetts, Kansas City and New York have
finally abolished the marital rape exemption.
SUGGESTION
The most serious problem in criminalizing marital rape would be that it presupposes that the
family structure is disturbed. India is said to have a social order characterized by a strong
familial ties and a low divorce rate. Hence, criminalization of family problems would only
result in the complete breakdown of a home. Indian culture is vastly different from Western
society where marriage is a contractual and temporary phenomenon. Considering the
sensitive nature of the problem these types of offenses could be dealt with by the family
courts. it is not to be denigrated as a lesser offense due to widely dispensed myths. It is true
that marital rape is difficult to prove especially when both partners are known to have
voluntarily engaged in sexual activity in the past and the issue of consent arises at a later
point when there is non- consensual sex. The present need is for the legislature and the
judiciary to actively intervene in this area, by following the recommendations of the National
Commission for Women and the draft bill suggested by them, which should be implemented
along the lines of the Canadian model that combine marital rape with the offence of assault.
The existing legislations inhibit women from reporting crimes of sexual assault, and otherwise
curtail any effective exercise of rights to judicial redress.
Hence the urgent need to amend the existing provisions of the with regard to procedure
evidence, punishment and conviction to ensure that the sexual assault is perceived as a
social evil. In conclusion marital rape has to be regarded as sexual assault and Indian society
cannot continue to tread on women in the guise of promoting social cohesion and protecting
the sanctity of marriage.