Table of Contents

Chapter 1 INTRODUCTION.............................................................................................................4
Definition...............................................................................................................................................6
A. Types of Marital Rape....................................................................................................................8
Historical view.......................................................................................................................................9
EFFECTS OF MARITAL RAPE.................................................................................................................11
1. Physical effects........................................................................................................................11
2. Psychological effects................................................................................................................11
B. Reasons for Marital Rape.............................................................................................................13

Chapter-2 SITUATION IN OTHER COUNTRIES-

A COMPARITIVE ANALYSIS.......................................................................................................14
ENGLAND.............................................................................................................................................15
EUROPEAN UNION...............................................................................................................................16
UNITED STATES OF AMERICA..............................................................................................................16
Canada.................................................................................................................................................18
New Zealand........................................................................................................................................18
Bhutan.................................................................................................................................................18
South Africa.........................................................................................................................................18
Australia..............................................................................................................................................19

Chapter 3 INTERNATIONAL LEGAL FRAMEWORK.............................................................20

The United Nations’s Treaties and Conventions..................................................................................21
United Nations’ Conference Documents.............................................................................................22

Chapter 4 POSITION IN INDIA.......................................................................................................25

Attempts to Reform the Law Relating to Marital Rape in India...........................................................26
Legal Aspects and Present Laws..........................................................................................................29
RIGHT TO LIVE WITH HUMAN DIGNITY............................................................................................29
RIGHT TO SEXUAL PRIVACY..............................................................................................................30
RIGHT TO BODILY SELF- DETERMINATION.......................................................................................31

Page | 1
 MARITAL RAPE AND DIVORCE.........................................................................................................31
Meaning of cruelty:.....................................................................................................................31
Provisions for cruelty:..................................................................................................................32
Lacunae in Indian law..........................................................................................................................33

Chapter-5 SUGGESTIONS AND CONCLUSION...........................................................................35

REBUTTAL OF ARGUMENTS AGAINST CRIMINALIZATION OF MARITAL RAPE:.....................................36
Suggestions for reform........................................................................................................................37
Conclusion...........................................................................................................................................38

BIBLIOGRAPHY........................................................................................................................39-40

Page | 2
Chapter 1
INTRODUCTION

Page | 3
More than 20,000 housewives took their lives in India in 2014.1

This was the year when 5,650 farmers killed themselves in the country. So the number of
suicides by housewives was about four times those by farmers. They also comprised 47% of
the total female victims. Yet the high number of homemakers killing themselves doesn't
make front page news in the way farmer suicides do, year after year.

In fact, more than 20,000 housewives have been killing themselves in India every year since
1997, the earliest year for which we have information compiled by the National Crime
Records Bureau based on occupation of the victim.2

What are the possible causes which lead a woman to take her own life? The obvious answers
are Harassment for Dowry, Cruelty by husband and/or in laws, Domestic Violence. But what
is not specifically counted is Sexual Violence by Husband, which is very commonly faced by
married women in India yet nobody talks about it or report it because of the lack of
understanding and legislative measures.

Of the 664 cases of women who reported domestic violence in 2015at NGO Sneha’s crisis
counselling centre in Mumbai, 159 women also reported, among other issues, marital rape3.
While marital rape gets documented in hospitals, cases are rarely registered, since it is not an
offence under Indian penal code and specifically excluded from the definition of rape.

Out of all crime record of NCRB in 2014 against women about 3.4% cases are of cruelty by
husband and 2.8% are cases of dowry death4. NCRB recorded over 118,000 domestic
violence case in 2013, it is to think that out of these how many would have included sexual
violence in them and there is extreme possibility that equal or more number of cases might
not have been reported.

NCRB has also said in its report that 985 of all rapes involve perpetrator familiar to
survivors. - But no records for husband as perpetrator are found.

1
NCRB statistics of crime 2014, available at http://ncrb.nic.in/StatPublications/ADSI/ADSI2014/chapter-
2%20suicides.pdf last visted on 03-11-16
2
Ibid
3
http://www.snehamumbai.org/about-us/sneha-mumbai-ngo-annual-reports.aspx (last visited on 03-11-16)
4
NCRB, Crime in India 2014 available at http://ncrb.nic.in/StatPublications/CII/CII2014/Compendium
%202014.pdf (last visited on 08-11-16)

Page | 4
 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 between15 to 49 have been
beaten, raped or forced to provide sex.5

To understand the situation we need to understand the concept first.

Definition
In Oxford Dictionary marital rape is, rape committed by the person to whom the victim is
married.

Marital Rape also known as Spousal Rape or Inmate Partner rape is a rape committed by one
spouse against the other.6 To understand the complications of Marital Rape one must first
understand the difference between Rape and Marital Rape as both the terms have different
meanings and cannot be used interchangeably.

The dictionary meaning of word rape is “the ravishing or violation of a woman.” The
summary of definition of Rape as defined and accepted by FBI is- “Penetration, no matter
how slight, of the vagina or anus with any body part or object, or oral penetration by a sex
organ of another person, without the consent of the victim.”7

According to Morton Hunt, “The typical marital rapist is a man who still believes that
husbands are supposed to “rule” their wives. This extends, he feels, to sexual matters: when
he wants her, she should be glad, or at least willing; if she isn’t, he has the right to force her.
But in forcing her he gains far more than a few minutes of sexual pleasure. He humbles her
and reasserts, in the most emotionally powerful way possible, that he is the ruler and she is
the subject.”8

As per the Indian Penal Code, 1860, the definition of Rape under section 375, states that
sexual intercourse with a woman would be constituted as rape if it is against her will or
without her consent. If the consent of the woman is obtained by coercion or causing
5
“Masculinity, Intimate Partner Violence and Son Preference in India-A Study available at
http://www.icrw.org/sites/default/files/publications/Masculinity%20Book_Inside_final_6th%20Nov.pdf
6
Marital Rape, available at : http://rapeinfo.wordpress.com/2008/05/25/marital-rape/ last visited on 11-11-16
7
Definition of rape, available at : https://www.fbi.gov/about-us/cjis/ucr/recent-program-%20updates/new-rape-
definition-frequently-asked-questions last visited on 11-11-16)
8
Morton Hunt, “Legal Rape,” Family Circle (January 9, 1979), p. 38.

Page | 5
apprehension of grievous hurt or death, it will also be called rape. If a man fraudulently
makes the woman believe that he is her husband and has intercourse with her , that is also
rape. If a man has sexual intercourse with a woman who is unable to give consent due to
unsoundness then it would also constitute rape.

Sexual intercourse with a girl who is under sixteen years of age would also be called as rape
even if the girl consented for such intercourse.

Apart from this the definition of rape also comprises of an exception which states that a man
having sexual intercourse with his own wife, who is not under the age of fifteen years is not
rape.

Section 375, the provision of rape in the Indian Penal Code (IPC),   echoes very archaic
sentiments, mentioned as its exception clause- “Sexual intercourse by a man with his own
wife, the wife not being under 15 years of age, is not rape.” There is clear preference of the
rights of the husband over his wife against the wife’s right to herself. 9 It can be clearly seen
that the exception to this section does not acknowledge a wife being raped by her husband,
provided that she is above 15 years of age. The Indian Penal Code Simply overlooks an
offence as atrocious as marital rape by not having a provision for it.

Marital Rape also known as Spousal Rape or Inmate Partner rape is a rape committed by one
spouse against the other.10 The court in a case said “Defense counsel rightly argued that IPC
does not recognize concept of marital rape. If complainant was a legally wedded wife of
accused, the sexual intercourse with her by accused would not constitute offence of rape even
if it was by force or against her wishes.The court in a case said “Defense counsel rightly
argued that IPC does not recognize concept of marital rape. If complainant was a legally
wedded wife of accused, the sexual intercourse with her by accused would not constitute
offence of rape even if it was by force or against her wishes.”11

Thus, 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. It is a non-

9
Dipa Dube, License to Rape: The Indian Viewpoint, Indian Institute of Technology – Rajiv Gandhi School of
Intellectual Property Law, February 14, 2006
10
Marital Rape, available at : http://rapeinfo.wordpress.com/2008/05/25/marital-rape/, (Visited on 11-11-16)
11
The Life and Times of an Indian Homemaker, available at :
https://indianhomemaker.wordpress.com/2012/12/04/why-is-forcible-sex-or-lack-of-consent-not-rape/ last
visited on 11-11-16

Page | 6
consensual act of violent perversion by a husband against the wife where she is physically
and sexually abused. Marital rape could be by the use of force only, a battering rape or a
sadistic/obsessive rape.

A. Types of Marital Rape12

The following three kinds of marital rape are identified by legal scholars as generally
prevalent in the society

Battering rape: In “battering rapes”, women experience both physical and sexual violence in
the relationship and they experience this violence in various ways. Some are battered during
the sexual violence, or the rape may follow a physically violent episode where the husband
wants to make up and coerces his wife to have sex against her will. The majority of marital
rape victims fall under this category.

Force-only rape: In what is called “force-only” rape, husbands use only the amount of force
necessary to coerce their wives; battering may not be characteristic of these relationships. The
assaults are typically after the woman has refused sexual intercourse.

Obsessive rape: Other women experience what has been labelled “sadistic” or “obsessive”
rape; these assaults involve torture and/or “perverse” sexual acts and are often physically
violent.

The idea of the “sacrosanct” institution of marriage dished out by the mainstream Indian
cinema is a myth and is contrary to women’s perceptions of reality. Though marital rape is
the most common and repugnant form of masochism in Indian society, it is hidden behind the
iron curtain of marriage. Social practices and legal codes in India mutually enforce the denial
of women’s sexual agency and bodily integrity, which lie at the heart of women’s human
rights. Rape is rape. Be it stranger rape, date rape or marital rape. The law does not treat
marital rape as a crime. Even if it does, the issue of penalty remains lost in a cloud of legal
uncertainty. The legal system must be forced to accept rape within marriage as a crime.
Further, women themselves must break free of societal shackles and fight for justice. They
must refuse to comply with the standards applied to them as the weaker sex.

12
Gosselin, D.K., Heavy Hands — An Introduction to the Crimes of Domestic Violence (1st Edn., Prentice-Hall
Inc., New Jersey, 2000).

Page | 7
Historical view
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 woman’s abduction or sexual
molestation, was merely the theft of a woman against the consent of her guardian or those
with legal power over her.13 The harm, ironically, was treated as a wrong against her father or
husband, women being wholly owned subsidiaries.

The marital rape exemption can be traced to statements by Sir Mathew Hale, Chief Justice in
England, during the 1600s in his book History of the Pleas of the Crown He wrote,

“The 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 herself in kind unto
the husband, whom she cannot retract.”

This statement became known as the Lord Hale doctrine and represented a common-law
marital rape exemption, under which husbands could not be accused of committing the crime
of rape against their wives. Instead of basing his doctrine on legal argument, however, Lord
Hale relied solely on the theory of irrevocable consent (which is given by the wife in
marriage) to justify the marital rape exemption.

Despite this fact, the Hale doctrine seemed to gain automatic acceptance by the U.S. legal
system, which formally recognized the exemption in the 1857 Commonwealth v.
Fogarty14decision. During the same period, rape was considered a crime against another
man’s property rather than a violation against a woman’s body and personal integrity. As a
result, common law dictated that it was impossible for husbands to steal (i.e., rape) their own
property (i.e., wives); thus, marital rape was considered a legal impossibility.

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. 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.

13
Diana C. Moses, "Livy's Lucretia and the Validity of Coerced Consent in Roman Law," in Consent and
Coercion to Sex and Marriage in Ancient and Medieval Societies (Dunbarton Oaks, 1993), p. 50; Gillian
Clark, Women in Late Antiquity: Pagan and Christian Life-styles(Oxford University Press, 1993), p. 36.
14
Available at masscases.com/cases/sjc/105/105mass376.html, last visited on 15-11-16

Page | 8
At approximately the same time that the unities theory was supporting the view of women as
property, the separate spheres theory further eradicated women’s civil identity. Under this
theory, men were considered to inhabit the political/ public sphere whereas women were
relegated to the family/private sphere15. Because women were already considered the
property of their husbands, there were no laws to restrain male power within the private
realm. In addition, the commonly held belief that spouse abuse was a private matter further
dissuaded criminal justice officials from taking any legal action (Caringella-MacDonald,
1988). Moreover, the belief that sexual relations among husbands and wives, in particular,
were private matters also discouraged state legislators from repealing the exemption (Russell,
1990). Finally, pervasive fear among political and legal professionals that repealing the
marital rape exemption would ultimately flood the courts with vindictive wives also helped to
maintain the exemption over the years (Green, 1988).

In opposition of the separate spheres theory, the Married Women’s Property Act of 1889
afforded women the right to manage their own property, work outside the home without the
consent of their husbands, and keep their own wages .16Theoretically, because women could
now own property, it would logically follow that they would no longer be considered
property. Therefore, marital rape should have no longer been viewed as a legal impossibility.
Despite this fact, marital rape remained legal for nearly another century in the United States.

In addition, when it became possible for a wife to revoke her marriage contract, her implied
matrimonial consent to intercourse should have been revocable as well. This point
specifically countered Hale’s original notion of irrevocable consent. Although partial marital
rape exemptions eventually grew out of this ideology. 17 This legal change did not
immediately affect the legality of marital rape.

15
Social Psychology, "Marital Rape Exemptions," and Privacy, M A Small ; P A Tetreault, Behavioral Sciences
and the Law  Volume:8  Issue:2  Dated:(Spring 1990)  Pages:141-149
16
Ibid
17
Ibid

Page | 9
EFFECTS OF MARITAL RAPE   
Marital rape affects a woman drastically, it has always been thought that if a woman is raped
by her partner it is comparatively less traumatic for her, but that is a myth. Research shows
that marital rape has more severe and long lasting consequences for women because of the
simple fact that the rapist is none other than her husband with whom she had expected to
spend a lifetime of happiness.

The effects of marital rape can be broadly classified into two categories –

1. Physical effects – The physical effects of marital rape include injuries to private
organs, bruises , torn muscles , lacerations, fatigue, fractures etc. women who are
subjected to physical violence as well as rape suffer from other complications like
blackened eyes , broken bones, and wounds inflicted by any sort of a weapon, during
sexual violence.

Women also go through some gynaecological problems due to marital rape like miscarriages,
infections, infertility and also the chance of contracting of various sexually transmitted
diseases like HIV etc.

2. Psychological effects – The trauma a woman goes through when her own
husband repeatedly rapes her cannot be explained in words. The psychological effects
are far worse than the physical effects, some of the short term psychological effects
are shock, fear , post traumatic stress , suicidal tendencies etc. the long term effects
include eating disorders, depression , sexual dysfunction etc.

Marital rape or for that matter crimes against women can have numerous reasons , the most
obvious being the desire of men to assert superiority over women other reasons can be sexual
perversion of husband , or any small issue.

Our patriarchal and male dominated social system is the main reason behind the widespread
gender inequality which leads to the suppression of the female counterpart in the society.
Women in our society have never been given the same status and importance as men; they
even don’t have the same rights as men. This gives men an unjustified edge over women
which is very much exploited.

Another reason is the traditional role which a woman is expected to play regardless of her
choice. Women are expected to be in the role of a pativrata stri which means a pure, faithful

Page | 10
and obliging wife. Our society has limited the role of the woman to simply belonging to
someone else, a daughter belonging to her father, a mother belonging to her children and the
wife belonging to her husband. Slowly and steadily the role of a woman has been reduced
just to belonging to someone else and having no identity of her own.

After marriage women are treated like a piece of property acquired by the husband. All these
social norms and traditions gives the male ego a boost which leads to superiority complex in
them, this causes men to start believing that they can do anything with their wives and that
consent to sex is impliedly given when she agrees to marry him. So when after marriage, if
the wife refuses to have consensual sex, they believe there’s nothing wrong in forcefully
having sex with her. But what men forget in these situations is that any type of sex which is
not consensual is called rape, and they knowingly or unknowingly are repeatedly raping their
wives. Not having legislation against marital rape is biggest reason that men don’t think twice
before raping their wives. Thus if a wife files a complaint against her husband she will have
no specific legal remedy. So the notion of a ‘good wife’ is not good for women but for men
only.

In a research it was concluded that a husband who forcefully tries to have sexual intercourse
with his wife always has some intention behind it. The reasons can be to have a feeling of
power over her, way of getting rid of his anger over her or due to some other tensions, having
a sense of insecurity or inadequacy or in other words having an inferiority complex over her,
having a sadistic nature and getting sexually aroused by causing her pain and fear, choosing
coercive sex over consensual sex and finally to ensure a sense of entitlement.18

Marital rape in itself is a type of domestic violence. It is an act of forceful and violent control
and thus, sometimes includes physical abuse, emotional abuse, mental abuse, social abuse,
financial abuse, spiritual abuse and usage of male privilege. Wife experiencing such forms of
abuse, may doubt their own worth or sanity, and may have little self-confidence. Historically,
women were seen as the property of their husbands – but it’s not necessary for wedding rings
to be traded for ownership of a woman to be assumed – and those who were raped by
boyfriends, fiancés and live-in partners can attest.19
18
Men who sexually assault their partners, available at :http://www.aphroditewounded.org/perp.html,last visited
on 18-11-16)
19
Intimate partner sexual violence: an overview, available at 
:http://www.aphroditewounded.org/overview.html#types, last visited on 16-11-16)

Page | 11
 B. Reasons for Marital Rape-

The reasons of marital rape can be many such as sexual perversions of husband, Desire to
assert superiority of men over women, petty domestic issues, attempt of women to demant
her right in marital relationship etc.

But in essence, the main reason of marital menace is wide spread gender inequality prevailing
in our society. It is another aspect of our patriarchal and male dominated system of social
norms where women whether married or unmarried do not have equal right which way. It is
another weapon in the hands of man to exploit and subjugate women.

Also, one of the reasons is the role traditionally assigned to married women in our society. In
Indian context the role as defined by society to married woman is supposed to follow her
husband’s directions fully and fulfil all his demands without questioning. So the notion of
‘goodwife’ is not good for women but for men only. Sexual relationship has been considered
as an important part of married woman’s duty towards her husband and she is not supposed to
deny that to him.

Another important factor is Economic dependence over her husband and in-laws which
bounds women from frequent practice of marital rape and makes them unable to protect
themselves against it.

And the foremost reason is the absence of legal provisions recognizing marital rape as an
offence, which encourages the man to continue with his behaviour and leaves the wife with
no remedy.

Page | 12
Chapter-2
SITUATION IN OTHER COUNTRIES-
A COMPARITIVE ANALYSIS

ENGLAND
Sir Mathew Hale gave birth to common law’s ‘marital exemption’ in rape in 1736. Ever since
then up till 1991 the marital rape immunity in England was given institutional legitimacy.
Research have shown that there were no circumstances in which the wife could be held to
have retracted her matrimonial consent to sexual intercourse It was for the first time in the
case of R v Clarke20 , that an exemption to the general common law rule of marital
20
(1927) 40 CLR 227, available at casebrief.me/casebriefs/crown-v-clarke/ last visited on 17-11-16

Page | 13
exemption was first recognized. An allegation of rape made by wife against husband as the
forceful sexual intercourse occurred when there was a separation order in force. The court
held that in such a situation the wife was under no obligation to cohabit with the husband.
Bryne J. held that ‘‘in those circumstances consent of wife had been revoked by an order of
the court for non-cohabitation’’. However in 1954 in R v. Miller 21 in a regressive decision
by Lynskey J., court granted the benefit of marital exemption and held that the wife had not
legally revoked her consent despite having presented a divorce petition. In this case the act
was held to be an assault and not considered as ‘rape’. Later in Regina v. Reid 22 the court
observed that "the notion that a husband can ,without incurring punishment treat wife
whether she be a separated wife or otherwise ,with any kind of hostile force is
obsolete".23 Similarly in R v. Roberts 24 the court of Appeals further expanded the definition
of marital rape and held that forceful sexual intercourse after order of separation would
amount to rape. However it was only in the year 1991 in case of R v. R 25, that the ‘marital
rape exemption’ was finally completely abolished by the Appellate Committee of the House
of Lords. The court held thus:

"Accepting that it is implied or presumed that a wife consents to sexual intercourse when she
marries her husband on agreement between the parties sufficient to displace the marital
exemption to law of rape may both be informal and implied from conduct .Furthermore a
wife may unilaterally withdraw implied consent to sexual intercourse by withdrawal from
cohabitation accompanied by a clear indication that the consent to sexual intercourse has
been terminated"

Again in R v. C the court held that there is no " marital exemption" to the law of rape and
accordingly the husband may be convicted of rape of his wife in case of non consensual
sexual intercourse whether he is living together or apart from his wife.

Lord Keith of Kenkel held that "the fiction of implied consent has no useful purpose to serve
today in the law of rape and that the marital rights exemption was a common law fiction
which had never been a true rule of English law’’. Court further held that ‘‘marriage in
modern times is regarded as partnership of equals. And Hales position involves that by a
21
1983] 2 AC 161 at www.e-lawresources.co.uk/R-v-Miller.php last visited on 17-11-16
22
1992] 1 WLR 793 at swarb.co.uk/regina-v-reid-hl-1992 last visited on 17-11-16
23
Ibid
24
1971) 56 Cr App R 95 available at www.e-lawresources.co.uk/R-v-Roberts.php, last visited on 17-11-16
25
1991] 3 WLR 767 

Page | 14
marriage a wife gives her irrevocable consent to sexual intercourse with her husband under
all circumstances irrespective of her health……but a wife is not obliged to obey her husband
in all things nor to suffer excessive sexual demands on part of her husband.’’ Lord lone CJ.
held this common law fiction as ‘anachronistic and offensive’. 

In 1994, Sexual Offences Amendment Act was passed which by way of Section 147
abolished the ‘marital exemption’ in England.26

EUROPEAN UNION
European Commission of Human Rights in C.R. v UK, 27 endorsed the conclusion that a
rapist remains a rapist regardless of his relationship with the victim. It was acknowledged that
this change in the common law was in accordance with the fundamental objectives of the
Convention on Human Rights, the very essence of which is respect for human rights, dignity
and freedom. 28 

UNITED STATES OF AMERICA

For over years Sir Mathew Hale’s statement alone served as a justification for a spousal
immunity involving rape charges, and was the origin for judicial recognition of the marital
rape exemption in the United States. It also served to maintain the position of men in our
society as dominators and women as their property. In Common wealth v. Forgarty 29court
following the Sir Hales preposition held that ‘a husband cannot be convicted of raping his
wife’. This was the first case where Hales preposition was first time followed. And after this
there is plethora of cases where this preposition was followed in United States

The state of Michigan was the first states to have achieved rape law reforms with the
initiative and support of women activists. One of the most significant changes was the
redefinition of "rape" to" criminal sexual conduct.”

26
Available at www.legislation.gov.uk/ukpga/2000/44 last visited on 18-11-16
27
At swarb.co.uk/sw-v-the-united-kingdom-cr-v-united-kingdom-echr-22-nov-1995/ last visited on 18-11-16

28
Ibid
29
Available at masscases.com/cases/sjc/419/419mass456.html last visited on 18-11-16

Page | 15
In Smith v. State30, where the court observed that ‘‘the principal of ‘implied consent’ should
be abandoned. Forced sexual intercourse is a violation of the person’s bodily integrity
whether it is committed within or outside marriage’’. And in 1984 People v. Liberta 31 New
York court held ‘marital exemption’ clause as unconstitutional and violative of the equal
protection clause guaranteed under the constitution. The court in this case could not find any
rational basis for distinguishing between the marital rape and non-marital rape.

By 1993, largely in response to the women’s rights and equality movement, every state and
the District of Columbia had passed laws against marital rape. Since 1993, all 50 states and
DC have enacted laws against marital rape. The only marital exemption that still exists in
some states is for statutory rape. All states now recognize rape within marriage as a crime,
and most charge the crime in the same way that rape between strangers would be charged.32

In South Dakota state there is a classification of rape cases into two degrees. Rape is of the
first degree if the victim is not the defendant’s voluntary social companion on the occasion of
crime and has not previously permitted him sexual contract .Marriage or previous sexual
intercourse however reduces the offence to second degree.33 Hawaii also classifies rape in a
similar classification. Later on, state of Oregon in 1977 made ‘spousal rape’ a new offence.
Under this new offence a husband could be convicted for raping his wife. State of Nebraska
also enacted a law under which even live-in husband can be convicted under the offence of
rape.34 

Canada
Marital rape was abolished in year 1983 after the introduction of the bill C-127 which
repealed the existing rape statute and marital rape was criminalized. In 2011, The Canadian
Supreme Court in R v. J.A 35, Chief Justice McLachlin emphasized that the relationship
between the accused and the complainant does not change the nature of inquiry. The

30
alr.law.duke.edu/2015/11/smith-v-state/ last visited on 18-11-16
31
64 N.Y.2d 152 (1984) at www.kylewood.com/familylaw/liberta.htm last visited on 18-11-16
32
Marital Rape Laws, available at : http://www.criminaldefenselawyer.com/marital-rape-laws.html last visited
on 18-11-16)
33
Ibid
34
Ibid
35
At http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7942/index.do last visited on 18-11-16

Page | 16
defendant cannot argue that the complainant’s consent was implied by the relationship
between the accused and the complainant.36 

New Zealand
The marital rape exemption was abolished in 1985 by the present Section128 of Crimes Act,
1981. Subsection 4 provides that ‘ a person can be convicted of sexual violence in respect of
sexual connection with another person notwithstanding that they are married at the time
sexual connection occurred.37

Bhutan
In 1996, marital rape was criminalized by way of amendment to the marriage Act.38

South Africa
In 1993, South Africa criminalized marital rape, reversing the common law principle that a
husband could not be found guilty of raping his wife. The Prevention of Family Violence
Act, 1993, Section 5 provides that ‘‘ Not withstanding anything to the contrary contained in
any law or in the common law, a husband may be convicted of the rape of his wife.’’ In 2007
Criminal Law (Sexual Offences and Related Matters) Amendment Act in ‘Sexual Offences
Act’ was done which provides in Sec. 56 (1), that ‘a marital or other relationship between the
perpetrator or victim is not a valid defence against the crimes of rape or sexual violation’39

Australia
In Australia, the common law ‘marital rape immunity’ was legislatively abolished in 1976. 

36
Ibid
37
At www.legislation.govt.nz/act/public/1961/0043/latest/whole.html last visited on 18-11-16
38
At www.nab.gov.bt/.../acts/.../Marriage_(Amendment)_Act_of_Bhutan_2009eng4th.pdf last visited on 19-
11-16
39
At https://www.issafrica.org/crimehub/uploads/sexual_offences_act32_2007_eng.pdf last visited on 19-11-
16)

Page | 17
In 1991, R v. L40Australian High Court through Mason CJ, held that: ‘If it was ever the
common law that by marriage a wife gave irrevocable consent to sexual intercourse by her
husband, it is no longer the common law’.41

In other jurisdiction like Czechoslovakia, and Poland (which has a law dating back to
procommunist days of 1932), husbands may be charged with marital rape. Marriage does not
give a right to force one’s wife to have sexual intercourse with him.

In Sweden it has been possible to prosecute a husband for marital rape since 1965, though the
crime is considered less grave in view of the spousal relationship. Rape by a stranger carries a
prison term of no less than two and not more than ten years. Husbands can be prosecuted only
for Våldförande(literal meaning force-carrying which implies sexual coercion or assault),
which carries a maximum sentence of four years' imprisonment.

In Denmark, the Penal Code defines rape as sexual intercourse obtained by force with any
woman. Once again the penalties to which husbands-and others who have had a sexual
relationship of a lasting kind-are lighter.' The Norwegian law is similar to the Danish law in
this regard.

 In Mexico, the country Congress ratified a bill that makes domestic violence punishable by
law. If convicted, marital rapists could be imprisoned for 16 years. In Sri Lanka, recent
amendments to the Penal Code recognize marital rape but only with regard to judicially
separated partners, and there exists great reluctance to pass judgment on rape in the context of
partners who are actually living together

Still many countries like India, Bangladesh, Pakistan, Yemen, Kuwait, Iran, and Egypt etc.
have not accepted marital rape as a crime and thus there is no legal remedy available for
victims of such crimes. But even in countries where it is a crime, the onus of proof still lies on
the women. For women who are married it is difficult to prove that she has not consented for
sexual intercourse thus complicating such provisions

40
1991) 174 CLR 379 
41
Ibid

Page | 18
Chapter 3
INTERNATIONAL LEGAL
FRAMEWORK

Page | 19
International law and policy on domestic violence has developed in the United Nations and in
regional organizations such as the Council of Europe, and is in the process of being
developed in the European Union. The recognition that domestic violence is a human rights
violation under international law required decades of work by activists around the world.
Now, international legal instruments and policy statements make clear that states have a duty
under international law to prevent domestic violence and punish domestic violence offenders.

The United Nations’s Treaties and Conventions

Early human rights law enacted by the United Nations is relevant to domestic violence. The
International Bill of Human Rights consists of The Universal Declaration of Human
Rights, adopted by the United Nations General Assembly in 1948, and its implementing
covenants, the International Covenant on Civil and Political Rights (ICCPR) and
theInternational Covenant on Economic, Social and Cultural Rights (ICESCR), which
entered into force in 1976. While these documents do not explicitly address domestic
violence, they, along with the Optional Protocol to the ICCPR, articulate a state’s duty to
protect fundamental human rights that are commonly violated in domestic violence cases.
Those rights include the right to life, the right to physical and mental integrity, the right to
equal protection of the laws and the right to be free from discrimination.

The Convention on the Elimination of All Forms of Discrimination Against Women,

entered into force in 1981, also does not explicitly include language on violence against
women or domestic violence but guarantees the human rights listed above. In 1992, the
Committee on the Elimination of All Forms of Discrimination Against Women
(CEDAW), which is the United Nations committee charged with monitoring the Convention,
adopted General Recommendation Number 19. General Recommendation No. 19,
Committee on the Elimination of Discrimination Against Women,42 This recommendation
addresses the Women’s Convention’s silence on violence and states that gender based
violence is a “form of discrimination which seriously inhibits women’s ability to enjoy rights
and freedoms on a basis of equality with men.” This recommendation was the first time a
42
U.N. Doc A/47/38 (1992). Available at hrlibrary.umn.edu/gencomm/generl19.htm last visited on 22-11-16)

Page | 20
human rights treaty or convention was officially interpreted to prohibit violence against
women. The recommendation made clear that domestic violence was included.

United Nations’ Conference Documents

United Nations conference documents address the issue of domestic violence. They are
widely recognized as consensus documents—that is, documents that reflect an international
consensus on the state of international law. While not legally enforceable, they are, as one
writer states, “signposts of the direction in which international human rights law is
developing and should influence states that have accepted a commitment of progressive
development toward enhanced respect for human rights in their international conduct and
domestic law.”43

The Report of the World Conference of the United Nations Decade for Women: Equality,
Development and Peace, Copenhagen, July 1980, 44was the first time domestic violence was
explicitly mentioned in an official document of the United Nations. Domestic violence is
referred to several times in the document. The Legislative Measures section states:
Legislation should also be enacted and implemented in order to prevent domestic and sexual
violence against women. All appropriate measures, including legislative ones, should be
taken to allow victims to be fairly treated in all criminal procedures.

At the 1985 Third World Conference on Women in Nairobi, Kenya, domestic violence
received significant attention. The final conference report called on governments to
“undertake effective measures, including mobilizing community resources to identify,
prevent and eliminate all violence, including family violence, against women and to provide
shelter, support and reorientation services for abused women and children.” Report of the
World Conference to Review and Appraise the Achievements of the United Nations Decade
for Women: Equality, Development and Peace, held in Nairobi, July 1985, including Nairobi
Forward Looking Strategies for the Advancement of Women, The final conference
45

document from Second World Conference on Human Rights, held in Vienna in June 1993,

43
Rebecca J.Cook, The Elimination of Sexual Apartheid: Prospects for the Fourth World Conference on Women
29 (1995
44
U.N. Doc A/CONF.94/35 (80.IV.30),
45
U.N. Doc. A/CONF.116/28Rev.1 (85.IV.10). www.un.org › Economic and social development › Development
agenda last visited on 22-11-16)

Page | 21
was the Vienna Declaration and Programme of Action 12 July 1993 46. The Vienna
Declaration stated:

In particular, the World Conference on Human Rights stresses the importance of working
towards the elimination of violence against women in the public and private life . . . the
elimination of gender bias in the administration of justice and the eradication of any conflicts
which may arise between the rights of women and the harmful effects of certain traditional or
customary practices.47

Violence against women, including domestic violence, was a major focus at the 1995 Fourth
World Conference on Women in Beijing, China. The conference document, the Beijing
Platform for Action, identifies domestic violence as a human rights violation. The Platform
states: “Violence against women both violates and impairs or nullifies the enjoyment by
women of their human rights and fundamental freedoms.” It addresses violence against
women as a separate “Critical Area of Concern” and includes it under the “Human Rights”
section. The Beijing Platform outlines many specific actions governments, nongovernmental
groups and others should take to confront and combat violence against women, including
strengthening legal systems’ response to domestic violence.

The Declaration on the Elimination of Violence Against Women In 1993, the United Nations
General Assembly adopted the Declaration on the Elimination of Violence Against
Women (DEVAW). This landmark document was a result of efforts within the United
Nations Commission on the Status of Women (CSW) and the Economic and Social
Council (ECOSOC). While DEVAW does not have the binding legal authority of a
convention or treaty, as a United Nations General Assembly declaration, it is universal in
coverage and a strong statement of principle to the international community. Identifying the
subordination of women as a principle cause of domestic violence,

DEVAW states, “violence against women is a manifestation of historically unequal power

relations between men and women, which have led to domination over and discrimination
against women by men.” DEVAW condemns the crucial social mechanisms by which women
46
(A/CONF.157/23),
47
Ibid

Page | 22
are forced into a subordinate position as compared with men” and defines violence as that
occurring both in “private or public life.48” Importantly, DEVAW provides specific steps
member states should take to combat domestic violence, including legal system reform.
DEVAW provides that states should investigate and punish acts of domestic violence,
develop comprehensive legal, political, administrative and cultural programs to prevent
violence against women, provide training to law enforcement officials and promote research
and collect statistics relating to the prevalence of domestic violence.

48
At www.un.org/documents/ga/res/48/a48r104.htm last visited on 22-11-16

Page | 23
Chapter 4
POSITION IN INDIA

Page | 24
In India marital rape exists de facto but not de jure. Under Sec. 375 Indian Penal Code 1860
(hereinafter referred to as IPC), a man is said to commit ‘rape’ when he has sexual
intercourse with a woman ‘against her will’ or ‘without her consent’. However, exception to
Section 375 says that ‘sexual intercourse by a man with his own wife, the wife not being
below 15 years of age, is not a rape’.  However under Indian Law ‘marital rape’ is partially
recognized. It is mentioned in Sec. 376-B where intercourse by a man with his wife during
separation under a custom or usage or a decree of judicial separation without her consent is
made punishable with imprisonment of maximum two years and fine.

Attempts to Reform the Law Relating to Marital Rape in India

The law relating to marital rape has remained more or less unchanged since its introduction in
the IPC in 1860. In fact till the year 1983 , the law on marital rape was amended thrice , only
to change the age of the wife mentioned in the exemption to marital rape under section
375.Even after 1983 the status quo relating to marital rape was maintained as the successive
law commission missed the opportunities to bring a positive change in law.

In the 42nd Law Commission report49 there was a recommendation relating to marital

rape exemption in section 375. The report recommended two major changes in the law
relating to marital rape exemption as it existed at that time, they were:-

 The Commission recommended that marital rape should be removed from the scope
of section 375 and intercourse by a man with his minor wife to be placed as a separate
offence.
 The commission also considered the position of legally separated wives vis-à-vis the
offence of rape.

In its report the 42nd Law Commission also put forward the necessity of excluding marital
rape from the ambit of section 375. It said, “Naturally the prosecution for this offence are
very rare. We think it would be desirable to take this offence altogether out of the ambit

49
Available at lawcommissionofindia.nic.in/1-50/report42.pdf last visited on 22-11-16

Page | 25
 of section 375 and not to call it rape even in technical sense. The punishment for the
offence may also be provided in a separate section.50

The recommendations were again made by the 84th Law Commission.51 Following

which the Criminal Law Amendment Bill was passed in 1983, which recognised sexual
inter course with a minor wife (below the age of 15 years) and sexual intercourse without
the consent of a judicially separated wife an offence under section 375 and section 376A
respectively. But no heat was given about the consent of wife who is not judicially
separated.

Another opportunity was missed when the 172nd Law Commission52submitted its
report on review of rape laws pursuant to the writ petition filed by SAKSHI 53an
organization involved in issues related to women and children , asking for a revised
definition of rape under IPC. The petitioner on the issue of marital rape contended that the
exemption of marital rape should be deleted. They based their argument on the fact that
when the husband causes some physical injury to the wife, he can be punished under
appropriate section of IPC and the fact that he is husband of the victim is not an
extenuating circumstance recognised by law , then why should it be made one in case of
sexual assault by husband.

However the Law commission refused to recognise this argument and stated that deleting
the marital rape exemption would amount to unnecessary interference with marital
relationship. In the petition filed by SAKSHI, similar contentions were raised against
section 376A. Although the Law Commission appreciated the force of the argument , it
said that it cannot turn a blind eye to the fact that even when the wife is living separately
the bonds of marriage remains unsevered. But it suggested a higher punishment under
section 376 A and said that it should definitely be made as soon as possible, Because of
reason, that when a man who causes hurt or any other physical injury to his own wife is
liable to be punished for such offence like any other person causing such hurt they why
should a husband who sexually assaults his wife, who is living separately under a decree
of separation or under any custom/usage, be not punished like any other person?

50
Ibid
51
lawcommissionofindia.nic.in/51-100/Report84.pdf last visited on 22-11-16
52
www.lawcommissionofindia.nic.in/rapelaws.htm last visited on 22-11-16
53
AIR 2004 SC 3566

Page | 26
 Equally shocking was statement of the Joint Committee which had introduced Sec 376
A  ,when it justified lower punishment under this section on the ground that "rape" of
judicially separated wife may lead to a reconciliation of the spouse and therefore ,it
deserves lesser punishment. 

Lok Sabha debates show that some members of the legislature doubted the propriety of
concept of marital rape itself and thereby suggested that sexual relationship between
husband and wife under no circumstance be treated as an offence. The Indian mindset not
only overlooked the existence of something like rape within marriage but also justified it
by looking at it as a means of reconciliation.

A significant step towards protection of women was taken in the form of the Protection
Of women from Domestic Violence Act 2005 .Although the act is comprehensive in its
categorization of domestic violence it is inadequate to deal with the problem of marital
rape .It only provides for a civil remedy which may not be a proper sanction in cases of
such sexual violence. It has been contended by critics that treating the problem of marital
rape under civil law will undermines the serious nature of the issue. The problem of
marital rape goes far beyond domestic violence .It is a unique kind of violence which
encompasses physical sexual psychological trauma of being raped by someone who has
vows to love and honour the spouse.

The UN Committee on the Elimination of Discrimination against Women ("CEDAW

Committee") in February 2007 has recommended that the country should "widen the
definition of rape in its Penal Code to reflect the realities of sexual abuse experienced by
women and to remove the exception of marital rape from the definition of rape….." 54

In a recent report by the Justice Verma Committee on Amendments to Criminal Law

recommended that the exception for marital rape should be removed.  The committee also
recommended that the law ought to specify that:

A marital or other relationship between the perpetrator or victim is not a valid defence
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;

54
Supra note 42

Page | 27
 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.

On the basis of Justice Verma committee.The recent Criminal Amendment Act, 2013
satisfies some of the requirements that were proposed in the Law Commission Report in
172nd Commission.55 Section 375 has been expanded and the definition of rape under sub-
section (a) states that rape includes penetration of penis in the mouth, urethra or anus of a
woman against her will.56 Further by addition of Section 376A, 376B, 376C and 376D
rape laws have been made more stringent.

Even though there are many positive reforms brought by Criminal Amendment Act, 2013
yet it has a number of shortcomings. One of them being non-inclusion of marital rape
within the ambit of the definition of rape. Various criminal law reports and
recommendations given by Justice J.S. Verma Committee have fallen on deaf ears and it
should be realised that punishment of marital rape is important to protect the woman.

Legal Aspects and Present Laws

RIGHT TO LIVE WITH HUMAN DIGNITY

In Francis Corallie Muin v. Union Territory of Delhi case, the concept of right to life
under Article 21 of the Constitution was highlighted. According to this case ART 21
includes the right to live with human dignity and all that goes along with it, namely, the
bare necessities of life such as adequate nutrition, clothing and shelter over the head and
facilities for reading, writing and expressing oneself in diverse forms, freely moving
about and mixing and mingling with fellow human beings.57The right to live with human
dignity is one of the most basic feature of the right to life which recognizes the autonomy
of an individual.

The Supreme Court has held in a catena of cases that the offence of rape violates the right
to life and the right to live with human dignity of the victim of the crime of rape. One

55
Badapbiang T. Dkhar, Protecting India’s Woman: The need for Criminalization of Marital rape and Criminal
Amendment Act, 2013 ,Alexis Journal of Public Policy and Law, Vol 1 Issue 1
56
Criminal (Amendment) Act, 2013
57
AIR 1981 SC 802

Page | 28
 such example is The Chairman, Railway Board v. Chandrima Das.58 The Supreme
Court has observed that rape is not merely an offence under the Indian Penal Code, but is
a crime against the society as whole. In Bodhisattwa Gautam v. Subhra
Chakraborty court held that rape is less of a sexual offence than an act of aggression
aimed at degrading and humiliating the women 59. Thus the marital exemption doctrine is
violative of wife’s right to live with human dignity. Any law which violates women’s
right to live with dignity and gives husband right to force wife to have sexual intersourse
without her will is thus unconstitutional.

RIGHT TO SEXUAL PRIVACY

Right to privacy is not mentioned in the Indian Constitution. Nevertheless, in a series of
cases like  Kharak Singh v. State of U.P.; Govind v. State of Madhya Pradesh,; Neera
Mathur v. LIC etc, the Supreme Court has recognized that a right of privacy is
constitutionally protected under scope of Article 21.60The Right of Privacy under Article
21 includes a right to be left alone and not disturbed. Any form of forceful sexual
intercourse violates the right of privacy, sexual 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 will.

In the case of State of Maharashtra v. Madhkar Narayan61 the Supreme Court has held
that every woman is entitled to her sexual privacy and it is not open to for any and every
person to violate her privacy as and whenever he wished. In the landmark case
of Vishakha v. State of Rajasthan62 , the Supreme Court extended this right of privacy to
workplaces as well. Further, along the same line we can interpret that there exists a right
of privacy to enter into a sexual relationship even within a marriage. Thus by
decriminalizing rape within a marriage, the marital exemption doctrine violates this right
of privacy of a married woman and is hence is unconstitutional.

58
AIR 2000 SC 988.
59
AIR 1196 SC 922
60
AIR 1963 SC 1295; AIR 1975 SC 1378;(1992) 1 SCC 286
61
AIR 1991 SC 20
62
AIR 1997 SC 3011

Page | 29
RIGHT TO BODILY SELF- DETERMINATION
The right to bodily self-determination can also come under the ambit of Article 21
although the Constitution does not expressly recognize it, such a right exists in the larger
framework of the right to life and personal liberty. The concept of right of self-
determination is based on the belief that the individual is the ultimate decision maker in
matters closely associated with her/his body or well-being and the more intimate the
choice, the more robust is the right of the individual. The is the only authors of his own
fate which determines his existence. Sexual relationship is one of the most personal
choice that a woman reserves for herself. Choices related to sexual intercourse is a form
of self expression and self-determination. If the law tries to take away the right of
expressing and revoking such consent definitely deprives a woman her  constitutional
right of bodily self-determination. So, It is submitted that the marital exemption doctrine
effectively deprives a married woman her right to bodily to self-determination and
interferes in her most personal choice making.

MARITAL RAPE AND DIVORCE

Since marital rape is not recognized as a crime in India, a woman cannot take the same as
a ground for divorce, but marital rape can and should be at least acknowledged as a type
of cruelty against the wife, which can be a valid ground for divorce under section 13 (1)
(i) (ia) of the Hindu Marriage Act, 1955. Cruelty and its various provisions given under
different laws in India are explained as follows-

Meaning of cruelty:
The definition of cruelty as stated in Black’s Law Dictionary is ‘the intention and
malicious Infliction of mental or physical suffering on a living creature, esp. a human;
abusive treatment.’63

Cruelty is explained rather than being defined in Section 498A of the Indian Penal Code.
It states that any conduct which is of such a nature as is likely to drive the woman to
commit suicide or to cause grave injury whether mental or physical or harassment of the
woman to meet unlawful demand.

63
Bryan A. Gaener, Black’s Law Dictionary, 9th Ed. , 2009, p.434.

Page | 30
 There have been various acts which have tried and failed to properly define the term
cruelty like the Hindu Marriage Act, 1955 or the Dowry Prohibition Act 1961 or the
Indian Evidence Act.

This term was clearly defined in the landmark judgment in Shobha Rani v. Madhukar
Reddy;64 it was observed that the word “cruelty” has not been defined. Indeed it could not
have been defined. It has been used in relation to human conduct or human behavior. It is
the conduct in relation to or in respect of matrimonial duties and obligations. It is a course
of conduct of one which is adversely affecting the other. The cruelty may be mental or
physical, intentional or unintentional. If it is physical the court will have no problem to
determine it. It is a question of fact and degree. If it is mental the problem presents
difficulty.’

Provisions for cruelty

Cruelty, one of the grounds for judicial separation under Section 10(1) (b) of A person
may file a petition for a decree of judicial separation on the ground of cruelty which can
cause an apprehension that it will be harmful to live with the spouse

Cruelty, one of the grounds for divorce under Section 13(1) (i -a): Any marriage may, on
a petition presented by either the husband or the wife, be dissolved on the ground that the
other party has, after the solemnization of the marriage, treated the petitioner with
cruelty.65

Cruelty as defined in the former part as per Indian Penal Code includes harassment and
marital rape can be included as a kind of sexual harassment by the husband on his wife.
The Indian Legal System does not support women who are above fifteen years of age and
allege that they have been raped by their husbands, this also demoralizes the spirit of
women. This unsupportive nature of the society and family also makes it difficult for
women to bring in light that she has been raped by her husband. Men mostly rape their
partners just to experience the feeling of power and the pleasure they gain by exercising
their dominance over the other. It can be easily understood that husband’s who rape their
wives are not serial rapists but just men in need of ego boosts to show their manhood. In
India being in a marriage is apparently thought to be an indirectly given consent to have
sexual intercourse, even if done violently, thus women should have a right take to divorce

64
1988 SCC (1) 105 JT 1987 (4) 433.
65
The Hindu Marriage Act, 1955

Page | 31
 on grounds of Marital Rape. The same should be included as a ground for divorce in the
Hindu Marriage Act and until necessary changes are made by the judicial system, women
will continue to be subjected to such atrocities. 

Lacunae in Indian law

The whole legal system relating to rape is in a mess, replete with paradoxes. The major
legal lacunae that come in the way of empowering women against marital rape are:

 — The judicial interpretation has expanded the scope of Article 21 of the Constitution
of India by leaps and bounds and “right to live with human dignity”66 is within the
ambit of this article. Marital rape clearly violates the right to live with dignity of a
woman and to that effect, it is submitted, that the exception provided under Section
375 of the Indian Penal Code, 1860 is violative of Article 21 of the Constitution.

 — Article 14 of the Constitution guarantees the fundamental right that “the State shall
not deny to any person equality before the law or the equal protection of the laws
within the territory of India”. Article 14 therefore protects a person from State
discrimination. But the exception under Section 375 of the Indian Penal Code, 1860
discriminates with a wife when it comes to protection from rape. Thus, it is submitted,
that to this effect, exception provided under Section 375 of the Indian Penal Code,
1860 is not a reasonable classification, and thus, violates the protection guaranteed
under Article 14 of the Constitution.

 — Though protection of the dignity of women is a fundamental duty under the

Constitution,67casting a duty upon every citizen “to renounce practices derogatory to
the dignity of a woman”; it seems that domestic violence and marital rape do not come
under the definition of dignity.

 — The “United Nations Convention on the Elimination of All Forms of

Discrimination against Women” (CEDAW), of which India is a signatory, has viewed
that this sort of discrimination against women violates the principles of equality of
rights and respect for human dignity. Further, the Commission on Human Rights, at
its fifty-first session, in its Resolution No. 1995/85 of 8-3-1995 entitled “The
66
 Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608
67
Article 51-A(e) of the Constitution of India

Page | 32
 elimination of violence against women” recommended that marital rape should be
criminalized.

 — A husband cannot be prosecuted for raping his wife because consent to matrimony
presupposes consent to sexual intercourse. This implies that having sex anytime,
anywhere and of any sort is an implied term of the contract of marriage, and the wife
could not breach that term of the contract.

 — The law prevents a girl below 18 years from marrying, but on the other hand, it
legalizes non-consensual sexual intercourse with a wife who is just 15 years of age.

 — The Indian Penal Code, 1860 states that it is rape if the girl is not the wife of the
man involved and is below 16, even if she consents. 68 But if she is a wife, not below
15 and does not consent, it is not rape.

 — Another paradox is that according to the Indian Penal Code, 1860, it is rape if there
is a non-consensual intercourse with a wife who is aged between 12 and 15 years.
However, the punishment may either be a fine or an imprisonment for a maximum
term of 2 years or both,69 which is quite less in comparison to the punishment
provided for rape outside the marriage.

 — Though the advocates of women’s rights secured a clause in 1983 under which it is
unlawful for a man to have sexual intercourse with his separated wife pending
divorce, the courts are reluctant to sentence husbands in spite of the law.

68
 Section 375(6) of the Indian Penal Code
69
Section 376 of the Indian Penal Code

Page | 33
Chapter-5
SUGESTIONS AND CONCLUSION

REBUTTAL OF ARGUMENTS AGAINST CRIMINALIZATION OF MARITAL

RAPE:

Page | 34
The following are some of the common arguments given against the idea and proposal of
criminalizing marital rape as an offence: There is no need to give legislative attention to
marital rape, as it is quite uncommon.70

1. Due to the near impossibility of proving marital rape, its criminalization would only serve
as an increased burden to the already overburdened legal system.

2. Dissatisfied, angry, vengeful wives might charge their innocent husbands with the offence
of marital rape.

3. There is an implied consent to have sexual intercourse when a woman marries a man.

4. Marital rape laws would destroy many marriages by preventing any possible reconciliation.

A perusal of these arguments would make it quite evident that these are mere fanciful, lame
excuses of a male-dominated society that lack any sort of legal substance or moral force.

A rebuttal of the abovementioned arguments is not very difficult.

Marital rape is a common but under-reported crime. A study conducted by the Joint Women
Programme, an NGO, found that one out of seven married women had been raped by their
husband at least once. They frequently do not report these rapes because the law does not
support them. As to the second argument, that marital rapes are difficult to prove, it may be
showed that criminalization of marital rape, serves to recognize rape in marriage as a criminal
offence and would have a deterrent effect on prospective rapist husbands. The mere fact that
marital rape would be very difficult to prove is no reason for not recognizing it as a crime.

As regards the third argument of women foisting malicious charges, it may be noted that if
proving a claim of rape in marriage is hard, proving a fabricated claim will be even more
difficult. Because of the associated stigma of rape trials, it is unlikely that women will elect to
undergo such an experience out of sheer spite. Besides, the criminal justice system provides
inherent safeguards such as the requirement of proof beyond any reasonable doubt. This is no
justification to say that the victims should be denied protection simply because someone
might be at risk of a fabricated case.

70
Mishra, Saurabh & Sarvesh Singh, Marital Rape — Myth, Reality and Need for Criminalization, (2003)
Practical Lawyer WebJour 12, <www.ebc-india.com/lawyer/articles/645.htm>, visited on 22-11-16

Page | 35
As far as the fourth argument is concerned, it is true that a wife impliedly consents to sexual
intercourse with her husband after marriage, but the expression of love through sexual
intimacy is not the same as forced sex. On the other hand, it strikes at the very foundation of
matrimony irrespective of whether the marriage is a sacrament or a contract. By no stretch of
imagination can it be said that a person consents to harm or violence by marriage, and neither
does the law permit any person to give such consent.

Finally, a marriage in which a husband rapes his wife is already destroyed. Attempt to hold
together marriages may be one of the objectives of matrimonial laws. But it cannot override
the fundamental objective of law in general and that of criminal law in particular, which is to
protect and preserve the bodily integrity of a human being. Thus, withholding justice and
denying equal protection for preserving marriages, at best, can be an improper goal of law.
The law should not encourage forced cohabitation and should not protect a raping husband.

Suggestions for reform

In light of the above discussion following suggestions are made:

 — Marital rape should be recognized by Parliament as an offence under the Indian

Penal Code.

 — The punishment for marital rape should be the same as the one prescribed for rape
under Section 376 of the Indian Penal Code.

 — The fact that the parties are married should not make the sentence lighter.

 — It should not be a defence to the charge that the wife did not fight back and resisted
forcefully or screamed and shouted.

 — The wife should have an option of getting a decree of divorce if the charge of
marital rape is proved against her husband. Though a case of marital rape may fall
under “cruelty” or “rape” as a ground of divorce, it is advisable to have the legal
position clarified.

Page | 36
  — Demand for divorce may be an option for the wife, but if the wife does not want to
resort to divorce and wants to continue with the marriage then the marriage should be
allowed to continue.

 — Corresponding changes in the matrimonial laws should be made.

Conclusion

It is conceded that changing the law on sexual offences is a formidable and sensitive task, and
more so, in a country like India, where there is a contemporaneous presence of a varied and
differentiated system of personal and religious laws that might come into conflict with the
new amendments in the statutory criminal law. Further, though, there is need for substantial
changes in the law on sexual offences such as making them gender-neutral and eliminating
the inequalities, a radical overhauling of the structure of sexual offences is not
advisable. 71The immediate need is criminalization of marital rape under the Indian Penal
Code. But, mere declaration of a conduct as an offence is not enough. Something more is
required to be done for sensitizing the judiciary and the police. There is also a need to educate
the masses about this crime, as the real objective of criminalizing marital rape can only be
achieved if the society acknowledges and challenges the prevailing myth that rape by one’s
spouse is inconsequential.

"We have to get away from the tradition of man's necessities and woman's obedience to
them."- Alice Stockham,(An American feminist) 1898.72

71
(Nicolson & Bibbings, 2000)p. 185
72
Stockham, Alice B. Tokology: A Book for Every Woman, Sanitary Publishing Co., Illinois, 1886.

Page | 37
Bibliography
BOOK SOURCE-
Badapbiang T. Dkhar, Protecting India’s Woman: The need for Criminalization of Marital
rape and Criminal Amendment Act, 2013 ,Alexis Journal of Public Policy and Law, Vol 1
Issue 1

Bryan A. Gaener, Black’s Law Dictionary, 9th Ed. , 2009

Dipa Dube, License to Rape: The Indian Viewpoint, Indian Institute of Technology – Rajiv
Gandhi School of Intellectual Property Law, February 14, 2006

Diana C. Moses, "Livy's Lucretia and the Validity of Coerced Consent in Roman Law," in
Consent and Coercion to Sex and Marriage in Ancient and Medieval Societies (Dunbarton
Oaks, 1993),

Gillian Clark, Women in Late Antiquity: Pagan and Christian Life-styles(Oxford University

Press, 1993)

Gosselin, D.K., Heavy Hands — An Introduction to the Crimes of Domestic Violence (1st

Edn., Prentice-Hall Inc., New Jersey, 2000).

Morton Hunt, (1979)“Legal Rape,” Family Circle .

Nicolson, D., & Bibbings, ,. L. (2000). Feminist Perspectives on Criminal Law. London:
Cavendish Publishing Ltd.

Rebecca J.Cook, The Elimination of Sexual Apartheid: Prospects for the Fourth World
Conference on Women 29,1995

Social Psychology, "Marital Rape Exemptions," and Privacy, M A Small ; P A Tetreault,

Behavioral Sciences and the Law  Volume:8  Issue:2  Dated:(Spring 1990) 

Stockham, Alice Tokology: A book for Every woman. Illions: Sanitary Publishing
Company.1898.

Page | 38
STATUTES -

Criminal (Amendment) Act, 2013

The Constitution of India

The Hindu Marriage Act, 1955

The Indian Penal Code

WEBSITES-

http://ncrb.nic.in

http://www.snehamumbai.org

http://www.icrw.org

http://rapeinfo.wordpress.com

https://www.fbi.gov

https://indianhomemaker.wordpress.com

https://masscases.com

http://www.aphroditewounded.org

:http://www.aphroditewounded.org

www.e-lawresources.co.uk

www.swarb.co.uk/

www.legislation.gov.uk

alr.law.duke.edu/

www.kylewood.com

http://www.criminaldefenselawyer.com

Page | 39
http://scc-csc.lexum.com

www.legislation.govt.nz

www.nab.gov.bt

https://www.issafrica.org

hrlibrary.umn.edu

www.un.org

www.lawcommissionofindia.nic.in

Page | 40