Dr.

Ram Manohar Lohiya National Law University,

LUCKNOW

Literature Review
Legislative Drafting
“Marital Rape-: Current Legal Framework in India and need for change”

SUBMITTED TO: SUBMITTED BY-:

Ms. Ankita Yadav Shalini Dwivedi

Assistant PROF. LAW IXth Semester

Dr. RMLNLU Enroll no. 140101121

1
SOURCES
Books-:

1. Marital Rape-Consent, Marriage, and Social Change in Global Context-: Edited

by Kersti Yllo and M. Gabriela Torres
Marital Rape presents an analysis of rape in marriage in cross-cultural perspective.
Previous scholarship on marital rape has been limited compared with research on battering,
acquaintance rape, and child sexual abuse and it is largely US focused. This volume
represents the collaboration of an international, interdisciplinary, and intergenerational group
of scholars and activists.

2. Rape in Marriage-: Edited by Diana E H Russell

This is a groundbreaking contribution to the literature of sexual assault and family violence."
—Susan Brownmiller [Russell] has done a superb study which yields comprehensive and
undeniable findings about a subject no one had even whispered about before... a classic
work." —Phyllis Chesler. One out of seven American women who have ever been married
has been raped by a husband or ex-husband. Written by the principal investigator for the
National Institute of Mental Health study that discovered this shocking statistic, this book is a
monumental, eye-opening work that dispels misinformation and illusions about a previously
ignored aspect of family violence.

3. Family Law Matters (Law and Social Theory)-: by Katherine O'Donovan

In this radical critique, Professor O'Donovan challenges conventional textbooks which

assume that marriage is the essential feature of family life and that the patriarchal unit
remains dominant. She shows how the key players in family law discourse - women and
children - are largely excluded and argues that it is the birth of children, rather than marriage,
which is the constitutive element of the family.

2
Articles-:

1. Issues & Challenges Related To Marital Rape in India-: By Prof.Kshitij Naikade

and Dr.Garima Pal.

This article basically talks about the issues and challenges related to marital rape in India. Rape,
the most basic yet the most severe violation of human rights of women, is punishable by law and
unanimously treated as a heinous crime across the globe. The Supreme Court of India has very
clearly stated that “Rape is a deathless shame & the gravest crime against the human dignity”.
Marital Rape, on the other hand is rape which takes place within the confines of the institution of
marriage. It is physical violence which is committed by one’s own husband. As per Indian
scenario, according to Section 375 of Indian Penal Code, the rape of one’s wife, who is above 15
years of age, is not considered to be as a punishable offence. The exemption clause is not just an
accidental loophole in the law but has its roots in English legal system which can be traced from
a judgment delivered almost 300 years ago by CJ Lord Hale in the 17th century. According to
National Family Health Survey (2015-16) 10.4% of married women across age groups complain
of spousal sexual violence. Even Social Constructivist Theory suggests that this social reality is
because of the fact that men have dominated the law making & political sphere since ancient
times. The rationale behind keeping marital rape under exemption is the notion of “Implied
Irrevocable Consent”, which in simple word means that once a woman gets married, she has
given her consent.

2. It Is About Time That Marital Rape Is Criminalized In India-: By Youth ki awaaz

Marital Rape is an unquestionable reality in India. The National Health Family Survey in
2005- 06 published a report that explicitly mentioned figures of sexual violence, faced by
married women from their husbands. Such incidents occur every day. The patriarchal notion
continues to occupy the mindset of our society, even after six decades of us being a republic
nation. It’s a pity; the emancipation of women hasn’t yet been completely achieved in
independent India.

3. Marital Rape- By Economic and Political Weekly

The article written by Flavia Agnes (“Section 498A, Marital Rape and Adverse Propaganda,”
EPW, 6 June 2015) opens a fresh debate raising some relevant questions regarding the
shortcomings of our legal system in handling gender assaults like marital rape. The article
rightly highlights how in our male-dominant society, ridden with orthodox patriarchal values,
women’s sexual oppression is reinforced by rationalizing the chastity of marriage. Just being
someone’s husband cannot provide legitimization or rationality for sexual abuse as well as

3
the brutal use of physical power.