MARITAL RAPE – Recognizing it as a crime

“No man is good enough to govern any women without her consent.”
- Susan B.
Anthony
Marriage is an institution which is considered to be very sacrosanct in the eye of law
as well as society. Conjugal rights of partners in a marriage include sexual
intercourse with each other but it does not mean that it should be forced upon them.
If one of the partners is not willing to involve in any physical relation and does not
give her consent, it is her fundamental right to say no to protect her life and dignity.
Marital Rape is not criminalized under Indian Law and paper would outline its
importance for recognizing it as a crime. Black’s Law Dictionary defines Rape as in
Criminal Law, the unlawful carnal knowledge of a woman, by a man forcibly and
against her will.
This paper will highlight the catastrophic condition of women in our society who are
going through this suffering how our law can act as a bolster to them.

Table of Contents
1) Introduction
i) Marital rape types
2) Legal History of Marital Rape
3) Why marital rape is not recognized as a crime under Indian Law and how it
goes against our constitutional morality?
4) Countries Recognizing Marital rape
5) Remedies Available under Indian Law and its Lacunae
i) Constitutional Remedies
ii) Protection of Women from Domestic Violence Act, 2005
iii) Criminal Law
6) What can be done?
7) Conclusion
INTRODCUTION

Marital Rape can be understood as a sin for a wife and a privilege for a husband
under Indian Legal scenario. Under Indian Penal Code section 375 do not
criminalizes Marital Rape whereas, gives an exception where a spousal rape is not a
rape in the eyes of law. There are various discrepancies in criminalizing it.
According to our Indian Society marriage is considered to be a sacrosanct institution
where a husband committing rape upon his wife is not criminal but a right of a
husband as it is a misconceived notion with people that a wife is a husbands property
and is obliged to all his needs. Since 1947 till date our country has evolved to such a
great extent. Currently, In 2019 SC decriminalized section 377 and 497 but we are
still far away from recognizing marital rape as crime India. What can be the reasons
and constraints that do not recognize marital rape as a crime under Indian penal
system?
The Idea of this ‘sacrosanct’ institution of marriage dished out by mainstream Indian
cinema is a myth and is contrary to women’s perception 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.1 Women suffering from marital rape are
not left with any remedy as most of them lack audacity to come out and report and
even if they report they end up getting no justice due various lacunae under our legal
system. In further parts we will discuss about these lacunae.
Marital Rape Types –
The following three types of marital rape exist as identified by our legal scholars2-
Battering Rape: In ‘Battering rape’, women experience both physical and sexual
violence in the relationship and in various ways. Some are battered during 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.

1
Saurabh Mishra and Sarvesh Singh, Marital Rape – Myth, Reality and Need for Criminalization, PL
WebJour 12.1,1(2003).
2
Gosselin, D.K., Heavy Hands – An Introduction to the Crimes of Domestic Violence ( 1st Edn.
Prentice Hall Inc., 2000).
Force Only Rape: In what is called ‘force only rape’ 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.
Marital rape is a type of sexual violence against women. The problem of violence
against women is not a myth, but a reality. It is as old as the world. Violence in
homes is prevalent all over the world. The type, frequency, intensity and control of
violence against women vary from time to time and place to place. Whatever form of
family joint or nucleolus, a women is expected to adjust herself to her father in law’s
family to which she goes after marriage. 3
The Status of women in India, both historically and traditionally has been one of the
respected reverence. In India, women are guaranteed equality, freedom, opportunity
and protection by the Constitution and several legislations.4
Legal History of Marital Rape:
At common law, husbands were exempt from prosecution for raping their wives.
Over the past quarter century, this law has been modified somewhat, but not entirely.
A majority of states still retain some form of the common law regime: They
criminalize a narrower range of offenses if committed within marriage, subject the
marital rape they do recognize to less serious sanctions, and/or create special
procedural hurdles for marital rape prosecutions? The current state of the law
represents a confusing mix of victory and defeat for the exemption's contemporary
feminist critics. Virtually every state legislature has revisited the marital rape
exemption over the last twenty-five years, but most have chosen to preserve the
exemption in some substantial manifestation. With rare exception, moreover, courts
have not invalidated state laws protecting marital rape. Political protest and
legislative action, rather than any clear judicial statement of constitutional norms, has

3
Dr. Nitu Nawal & Dr.. R.K. Sharma, Domestic Violence Against Women: Legal Protection,
Legislative and Judicial aspects 64 (2013).
4
“Id.”
driven the partial and uneven modification of the common law rule. 5 If the modem
opponents and defenders of the marital rape exemption agree on any question, it is
that their dispute is a new one. The contemporary debate over the exemption operates
on the assumption that the law's treatment of marital rape first became controversial
in the late twentieth century. Supporters of the exemption frequently assert that
women never saw the need to challenge a husband's conjugal rights until
approximately twenty-five years ago. The drafters of the American Law Institute's
Model Penal Code, who offer the most sophisticated contemporary defense of the
exemption, explain that the rule-"so long an accepted feature of the law of rape"-has
only "recently come under attack."6
A husband's conjugal rights became the focus of public controversy almost
immediately after the first organized woman's rights movement coalesced in 1848.
Over the course of the next half century, feminists waged a vigorous, public, and
extraordinarily frank campaign against a man's right to forced sex in marriage.
This nineteenth-century debate over marital rape constitutes a powerful historical
record that deserves to be examined in its own right. It also provides a useful
framework from which to assess and understand the course of the modem debate
over the exemption. Excavating the nineteenth-century contest over the law's
treatment of marital rape restores a significant chapter in the history of the first
woman's rights movement in the United States, offering a new perspective on the
commitments and effectiveness of that movement. Historians have often
characterized the first woman's rights movement as narrowly intent on securing
gender-neutral rights of access to the public sphere, with suffrage defined as the
movement's overriding and most radical goal.'7
Under the Indian Law section 375 of the IPC criminalizes Rape as an offense where
rape defined does not only include physical penetration but oral sex also. Whereas
there comes an exception to this general rule that rape done by a husband to his wife
is not rape who not being under 15 years of age. On the other hand under the section

5
Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape, California Law REV.,
Oct. 2000, at 1375.
6
MODEL PENAL CODE AND COMMENTARIES § 213.1 cmt. 8(c), at 343 (Official Draft and
Revised Comments 1980).
7
“Id.(5)”.
375B of the IPC provides that a husband and a wife living separately on account of
Judicial separation and if in such circumstances a husband rapes his wife it will be
considered as a rape.
In the above rules of IPC the fact that a husband and wife living together, consent is
presumed in such case, as consent has no value under the sanctity of marriage. It is a
high time that our country should recognize such draconian act as a crime and our
lawmakers should free itself from such antediluvian thought.
In the case of Frazier v. State8 from early in the twentieth century, the Texas court
that heard Mr. Frazier's appeal in 1905 reversed his conviction for assault with
attempt to rape, which is not surprising. The unexplained-and unique-puzzle of the
Frazier case is how it reached a trial court and a jury in the first place.9
Why marital rape is not recognized as a crime under Indian Law and how it
goes against our constitutional morality?
Rape is rape, be it stranger rape, date rape or marital rape. Psychodynamics or not,
marital rape exists. The law does not treat it as a crime. Even if it does, the issue of
penalty lost in a cloud of legal uncertainty. 10 In India marital rape exist de facto but
not de jure.11
In a recent report conducted by WHO it was reported that around 12%
women’s are sexually assaulted by their husbands during pregnancy.
These numbers will increase rapidly without any legal scrutiny as there is no such
law that can aid these victims of marital rape ultimately husband cannot be held
guilty for such heinous offense. Let us go more and examine why marital rape not a
crime under Indian Law and why our lawmakers are resistant towards its
criminalization.
Firstly, the institution of marriage act as a veil when it comes to recognizing marital
rape as a rape under section 375 of the IPC but the fact remains that a husband
cannot be held guilty of raping his own wife. As it is considered as his conjugal right
under Hindu Law and our Indian legal system do not want to destroy this sanctity of

8
Frazier v. State, 86 S.W. 754 ('rex. Crim. App. 1905) (U.S.).
9
“Id.(5).”
10
Dr. Nitu Nawal & Dr.. R.K. Sharma, Domestic Violence Against Women: Legal Protection,
Legislative and Judicial aspects 26(2013).
11
“Id.”
marriage. This notion has long history as foundation of marital rape as an exemption
was traced back by Sir Matthew Hale, C.J., in 17th Century
“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, which she cannot retract.”12 State is hesitant to enter this
private sphere of marriage and believe that it would violate the right to privacy
within marriage. But the fact that is ironical is fundamental right of privacy stands
forward than the fundamental right of right to live a dignified life by a wife.
Secondly, under this institution of marriage the word ‘consent’ is presumed as
consent for sex is not an essential part of marriage and construction of sex as a
women’s obligation towards her marriage.
Sex is creative self-expression through which people can grow in relationship with
each other, if sex is itself play, then it might be steered but can’t be forced. The
people who know that, know that consent matters.13
Some people argue that it shouldn’t just be that “no means no”. Rather, it should also
be “only yes can mean yes”. By this standard, legality and responsibility would be
determined by whether consent was actively given. So, for example, it would make it
illegal to have sex with someone after they gave what you could call a “passive no”,
such as a freeze response. 14
So an implied consent can become an issue when it comes to consenting for sex in a
marriage.
Thirdly, the most common issue which victim of marital rape would suffer is to
prove that it was rape, it is one of the reason why this law can’t come into existence
as it become quiet challenging to prove that the sexual intercourse between the
husband and wife was indeed forced.
Section 122 of the Indian Evidence Act prevents communication during marriage
from being disclosed in court except when one married partner is being persecuted
for an offence against the other. Since, marital rape is not an offence, the evidence is

12
Hale, History of the Pleas of the Crown 629 (1778).
13
Christine Woolgar Sex and Consent: How Does That Work In Marriage, Ashley Easter (Jan. 24),
http://www.ashleyeaster.com/blog/sex-and-consent .
14
“Id”.
inadmissible, although relevant, unless it is a prosecution for battery, or some related
physical or mental abuse under the provision of cruelty. Setting out to prove the
offence of marital rape in court, combining the provisions of the DVA and IPC will
be a nearly impossible task.15
Fourthly, what is the need for a law against marital rape when we already have law
for domestic violence, but the problem is, remedy under DV Act cannot be
tantamount to punishment under Criminal Law.
Countries recognizing Marital Rape
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. 16
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 criminalization 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

15
Priyanka Rath, Marital Rape and Indian Legal Scenario, ILJ India Law Journal, 2007.
16
Shalini Nair, Marital rape a crime in many countries, an exception in many more, The Indian
Express, Aug. 31,2017.
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.17
Not criminalizing marital rape will take away the purpose of fundamental rights.
Fundamental rights are rights of each and every Individual especially right to life and
marital rape takes away the fundamental right of a wife who is made a victim so is it
not a constitutional morality to protect the right of a married women?
The exception clause need to be deleted from section 375 as a rape whether of an
Unmarried or a married woman is a rape there can’t be any other interpretation.
In the previous sections we talked about the issues which are faced by our Indian
criminal system in criminalizing Marital rape whereas in this section we are going to
point out the constitutional necessity and how it is a violation of a women’s
fundamental right when a women is being raped by her own husband.
Marital rape violates Article 21 and 14 of the constitution of India and is of criminal
nature. These two rights are considered to be the most important right of any
Individual and marital rape is a complete violation of a women constitutional right.
Recently Supreme Court decriminalized section 377 and section 497 of the Indian
Penal Code in case of Navtej Singh Johar and ORS. Vs. Union of India18 and Joseph
Shine vs. Union of India19, In both these cases SC talked about Right to life and
personal liberty and right to equality now it time that our judiciary should criminalize
marital rape as every Individual has a right to live life with dignity and so is a
married women.
In the case of Vishakha v. State of Rajasthan20 the Supreme Court extended this right
of privacy in working environments also. Further, along a similar line we can
translate that there exists a right of privacy to go into a sexual relationship even

17
“Id.”
18
Navtej Singh Johar v. Union of India (2018) 10 SCC 1.
19
Joseph Shine vs. Union of India (2018) SCC online SC 1676.
20
Vishakha v. State of Rajasthan AIR 1997 SC 3011.
inside a marriage. Subsequently by decriminalizing rape inside a marriage, the
marital exception teaching damages this right of privacy of a wedded lady and is
consequently is illegal. If criminalizing marital rape will interfere in the private
sphere of marriage then isn’t decriminalizing adultery is also an interference in the
private sphere of marriage? It directly violated fundamental right of a women and
that private sphere becomes a suffering for her entire life whereas, Right to privacy is
declared as a fundamental right after SC verdict in Justice K.S. Puttaswamy vs
Union of India21 can be taken into consideration when it comes to protecting the
institution of marriage but when we are talking about a married women’s right to life
why they can’t keep it as a priority? Is protecting the Institution of marriage more
predominant then a life of an individual?
Constitutional morality always stands in the front foot. In the case of Navtej Singh
Johar SC held that the aim Constitution is to transform society, not to entrench and
preserve the pre-existing values of the majority. In other words, though a majority of
people in India may be heterosexuals, though the prevalent “social morality” in India
might even dictate sexual intercourse only between a man and a woman, it is
“constitutional morality” which must prevail. 22
Constitutional morality embraces within its sphere several virtues, foremost of them
being the espousal of a pluralistic and inclusive society. The concept of constitutional
morality urges the organs of the State, including the Judiciary, to preserve the
heterogeneous nature of the society and to curb any attempt by the majority to usurp
the rights and freedoms of a smaller or minuscule section of the populace.
Constitutional morality cannot be martyred at the altar of social morality and it is
only constitutional morality that can be allowed to permeate into the Rule of Law.
The veil of social morality cannot be used to violate fundamental rights of even a
single individual, for the foundation of constitutional morality rests upon the
recognition of diversity that pervades the society. 23

21
(2017) 10 SCC 1.
22
“Id(18)”.
23
Live Law News Network, Section 377 IPC: Summary Of Four Separate Judgments, Live Law.in
(Apr. 6, 2018, 3:23 PM), https://www.livelaw.in/section-377-ipc-summary-of-judgment-in-4-points/ .
Remedies Available under Indian Law and its Lacunae
In recognition of the diversity of the women’s situations and in acknowledgement of
the needs of specially disadvantaged groups, measures and programs will be
undertaken to provide them with special assistance. These group include women in
extreme poverty, destitute women, women in conflict situations, women affected by
natural calamities, women in less developed regions, the disabled widows, elderly
women, single women in difficult circumstances, women heading households, those
who are victim of marital rape, deserted women and prostitutes.24
Constitutional Remedies
 Article 14 – Equal rights and opportunities in political economies and social
spheres.
 Article 15 – Prohibits determination on grounds of Sex
 Article 15(3) – enables affirmative discrimination in favour of women
 Article 39 – equal means of livelihood and equal pay for equal work
 Article 42 – just and humane conditions of work and maternity relief
 Article 519A)(e) – fundamental duty to renounce practices, derogatory to the
dignity of women. 25
In this paper our need is to show that the exception clause under section
375 is unconstitutional. It is held by our Hon’ble courts that marriage is a reasonable
classification when it comes to constitutionality of Restitution of conjugal rights as in
the case of Saroja Rani v. Sudarshan Kumar Chada26, attempted to settle the issue
and ultimately upheld the constitutionality of the RCR. Therefore RCR violates a
women right to live with dignity as she can’t be forced to dedicate her body or
involve in a sexual intercourse with her husband against her will.
our argument that exception in the section 375 of the IPC doesn’t recognize marital
rape of women who is above 15 years of age under the Hindu Law legal age for a girl
to marry is 18 whereas when it comes to giving consent in marital rape it is 15. Why
this gap and why age for consent for marriage not tantamount to consent for sex.
Recently SC in the case of Independent Thought v. Union of India (‘Independent
24
Aruna Shrivastav, Women Law and Criminal Justice 36-37 ( 1st Edn. 2014).
25
Id.
26
Saroja Rani v. Sudarshan Kumar Chada, AIR 1984 SC 1562.
 Thought’),27the Court partly struck down a part of the exception clause in §375 of
IPC. Under the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’),
it is illegal to have sexual intercourse with a child under the age of eighteen.
However, the exception clause allows for this in the event a girl is married and is
between the ages of fifteen to eighteen. The Court noted that this differential
treatment to the girl on the basis of marriage was wholly unconstitutional. This was
because marriage did not serve as reasonable classification. Although the Court was
keen on noting that the judgment was not for adult marital rape. 28
Protection of Women from Domestic Violence Act, 2005
When it comes to providing remedy to victims of marital rape in civil law DV Act
comes to rescue. One of the most prominent reasons for this is perhaps the belief
that focusing on civil remedies will only serve to aid the public and private
dichotomy since it makes gendered violence a matter between the perpetrator and
victim as opposed to an act of violence against the State itself.29 The overreaching
concern is in corresponding to give immense importance to civil remedy, rather than
criminalizing an unlawful act. Under the personal law there is no ground for cruelty
in marriage where term ‘sexual violence’ is mentioned as again it try to glorify the
institution of marriage.
Section 3 of the Act defines the term ‘Domestic Violence’ which gives various
interpretation about what constitute domestic violence that include physical, sexual,
verbal and emotional abuse or economic abuse.
Reliefs that are available under the Act are;
i. Protection order (sec. 18)
ii. Residence order (sec. 19)
iii. Monetary Relief ( sec. 20)
iv. Custody order (sec. 21)
v. Compensation order (22)
vi. Interim and ex parte order (sec 23)

27
Independent Thought v. Union of India, AIR 2017 SC 4904.
28
Id.
29
Lauren M. Gambier, Entrenching Privacy: A Critique of Civil Remedies for Gender-Motivated
Violence, 87 NYU L. REV. 1934-1937 (2012).
Since, this act can only provide civil remedy so it cannot compensate for the
suffering of a woman who has gone through it through a punishment in a criminal
law. Her pain is tantamount to pain of a normal rape victim, whereas, justice is
missing when we mention marital rape.
Criminal Law
Under criminal law we can only find remedy under section 498A of IPC. It basically
criminalize cruelty against women by her husband or husband’s family, basically
cruelty is defined in many aspects under section 3 of DV Act but 498A punishes
husband or relatives of husbands who harass women inside her marriage. Punishment
given under this section is concerned with dowry deaths of women and their
suffering, whereas, the term ‘cruelty’ has a wide approach. The section is silent about
the fact that does cruelty includes rape by her husband which creates a grey area
when it talks what are the things which constitute cruelty, it differs from facts and
circumstances and from case to case. Marital Rape and cruelty under marriage cannot
be tantamount to each other.
The fact that Maximum punishment under section 498A of the IPC is three years
with/without fine whereas maximum punishment for rape is life imprisonment.
What can be done?
 The J.S. Verma Report is the landmark report that reignited the debate on marital
rape in recent times. Backing the long-standing demand of the women’s activists that
marital rape be considered as an offence, the Justice J.S. Verma committee has said
marriage or any other intimate relationship between a man and a woman is ‘not a
valid’ defense against sexual crimes like rape
The three-member panel, which was constituted to recommend amendments to
criminal laws in the wake of the national outrage over the December 16 gang rape
here, has sought “an exception for the definition of marital rape in the existing laws.”
“The law ought to specify that marital or other relationship between the perpetrator
or victim is not a valid defense against the crimes of rape or sexual violation,” the
committee said in its report. The committee said the “relationship between the
accused and the complainant is not relevant to the enquiry into whether the
complainant consented to the sexual activity and the fact that the accused and the
victim are married or in another intimate relationship may not be regarded as a
mitigating factor justifying lower sentences for rape.”30
 Building a consent culture, under marital rape consent is presumed in marriage
where there is no need to ask for a wife’s consent to have sexual relationship with her
husband but that cannot be always the situation, consent whether it is in marriage or
outside of marriage it has a significant relevance. It cannot be ignored and to be
treated in similar manner as we we treat it in regular cases.
 We could come up with separate courts dealing with cases of marital rape where
there would be no issues in admissibility of evidences for marital rape. Proving
consent is a another big issue when it comes to admissibility of the evidences as it
extremely difficult for the victim to prove that there was lack of consent as it depends
on circumstantial evidences.
 It is very important that the qualified doctors and experts should be recruited to
testify the mental and Psychological state of the victim in these cases which can act
as corroborating evidence.
 Making relevant changes in the section 375 of the IPC and Indian Evidence Act,
1872.

Conclusion
This research paper motive is to draw some attention towards the rights of a married
woman who is undergoing a bad marriage and to make people understand her
suffering when she is being raped by her husband and she can’t find any remedy to
punish that perpetrator under criminal law for such act. This institution of marriage
cannot be used as a defense for marital rape and it cannot justify for a life of an
Individual that is her fundamental right. Criminalizing marital rape will not only do
justice to these women. We have analyzed how history gave us many examples and
how it’s been a revolution around the world and we also discussed what issues our
Indian society facing in criminalizing marital rape and further we have discussed
through various case laws the remedies which are available and they can’t be so

30
Special Correspondent, Marriage is not a valid defense against rape, says committee, The Hindu,
Sep. 6, 2016.
fruitful in a long run. And last but not the least what can be possible steps we could
take to make marital rape recognizable by our Indian Legal System and make this
society a better place.