COVER PAGE

Title of the submission- Marital rape: when rape is not a crime

Name of the author- Shubhangi Sharma
Designation of the author- 3rd year Law Student, Lloyd law college.
 ABSTRACT
We are still a nation where the rape offenders are punished and the perpetrators of forced sex
roam around unfettered. Yes, marital rape which is still legal in India and where the dignity and
self-respect of wives are brutally murdered everyday within the four walls of her matrimonial
home. Marriage is a sacred bondage between a husband and a wife, where a wife left behind
everything and enters the world of husband. Marital rape is like a scar on the sacrosanct
institution of marriage and the worst kind of rape, because it is committed by someone a women
knows, love or trust. Is just reduces the women to the status of an object which use merely for
sexual pleasure. In India, they are treated as husband’s property, which husband can use the way
he wants.

The women has given the right to fight for the protection when the violators are outsiders, but
when the criminals of her bodily integrity is her own husband with whom she is married with all
rituals, such protection is withdrawn by the legislators. There is a curious silence surrounding
sexual violence towards wives as wife, children and family are regarded as private concerns. The
paper discusses various concepts regarding rape and specifically marital rape and throws light on
some critical and burning truths of our modern society‟. The brutality which happens with every
second women of our nation must be criminalized through the legislation. Taking into account
the broadness of the topic, doctrinal research method has been adopted for the successful
completion of this paper
 Marital rape: when rape is not a crime
MARITAL RAPE- UNDERSTANDING THE PROBLEM

Is marital rape not a crime? Is marriage, a license to rape? Brutal acts against women have been
rising tremendously in India in the past few years. Harassment, molestation and rapes are being
reported on a daily basis. News is flooded with such reports. With a lack of strict rules and
prompt response mechanism, many people with criminal records still roam freely. However there
is one particular offence that is grossly overlooked, free from any prosecution by law; the issue
of ‘marital rape’. Marital rape also known as spousal rape or partner rape. Marital rape is not a
dirty secret, it is an abominable crime. Marital rape refers to the act of using and abusing a
women’s body for sexual pleasure without her express or implied consent is violative of not only
individual’s dignity but also of the society as a whole. Its revolting to one’s thought that your
body is being used forcefully for someone’s sexual pleasure. It not only destroys a victim
physically but also psychologically.

According to research, the spousal rape victims are more likely to be raped multiple times.
Unfortunately, this means the victims of marital rape may suffer the most long term effects
psychologically and sometimes physically. Spouse rape can also be difficult to prosecute and this
put the victim into additional stress. In spite of the historical myth that rape by one’s own partner
is a relatively insignificant event causing little trauma, research indicates that marital rape often
has severe and long-lasting consequences for women. The physical effects of marital rape may
include injuries to private organs, lacerations, soreness, bruising, torn muscles, fatigue and
vomiting. Women who have been battered and raped by their husbands may suffer other physical
consequences including broken bones, black eyes, bloody noses, and knife wounds that occur
during the sexual violence. Specific gynecological consequences of marital rape include
miscarriages, stillbirths, bladder infections, infertility and the potential contraction of sexually
transmitted diseases including HIV. Women who are raped by their husbands are likely to suffer
severe psychological consequences as well. Some of the short-term effects of marital rape
include anxiety, shock, intense fear, depression, suicidal ideation, and post-traumatic stress.
Long-term effects often include disordered eating, sleep problems, depression, problems in
establishing trusting relationships, and increased negative feelings about themselves.
Psychological effects are likely to be long-lasting. Some marital rape survivors report flashbacks,
sexual dysfunction, and emotional pain for years after the violence.

It is approximations which have been 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. More than 40
percent of married women aged 15 to 49 experience domestic violence, according to government
data, rising to 70 percent among child brides. The UN Population Fund states that more than
2/3rds of married women in India, aged between 15 to 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.

TYPES OF MARITAL RAPE

According to the nations, largest anti sexual violence organization i.e. rape, abuse incent national
network (RAINN) there are three types of marital rape:-

 Battering rape- battering rape occurs when physical and sexual violence occurs together.
Victims may experience the physical and sexual violence at the same time or one may
occur after another. The rape may occur after the physical violence as an attempt to
“make up”.
 Force- only rape- this type of rape happens when physical violence is not present. As
with all rape, this type of spousal rapeis spurred by a desire to exert power and control
over the other person. This desire manifests in acting as if sex is an entitlement to one
party from another
 Obsessive/sadistic rape- obsessive or sadistic rapes is the rape that involves torture or
perverse sexual acts. This type of marital rape tends to be very violent and result in
physical injuries.1

HISTORICAL STUDY OF RAPE

“Raptus” is the Latin for "seized", from rapere "to seize". In Roman law the term covered many
crimes of property, and women were considered property.2 This is synonym of word abduction

1
https://www.rainn.org
2
http://latin-dictionary.net
and a women abduction or sexual molestation or sexual harassment against her consent or by
forcing her for sexual pleasure.

Chief justice Matthew Hale was the first who announced the legal impossibility of rape in
marriage in seventeenth century treaties in which he established the irrevocable consent theory,
which argued that man had an absolute right of sexual relations within the bonds of marriage and
provided the foundation of marital rape exemption. While in modern cases law and legal
commentary questioned the veracity of Hale’s presumption. It remained the basis for strong
argument against spousal rape for centuries in both Great Britain and United States. In Marital
rape the word “marital” means “married “. As it has been illegal in most of the cases to force sex
upon a women other than his wife, but a husband could force sex upon his wife without violating
any law or without committing any crime until recently. The justifications for this marital rape
exception were:

 the British common law view that the contract of marriage includes the husband’s “right
to sex”—the wife having given consent for all time by entering the contract

 the traditional view of wives as the property of their husbands with which they could do
as they pleased under common law, and

 the public interest in promoting privacy and harmony in marital

In 1857, the case of Massachusetts was the first in the U.S. to recognize the “contract”
justification for the marital defense to rape. The “right” of a husband to sex with his wife also
provided a husband with grounds for divorce if his wife refused sex. This defense became part of
the rape laws in every state. The third justification posed the greatest hurdle to rescinding the
marital rape exception, but the fundamental incoherence of the justification has undercut its
sway. As the Supreme Court of Virginia has noted, it is “hard to imagine how charging a
husband with the violent crime of rape can be more disruptive than the violent act itself.”
(Weishaupt v. Commonwealth)3

So, its obvious that married women had never the subject of rape laws. Law has given an
absolute privileged or immunity on the part of husband in respect of his wife, solely on the basis

3
https://casebriefsco.com
of marital relation. The revolution started with women activists in America raising their voices in
the 1970s for elimination of marital rape exemption clause and extension of guarantee of equal
protection to women.

RATIONALE FAVOURING MARITAL RAPE

The Woman and Child Development Minister Maneka Gandhi on Thursday told Rajya Sabha
that ‘the concept of marital rape can’t be applied to India’. She added that a country like India is
not ready for the change due to factors like poverty, illiteracy and religious beliefs. “It is
considered that the concept of marital rape, as understood internationally, cannot be suitably
applied in the Indian context due to various factors like level of education/illiteracy, poverty,
myriad social customs and values, religious beliefs, mindset of the society to treat the marriage
as a sacrament.” – was Maneka Gandhi’s .4

There is not a single day spent when we not see the headline of rape in the newspaper. In India
most of us think that when a woman marries, she surrenders among other things, her sexuality to
her husband. In other words she is expected to satisfy his sexual urges whenever he wants.
And she must never express her urges. Also there is no education about consent in context of
sex. We don't teach it in schools and we don't talk about it in our homes, since it will be against
our culture. So we have a husband who thinks it is within his rights to force sex on his wife, and
a society who supports his thinking. This leads to marital rape.

The reasons of marital rape can be many such as sexual perversion of husband; desire to assert
superiority of men over women; petty domestic issues; attempt of women to demand her right in
marital relationship etc. Some of the factors are:-

 DOMINANCE

As our Indian society is patriarchal society or a male dominated system of social norms where
women either married or unmarried do not have equal rights in any which way. It is another
weapon in the hands of man to exploit and subjugate women. When there is conflict between the
spouse’s increases, then the male may try to dominate himself by forcing himself upon his wife.
In an attempt to one-up his wife, he will use the ultimate weapon in his arsenal to demean
and degrade her. “This way he is showing his dominion over her and destroying her
privacy. While the act of rape itself is heinous, it is often the elaborate process of insulting,
4
http://www.livelaw.in
attacking and disrobing the victim that makes marital rape particularly demeaning for the
woman. “The man wants to declare that he is more powerful than the woman and she will
be forever at his mercy,”

 LACK OF SEX EDUCATION

No matter how much development we have witnessed in the past few years, India is still a nation
where sex education is taboo in the sight of society. It’s a subject which is considered to be
something which should be discussed in person. Lack of sex education at the school level or at
the family level is the foremost reason as this makes teenagers curious about the changes taking
place in their bodies and in order to know about all this, they tend to resort to the unethical ways
that generate their desires at the right time. Thus, leading them towards a crime called rape.

 ACCEPTANCE OF DOMESTIC BRUTALITY

Indian society is a patriarchal society in which men dominate women whenever they can. Marital
rape is also an issue when we talk about rapes in India. Marital rape is basically when forcefully,
a partner is treated as an object of gratification to satisfy the sexual desires of the other person.
Hence, our culture teaches women to respect what her husband says her to do which is totally
unethical when it comes to her own dignity.

Even under the Section 375 of the Indian Penal Code (IPC), it is considered that the forced sex in
marriages as a crime only when the wife is below 15. Thus, marital rape is not a criminal offense
under IPC, and this law needs to amend. She is beaten, burnt what not and that too sometimes for
the forced physical relations. This directly gives husband courage to rape his wife.

 LOW STATUS OF WOMEN

Perhaps the biggest issue, though, is women's overall lower status in Indian society. For poor
families, the need to pay a marriage dowry can make daughters a burden. India has one of
the lowest female-to-male population ratios in the world because of sex-selective abortion and
female infanticide. Throughout their lives, sons are fed better than their sisters, are more likely to
be sent to school and have brighter career prospects.
In recent days, Indian politicians have put forward a remedies for India's sexual violence
problem. But it's worth noting that it will be hard to end discrimination against women at police
stations when it starts in the crib.

MARITAL RAPE AND INDIAN LEGISLATIONS

As India is heading towards developing to developed countries then why not marital rape is
considered as a criminal offence in India? We always say that we are getting advanced in every
possible field according to the passage of time then why not our mentality is getting advanced
according to the changing world? Despite of amendments, law commission and new legislation,
one of the most atrocious and ignominious act is yet untouched by our honorable courts. It is so
weird to hear that a women is not safe behind her own bedroom door. In the case of marital rape
the legislation have been either paralyzed or nonexistent and everything has just depended on the
interpretation by Courts

Marital rape has been hinted in the Domestic Violence Act, 2005. The Act prohibits any form of
sexual abuse in a live in or marriage relationship. 5 However, this Act provides for civil remedies
only. For the first time in Indian history of legal system the laws of marital rape was amended in
the case of Phulmoni Dasi rape case the bill was passed on 29 March 1891, the Section 376
included sex with a girl under 12 even if the person is the wife of the perpetrator, as rape.6
Currently, in India, marital rape is not criminalized under the Indian Penal Code, 1860
(hereinafter referred to as the Code). In the case Independent Thought v. Union of India7, the
Centre told the Supreme Court bench consisting of Justices Madan Lokur and Deepak Gupta on
October 11, 2017, the exception to Section 375 of the IPC, holding that sex with one’s who is
below 18 years of age is rape, whether or not the minor consents. Earlier, it was crime only if

5
Sec. 3, Domestic Violence Act, 2005.

6
Himani Bannerji (2001). Inventing Subjects: Studies in Hegemony, Patriarchy and Colonialism. Anthem Press.
pp. 74–76. ISBN 978-1-84331-073-0. Retrieved 8 December 2014.

7
Independent Thought v. Union of India, W.P. (Civil) No. 382 of 2013
a husband have sex with a child bride below 15 years old and husbands were protected via
Exception 2 which allowed sex with their minor wives if they were between 15 and 18 years
of age, even if there was no consent. In effect, the IPC legally allowed a man to rape his
underage wife if she was between 15 and 18 years old. Now, a man can rape his wife only if
she is above 18 years of age. And the rape will be legal because the marriage is a shield which
is protecting every husband from any kind of punishment in India. A minor girl is protected
from rape until she gets married, seems to be the extant position of the law. In Exception 2 of
Section 375 of the Code has clearly stated that sexual intercourse or sexual act by a man with his
own wife not being under fifteen years of age is not rape. “Sexual intercourse by husband with his
wife, if the wife is above 15 years of age, is not rape.” The above scenario is the reality of india’s
legal provision which seems like script of any tragic movie but it’s the most depressed and
terrifying reality of hundreds of women all over India who have no remedy in the Indian
criminal justice system if they have been raped by their husbands. Under section 376 of IPC,
punishment of rape has been given. According to the section, the rapist should be punished with
imprisonment o either description for term extending upto 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 dealing with the sexual assault of wife in a very narrow sense which lays down that
the offence of rape within marital bond stands only if wife’s age is less than 12 years, if she is
between 12 to 16 years, an offence is committed, less serious and milder punishment will be
granted. Once the age of wife crosses 16, there is no legal protection granted 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. This means our legal system is
protecting women’s right and dignity depending upon the age groups. The Indian Penal Code
was amended in 1983 to make way for the criminalization of spousal rape during the period of
judicial separation.8

As per the Indian Penal Code, the cases when the husband can be criminally prosecuted for an
offence of marital rape are as follows:

1. When the wife is between 12 – 15 years of age, offence punishable with imprisonment upto
2 years or fine, or both;9
2. When the wife is below 12 years of age, offence punishable 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.10
3. Rape of a judicially separated wife, offence punishable with imprisonment upto 2 years and
fine;11
4. Rape of wife of above 15 years in age is not punishable.12

However, under section 376 B of code, a man is punished for forced sexual
intercourse without the consent of the judicially separated wife. Further, as also seen above,
marital rape cannot form a direct ground for divorce under different personal laws.13 The
retaining of this part of Exception 2 would have resulted in dissonance in the laws for many
reasons. For one, it is statutory rape if a man above 18 years of age has sexual relations with a
girl below 18 years of age, even if it was consensual. Secondly, under the Protection of
Children from Sexual Offences Act, 2012 (POCSO), raping a child is an offence, and a child
is defined as any person below the age of 18 years. Thirdly, Section 5 of the POCSO Act
defines what ‘aggravated penetrative sexual assault’ is and clause (n) states that:

“Whoever being the relative of the child through blood or adoption or marriage or
guardianship or in foster care or having a domestic relationship with the parent of the

8
Indian Penal Code (45 of 1860), Section 376A. Intercourse by a man with his wife during separation.—Whoever
has sexual intercourse with his own wife, who is living separately from him under a decree of separation or under
any custom or usage without her consent shall be punished with imprisonment of either description for a term which
may extend to two years and shall also be liable to fine
9
Indian Penal Code (45 of 1860), Section 376(1).
10
Ibid
11
Indian Penal Code (45 of 1860), Section 376A
12
Indian Penal Code (45 of 1860), Section 376A
13
Sec. 375, Exception, Indian Penal Code, 1860.
child or who is living in the same share household with the child, commit penetrative
sexual assault on such child.”

Therefore, the child’s husband, her relative, can be held guilty for penetrative sexual assault
as well as non-penetrative sexual assault. As per Section 42A of the POCSO Act, the
provisions of the Act will effectively override the provisions of any other law to the extent
that they are inconsistent and so the provisions of POCSO should have overridden Section
375 and its Exception 2, which could have protected many children who were raped in
marriages. Section 42 A reads:

“The act not in derogation of any other law: the provision of this act shall be in addition
to and not in derogation of the provision of any others laws for the time being in force
and, in case of any inconsistency, the provision of this A ct shall have overriding effect
on the provision of any such laws to the extent of the inconsistency.”

In the case of live-in relationships, once again, which is still a blur topic, as live-in
relationships have been held to be ‘marriage-like’ but yet not marriage-like
enough, allowing the rape provisions to apply. There is a presumption of marriage, if a man
and a woman have lived together for a long period and had children but a woman in such a
situation can take remedy in the law if she was raped as she is technically, not married.

Finally, to re-examine the issue of marital rape that is still legal and acceptable in India, many
prominent voices have defended the exception clause, stating that it was a myth or not in
favor of our traditions that married women had no remedy in the law in case of rape by her
husband and that just because the IPC has a provision that makes it legal, this does not mean
that Indian women were left completely high and dry. They are talking about the Protection of
Women from Domestic Violence Act (DV Act) as well as Section 498 of the IPC. Under the
DV Act, a women can file for protection and other relief in the event of sexual abuse at the
hands of her husband. Therefore, it is considered wrong enough by the law that she can obtain
a protection order, a residence order or monetary relief, among other reliefs, but not wrong
enough that he must be tried and punished. Under the IPC, if a married man has sexual
intercourse with his legally separated wife, he can be punished for rape. As per Section, a man
who is legally separated from his wife under a decree of separation or otherwise can be
punished for raping his wife. Once again, a legal concoction created due to the Indian
obsession with marriage and its illogical connection to a man’s right to sexual intercourse and
to a woman’s body. The recent Right to Privacy judgment by India’s Supreme Court
examined in detail the concept of personal autonomy and its relation to privacy, the right to
privacy of rape survivors and the right to privacy in relation to abortion but sadly, they
knowingly missed a historic opportunity to enlarge the concept of privacy with respect to
marriage and a woman’s right to her body.

42nd LAW COMMISSION REPORT

When the law commission of India in its 42nd report argued for the inclusion of sexual
intercourse42nd report argued for the inclusion of sexual intercourse by a husband with his
minor wife as an offence, it was seen as a new glimmer of hope. But the joint commission that
reviewed the proposal dismissed the recommendation. As, in their words, generally the
prosecution of this offence are very rare. The committee advocated that the husband could not be
found guilty of raping his wife whatever be her age. Many women’s organizations and the
National Commission for Women have been demanding the deletion of the exception clause in
Section 375 of the Indian Penal Code which states that “sexual intercourse by a man with his
own wife, the wife not being under fifteen years of age, is not rape”.

Although, the Task force on women and children established by the women and chill
development of the government of India took initiative that there should be wider debate on this
issue. The directives of the task force was to review all the existing legislations and schemes
concerning to women. The task force vis-à-vis rape put forward four recommendations under
Indian Penal Code, the most noteworthy concern was the definition of rape. This led to the
position that the definition of rape ought to be broadened to include all forms of sexual abuse. As
per the recommendation, the law commission presented the definition of “sexual assault” could
be embraced rather than the existing definition of rape in section 375 of IPC as “it is of broad,
compendious and acceptable nature”. As the Law Commission and Task Force both adopted the
inclusion of marital rape in new definition of rape on recommendation.
172nd COMMISSION REPORT

Even the 172nd Law Commission Report which was passed in March 2000had made
recommendation for substantial change in the law related to rape in regards to marital rape
suggested that explanation (2) of section 375 of IPC should be removed. Forced sexual
intercourse by a husband upon wife should be treated as equal as an offence of physical violence
by a husband against his wife. On the same reasoning, section 376A was to be deleted. 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. Nevertheless the 172nd report of Law Commission of
India submitted a decade ago to the Government of India recommending the Parliament should
replace the present definition of rape under 376 of IPC with a broader definition of sexual
assault, which is both age and gender neutral, nut nothing has been done yet.

JUSTICE VERMA COMMITTEE

The Criminal Law (Amendment) Bill, 2010 based on Women Child and Development
Ministry(WCD) and the National Commission of Women(NCW) to amend certain sections of
Indian Penal Code., the Criminal Code of Criminal Procedure(Cr.P.C.), 1973 and the Indian
Evidence Act, 1872, and recognize various kinds of sexual assault besides redefining rape by
including sexual assault in any form in its definition proposed new law terming sexual
relationship of a man with his wife under the age of 18 as rape with specification under section
376(1) that if a man commits sexual assault even on his wife, who is above 18years of age, shall
be punished with imprisonment and which may extend to three years and shall be liable for fine.
But the legislation again disagree upon these recommendations.

After the deadliest incident which shook the whole nation of 16 December 2012 Delhi gang-
rape, the Justice Verma Committee was comprised to recommend amendments in the criminal
law so as to provide for speedy trials and enhanced punishment for criminals accused of
committing sexual assault against women. The report by the committee was submitted on 23
January 2013, giving the following views regarding marital rape: “The IPC differentiates
between rape within marriage and outside marriage. Under the IPC sexual intercourse without
consent is prohibited. However, an exception to the offence of rape exist of not taking consent
sexual intercourse by a husband upon a wife. The Committee recommended that the exception to
marital rape should be removed. Marriage should not be considered as an irrevocable consent to
sexual acts. Therefore, with regard to an inquiry about whether the complainant consented to the
sexual activity, the relationship between the victim and the accused should not be relevant”.14
The panel relied heavily on the judgments made by courts in various countries: “Our view is
supported by the judgment of the European Commission of Human Rights in C.R. v UK15, which
ratify the conclusion that a rapist remains a rapist regardless of his relationship with the victim”,
the 630-page report said, slamming the prevailing notions on this subject.

Constitution is supreme law of land. While the constitution is written down , it was not a rigid set
of rules or framework. It lays down the framework defining fundamental political principles,
established the structure, procedure, powers and duties of government institutions and set out
fundamental rights, directive principles and duties of citizens. The provisions were stated
generally so thatthey could be adopted to the changing time and situation.

As per the constitution, every , law which passed in our country has to confront the pri9nciples,
odeas of the constitution of India. If any law failed to fulfill the standard is considered as ultra
vires and is liable to be stuck down by the court and declared unconstitutional. But here the
doctrine of marital rape failed to fulfill the standard with the provision of article 14 and article 21
of constitution of India.

Article14 (equal protection of laws)

According to article 14 of our constitution, every citizen of India is guaranteed a fundamental

right of equality before law and equal protection of law, which means that everyone should be
treated equally in every circumstance, but requires that “equals should be treated equally”. While
making this classification, it should be taken care that “the stereotype follows by the patriarchal
ideology” does not predetermine as to what is reasonable classification. A married woman also
needs protection of laws exactly like men and unmarried women. Is marriage is murder of all the
laws of a married women? Or the wife of women ends after marriage? In section 375 of IPC the
offence of rape is criminalized and protects women against sexual intercourse happening against
her will or without her consent. This section only provides protection to the statutory rape not the

14
The Justice Verma Committee Report, 2013 (http://www.legal-tools.org/doc/8712ed/).
15
(1992) 1A.C.599
marital rape. In India, it has been believed that after marriage, wife has to submit herself to
husband and it is believed that she has given permanent consent to her husband for sexual
relationship. So, this kind of assumption which is made is totally illogical and the basis of such
classification is completely irrational and violates the test of classification under article 14 of the
constitution.

Article 21 (Right to life and personal liberty)

Right tl life and personal liberty is guaranteed in article 21 of the constitution although in
negative language. The doctrine of marital rape violates the host of rights which has emerged
from right to life and personal liberty under article 21. The marital exemption to rape violates the
right to privacy, right to bodily self-determination, right to good health, right to productive and
sexual health, right to live with human dignity of which has been recognized as integral part of
right to life and personal liberty.

In one of the most leading cases of Harvinder Kaur v Harmender Singh16, the court commented
upon the applicability of the constitutional rights, mainly that of Article 14 and Article 21 within
a family. It had stated that, “introduction of Constitutional law in the home is most inappropriate.
It is like introducing bull in China shop. It will be a ruthless destroyer of the marriage institution
and all that it stands for. In the privacy of the home and married life, neither Article 21 nor
Article 14 has any place. In a sensitive sphere which is at once most intimate and delicate, the
introduction of cold principles of Constitutional Law will have effect on weakening of marriage
bond”. This was later challenged in the case of Sareetha v T Venkata Subbaih 17
, failing to
improve the situation. The Apex Court had also commented upon the matter in the case of Saroj
Rani v Sudarshan Kumar Chadha18 by saying that “the introduction of equality clause within
home will destroy the institution of marriage.”

Right to privacy is not clearly mentioned in the constitution but it is protected under article 21 of
the constitution. But after the judgement of KS Puttaswamy and others vs Union of India and
others19 ,the right to privacy has become our fundamental right. The right of privacy under

16
AIR 1984 Delhi 66, ILR 1984 Delhi 546, 1984 RLR 187
17
AIR 1983 AP 356
18
1984 AIR 1562, 1985 SCR (1) 303
19
WRIT PETITION (CIVIL) NO 494 OF 2012
Article 21 includes a right to be left alone. Any form of forceful sexual intercourse violates the
right of privacy. It is submitted that the doctrine of marital exemption to rape violates a married
woman’s right to privacy by forcing her to enter into a sexual relationship against her wishes.
The Supreme Court in the case of State of Maharashtra v. Madhkar Narayan20 has held that
every woman was entitled to sexual privacy and it was not open to for any and every person to
violate her privacy as an when he wished or pleased. By decriminalizing rape within a marriage, the
marital exemption doctrine violates this right of privacy of a married woman and is hence,
unconstitutional.

When the Honorable Courts was delivering these judgments, why did the court forget about the
already existing laws provided under the Hindu Marriage Act and in the Protection of Women
from Domestic Violence Act? Are these laws not applicable behind the four walls or they are not
breaching the right to privacy? Is it a situation where courts are giving judgments behind the
prison of traditions?
MARITAL LAWS IN OTHER COUNTRIES

Today there are many countries that have either enacted marital rape laws, repealed marital rape
exceptions or have laws that do not distinguish between marital rape and ordinary rape. In 2006,
the United Nation’s secretary general found marital rape may be prosecuted in at least 104 states.
Of these, 32 have made marital rape a specific criminal offence while the remaining 74 do not
exempt marital rape from marital rape provision. Four state criminalize only when the spouses
are judicially separated.21

Australia, under the impact of the second wave of feminism in the seventies, was the first
common law country to pass reforms in 1976 that made rape in marriage a criminal offence. In
the two decades before that, several Scandinavian countries and countries in the Communist bloc
passed laws criminalizing spousal rape including Sweden, Norway, Denmark, and the former
Soviet Union and Czechoslovakia. Poland in 1932 was the first to have a law explicitly making it
a criminal offence. Since the 1980s, many common law countries have legislatively abolished
the marital rape immunity. These include South Africa, Ireland, Canada, the United States, New
Zealand, Malaysia, Ghana, and Israel.

20
AIR 1991 SC 207.
21
Report of secretary general, United Nations, July, 2006, UN Doc A/61/122/Add.1.
In the US, between 1970s and 1993, all 50 states made marital rape a crime. The Court of
Appeals of New York struck down the marital exemption from their codes in 1984. In 1986, the
European Parliament’s Resolution on Violence against Women of 1986 called for criminalisation
of spousal rape which was done soon after by several nations including France, Germany, the
Netherlands, Belgium and Luxembourg. In 1991, the House of Lords in the UK struck down its
common law principle that a marriage contract implied a woman’s consent to all sexual activity.
In 2002, Nepal got rid of the marital rape exception after its Supreme Court held that it went
against the constitutional right of equal protection and the right to privacy. It said, “The
classification of the law that an act committed against an unmarried girl to become an offence
and the same act committed against a married woman not to become an offence is not a
reasonable classification.”
According to the UN Women’s 2011 report, out of 179 countries for which data was available,
52 had amended their legislation to explicitly make marital rape a criminal offence. The
remaining countries include those that make an exception for marital rape in their rape laws, as
well as those where no such exception exists and where, therefore, the spouse can be prosecuted
under the general rape laws.
Sexual assault laws in the United States are far from perfect: Some states give victims only three
years to report sexual assaults, while others require them to pay for their own rape kits. But a
new report from Equality Now shows the situation is even more dire in countries around the
world. In a review of the laws of 82 countries, Equality Now found 10 nations in which forcing
your spouse into sex is perfectly legal. The women’s rights organization surveyed the laws of
each of the 82 countries between 2014 and 2015. They found laws expressly allowing for spousal
rape in Ghana, India, Indonesia, Jordan, Lesotho, Nigeria, Oman, Singapore, Sri Lanka, and
Tanzania. In four of these countries, it is permitted even when the victim is a child.
Ghanaian law, for example, states that “consent given by husband or wife at marriage, for the
purposes of marriage, cannot be revoked,” unless the parties are divorced or legally separated. In
Lesotho, spousal rape is only illegal if the perpetrator also uses abusive language, violence, or
threats. Allowing for spousal rape, the report points out, makes sexual violence as a whole seem
less serious. Studies show that spousal rape often happens in such situations, where rape and
other forms of abuse occur in tandem. One study from the National Institute of Justice found that
the majority of women who were physically assaulted by a partner were sexually assaulted by
that partner as well.
Position in International Human Right Laws

Marital rape is a crime under international law according to the United Nation General
Assembly. Marital law is specifically mentioned in the Beijing Declaration and Platform for
Action the Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW), adopted in 1979 by the UN General Assembly, what constitute women against
discrimination as:

“ Any discrimination, exclusion or restriction made on the basis of sex which has the effect and
the purpose of imparting or nullifying the recognition, enjoyment or exercise by women,
irrespective of their marital status, on the basis of therir equality of men and women, of human
right and fundamental freedom in the political, social, economic, cultural and civil or any other
field”.

In December 1993, United Nation High Commissioner for Human Rights published the
Declaration on the Elimination of Violence Against Women which established marital rape as a
human right violation.22

Criminalizing spousal rape, then, does more than just punish rapists — it protects the rights of
women in abusive relationships as well.
CONCLUSION
Marital rape is the most widespread and vile form of masochism in Indian society hidden behind
the shield of marriage. Its against a women in the form of marital rape is merely a symptom of a
wider social issue. To scrap the issue is to protect and preserve the rights and laws of married
women. Reportedly, “if the marital rape is brought under the law, the entire family system will
be under great stress and to uphold the sacrosanctity of the family values of our patrilineal social
setup, the dignity of women is sacrificed everyday at the altar of marriage. Social practice and
legal code in the India mutually enforce the denial of women’s sexual agency and bodily
integrity, which lie at the heart of women’s human rights. It is not just the woman alone who
suffers, children are no exception to the impact faced by the commitment of this crime. These
little ones have no option, but to witness the harassment of their mother. When in this age, we

22
Article 2 of Elimination of Violence Against Women, 1993
are justifying the illegalization of this crime, by taking the support of poverty and illiteracy then
has someone ever thought about the mindset of the children being framed on being silent
witnesses to such incidents. By continuous observation of this heinous crime, the mentality of a
girl child will be like, it as their destiny and start preparing themselves mentally, for the future
suffering and the boys take it as their right to overpower women. In this way we are setting
example for our future generation to continue this never ending tradition of our country by
forcing your wife for sexual intercourse just to satisfy lust. Rape is rape. Be it stranger rape, date
rape or marital rape. The legal system must be sensitized to accept rape within marriage as a
crime and justice be made accessible to victims of such crime. Further, women themselves must
break free of societal shackles of domination through violence and fight for justice. They must
refuse to comply with the standards applied to them as the weaker sex.

Law is not static and need to be change according to the changing time and society. Our dynamic
law, which proves to be the savior of the victimized in almost every circumstance, is derisory
upon this matter. One says that criminalizing of this offence would result in destroyed married
institutions, breakdown of a million homes, and men would be wrongfully tortured. Is this
statement is correct or justified? What about women who are suffering from this heinous crime
everyday without complaining to someone else? Are they not mentally or physically tortured?
How long will the marriage be the permit to rape? How long the punishment of rape will differ
according to the marital status of women? Are they not the human beings after marriage? Are
they property of their husbands who will decide how they want to use them?

Not only child-brides, but all wives need legal protection against rape within the marriage. It is
high time that the dignity and freedom of a woman over her body and person be recognized in
India as well. And the legislation should take major steps to criminalize the marital rape. Should
the state really enter the sphere of the matrimonial home? The answer is ‘yes’. It already does, in
cases of domestic violence like cruelty, divorce and dowry demands. Why not to touch the most
atrocious and heinous crime outside the ambit of the state and laws? Why must the realm of
marital rape remain beyond its reach of the courts? A state that does not involve directly at the
time of the marriage but can solve the problems indirectly by acting as an arbitrator during
divorce must protect a woman’s right to basic physical integrity. The patriarchal power structures
have deemed marriage to be a license to forced sex. This negates the self-worth of women.
Currently, ‘marital rape’ can only be seen as legally permitted rape, abolishing the element of
consent from married women. The legislative framework of India has no provision to aid the
unfortunate situation of a married woman who faces this evil due to the salubrious belief in
Indian society that considers sex as an obligation. It is as if after marriage a woman ceases to be
under the jurisdiction of Indian law and enters the jurisdiction of a single man who governs her
life from then on and the women just become the puppet in his hands. It’s high time to review
our legislation and make marital rape a crime. Our country has the latest defense technology at
its allocation guaranteeing the state’s security, but the women of the country is living in fear for
their life and dignity within the family on the state’s territory. Fault lines of gender
discrimination run deep into our society. If we have to make our country powerful then we have
to make our women powerful as they are the one because of whom our future generation comes
in this world. We always teach our sons not to cry but its time to teach our sons not to make
someone cry.