RAPE AND MARRIAGE: REFLECTIONS ON THE PAST, PRESENT AND FUTURE

Author(s): Stellina Jolly and M.S. Raste

Source: Journal of the Indian Law Institute , April-June 2006, Vol. 48, No. 2 (April-
June 2006), pp. 277-284
Published by: Indian Law Institute

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 277

RAPE AND MARRIAGE: REFLECTIONS ON THE PAST,

PRESENT AND FUTURE

" RAPE IS a crime against basic human rights and a violatio

victim's " most cherished of fundamental rights, namely, the rig
contained in Article 2 1.1

The question is whether legislative provisions and crimina

delivery system are reflective of the above grave concern. Peru
analysis show that rape is condemned in most eloquent of word
far from recognizing rape as a brutal assault against women's r
their own body and sexuality.
In session's court in Delhi, the rapist who had gouged out the
eye, proposed that he be allowed to marry his victim 4 to wash
stigma and re-establish her in society. Strangely, instead of repr
the accused for such a humiliating proposal the judge took up t
and delayed the judgment giving the victim time to consider. Th
boldly refused, stating, "How can I accept a man who has han
my very sense of being, more than my physical self, as my hu
She went on to say that the rapist's offer "is to further humilia
and denigrate my dignity." the judge then awarded life sentenc
rapist saying that the last minute marriage offer was mala fide
wonders what if the rapist had given this offer earlier at the b
of the trial, and the offer was accepted by the victim.2 Would
made any difference in the outcome of the case? Such attempts
a rape survivor's plight are not far between. In another recent
lower court in Mumbai, seemed convinced that answer to ra
marriage. The judge reportedly offered a police escort to the m
party so that the accused did not flee from the scene.3 These ju
clearly reflect the stereotypes, cultural biases and patriarchal p
which are wide spread among judiciary. Such incidents ma
revulsion and shock in the mind of many. But what causes mor
is the fact that there are a sizeable number of people in our soc
view marriage as the only savior to re-establish rape victim in

1. Observation of Supreme court in Bodhisattwa Gautam v. Subhra Lh

(1996) 1 SCC 490.
2. Available at http://www.cpiml.org/liberation/year_2005/june/marriage_with_
ones_rapist.htm as visited on 26-08-2005 on 16 30 hrs.
3. Times of India May 9, 2005. Pune ed.

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278 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 48 : 2

These incidents are also a clear testimony to the fact th

with all lofty claims of human rights and plethora of legisla
granting equality to women, modern legal systems and cri
delivery systems consider rape as a crime not because r
assaulted his victim's body and dignity; but merely that h
woman who did not legally belong to him. In other w
society and democracy are very far from recognizing a wo
autonomy and her right to bodily integrity. At the same
certain fundamental questions pertaining to relations betw
marriage, more importantly sanctity of marriage.
One must first analyse the provisions relating to rape.
section 375 of Indian Penal Code defines rape as:4
A man is said to commit the offence of rape with a w
the following six circumstances:
1. Sexual intercourse against her will,
2. Without her consent,
3. With her consent, when her consent has been obtained by
putting her or any other person that she may be interested in
fear of death or hurt,
4. With her consent, when the man knows that he is not her
husband,
5. With her consent, when at the time of giving such consent she
was intoxicated, or is suffering from unsoundness of mind and
does not understand the nature and consequences of that to
which she gives consent,
6. With or without her consent when she is under sixteen years of
age.

Further explanation provided to the section states that penetration is

sufficient to constitute the sexual intercourse necessary to constitute the
offence of rape, whereas the exception leaves out marital rape altogether
if the wife is not under fifteen years of age.5
Perusal of section 375 of Indian Penal Code makes it amply clear
that marriage does not act as an absolving factor in case of rape.7
Moreover rape is not a compoundable offence under section 320 of
Criminal Procedure Code.7 It will be interesting to find when legislations

4. Indian Penal Code, 1860, s. 375

5. Ibid.
6. Ibid.
7. Criminal Procedure Code, 1973, s. 320 provides for two types of compoundable
offences one with the permission of the court and other without the intervention of
the court. Rape does not figure in either of the category.

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 2006] NOTES AND COMMENTS 279

do not directly provide for such a

marriage and rape. May be a loo
comparative analysis of rape provid
judiciary.
Originally, the word 'rape' was ak
and referred to the more gener
enslavement, taking away and ca
tribe, town, city or country durin
with it came much later. The conce
the sexual sense, is mentioned in
Bible provides "If a man happens t
be married ^nd rapes her and they
father fifty shekels of Silver. He m
her. He can never divorce her as
Babylonians considered and put dow
should pay the father of the victim
marry the victim. Compensating th
institutionalized in ancient law.10 T
Miller, to note: "Rape entered the la
as a property crime of man against
embezzlement of his daughter's fair
Thus one can see even when sexual connotation associated with
rape came into being it was not considered to be an attack on women
individuality and dignity, But as an attack on father's rights and a cr
against the male figure dominating the particular girl or woman. It
akin to property and the crime was stealing or damaging that prope
Daughter was considered to be a property of the father. Rape damag
the property, so the rapist must either pay "compensation" or accept
damaged goods. Thus, there was an inseparable relation between marri
and rape. Interestingly, if one has to examine this curious relatio
rape and marriage, the concept of punishment awarded to the rapist
absent who could get away by marrying the victim. Punishment, if an
was inflicted on none other than the victim who had absolutely
choice but to marry the rapist and spend the rest of the life with him
Such an intimate relation between marriage and rape restricted the in
concept of rape only to an attack on a virgin. It is on this ground tha
1244 in England Thurkleby J disallowed a widow's appeal ruling t

8. Available at http://en.wikipedia.org/wiki/Rape as visited on 1-09-2005 a

OOhrs.
9. The NIV Bible , Deuteronomy 22:28.
10. Supra note 8.
11. S B Miller, Against Our Will (1976).
12. Supra note 8.

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280 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 48 : 2

rape can be inflicted only on a virgin.13 Eventually in

statute of Westminster appears to have provided that the
any women was an offence punishable with a penalty
imprisonment and ransom.14 A significant beginning was
direction of providing punishment to the rapist. In 12
statute of Westminster turned this into a capital offence.
being, it was akin to murder, for woman chastity defined h
person. From this principle derived the expression that ra
than death: it was a kind of death.16 Such an approach
other jurisdictions and rape came to be considered as a b
on women's body and integrity. In this process the requirem
getting married to his victim vanished.17 Marriage will no
liability of rapist. Perhaps it has to do with the broadening
of rape to include females other than virgins. However, it i
that even today some countries have preserved the traces
archaic concept in their penal law.
For instance, in Uruguay: article 116 of the Penal Cod
the crimes of rape, indecent assault, statutory rape, and a
the perpetrator marries the person he has raped, assaulted,
The other jurisdictions also did not lag behind in
incorporating the same monstrosity in their legal syste
they extended the definition of rape to include all wom
virgins and provided in their legislations that marriage w
the liability of rapist, they could not completely overcom
historic relation between rape and marriage. They specific
the possibility of husband committing rape on the wife, i
marital rape exemption was brought to legislations as a
ancient ideologies. It was thought rape could not happen in
marriages overlooking what numerous surveys and researches have

13. J Tempkin, Rape and the Legal Process 57 (2002).

14. Ibid
15. Ibid.
16. A. Clark , Woman Silence, Mens Violence ; Sexual Assault in England 1700-
1845 (1987).
17. Most of today's jurisdictions do not adhere to such a concept. Marriage does
not absolve the liability of rapist. See U.K Sexual offences Act 2003, Indian Penal
Code, s. 375, Sri Lankan Penal Code, s. 363 etc.
18. Similar provisions can be found in other jurisdictions also. For example,
Lebanese Penal Code, Art. 522. It stops the prosecution or execution of the penalty
when the perpetrator of a rape, kidnapping, or statutory rape marries the person he
has raped or kidnapped. See also, Guatemala Penal Code, Art. 200 voids criminal
accountability for rape, statutory rape, indecent assault, and kidnapping when the
perpetrator marries the person he raped, assaulted, or kidnapped.

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2006] NOTES A ND COMMENTS 28 1

revealed.19 Instead of realizing the fol

would pose for women's rights, individ
doctrines and theories jurisdictions t
underlying idea behind this exemp
marriage, property of father gets transf
in its modern form is attributed to se
Mathew Hale. He justified the exempt
The husband cannot be guilty of
upon his lawful wife for by their m
and contract the wife had given up
husband, which she cannot retract.
Following this, majority of jurisdic
exemption in their penal laws.22 In
Intercourse by a man with his own w
age, is not rape"23 Indian legislation
Only two groups of married women
- those being under 1 5 years of age
their husbands.24 This allows husband
over their wives, in direct contraven
The law simply echoes what social mo
women have no right to their own bo
that of their husbands. It is submitte
right to have conjugal relations but t
rape his wife. The proper remedy sho
restoration of conjugal relationship.25
Most of the Islamic jurisdictions
exemption. In Iran under the civil co
to her husband and this is called 4 tam
to his sexual demands. So effective

19. Diana Russell, a prominent rape resea

selected women and found that while 3%
stranger, 8% had experienced completed ra
20. Supra note 8.
21. Supra note 13 at 79.
22. See Sri Lankan Penal Code, s. 363.
23. Supra note 4, Exception.
24. /</., s. 376A.
25. Hindu Marriage Act, 1955, s. 9 provides procedure regarding application for
conjugal rights. When either the husband or the wife has, without reasonable excuse,
withdrawn from the society of the other, the aggrieved party may apply, by petition
to the district court, for restitution of conjugal rights and the court, on being satisfied
of the truth of the statements made in such petition and that there is no legal ground
why the application should not be granted, may decree restitution of conjugal rights
accordingly.

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282 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 48 : 2

under the Iranian law,"26 Similar legislation are there in

countries.27 In some Islamic countries the killing of a vir
prohibited. This reflects the objectification of women.
virgin woman is to be executed, she is first "married" (ra
the guards before execution. Afterwards the guard goes t
family and declares that he is their son-in-law. It is totally
the process of obtaining confession or to humiliate the
prison guards are simply obeying Islamic law. In practice
but religious rape.28
Whatever the explanations and justifications for th
marital rape exemption, it was based plainly on a fiction,
over the years hard to defend and justify. Jurists ov
unanimously discarded this concept and expressed the opi
the twentieth century woman this has no rationale. Years
scrutiny, sustained criticism, and persistent activism h
some jurisdictions taking a significant, positive, and, at l
far-reaching steps to abolish this exemption.29 In Eng
Lords in R v. R 30 announced that husband's immunity as
Hale CJ no longer exists. It was followed by enactmen
Offences Amendment Act of 1994, which formally ab
exemption" in England.31 In 1993, marital rape becam
fifty states of USA, under at least one or the other section
offence codes. However, it is remarkable that only a m
states has abolished the marital rape exemption in its ent
it remains in some proportion or other in all the rest. In s
and the District of Colombia, there are no exemptions
prosecution granted to husbands.32 In New Zealand, th
exemption was abolished in 1985 when the present sect

26. Available at http://www.iran-bulletin.org/women/RAPE.ht

29-08-2005at 1315hrs.
27. In Pakistan, the Ordinance of Zina issued in 1977 deals with rape which i
known as Zina bil Jabr and it provides A person is said to commit zina-bil-jabr
he or she has forceful sexual intercourse with a woman or man, as the case may
to whom he or she is not validly married, In Malaysia, s. 375 of the Penal Cod
provides without exception, in other words even if she is unwilling or forced, t
sexual intercourse by a man with a woman to whom he is married is not rape
Yemen: Art. 40 of the Personal Status Act No. 20, 1992 mandates a wife's obedien
to her husband, including by restricting her movements outside the marital hom
and by requiring her to have sexual intercourse with him.
zīs. Available at www. iran-bulletin. org/women'rape.nrmi as visiteo onzi-ui zuuo
at 16.00 hrs
29. Canadian Criminal Code, s. 246.8 abolished marital rape exemption, Criminal
Law Amendment Act 1990, s. 5 abolished marital rape exemption in Ireland
30. (1991)2 All ER 747.
31. Sexual offences Act of 1994, s. 147.
32. Supra note 13 at 257.

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 2006] NOTES AND COMMENTS 283

Crimes Act, 1961 was enacted. Su

person can be convicted of sexual violence in respect of sexual
connection with another person notwithstanding that they are married at
the time the sexual connection occurred.33
In India also a significant development was made when section
376A was introduced as an amendment based on the recommendations
of the Joint Parliamentary Committee on the Indian Penal Code
(Amendment) Bill, 1972 and the Law Commission of India.34 According
to this section a husband can now be indicted and imprisoned up to 2
years, if firstly, there is a sexual intercourse with his wife, secondly,
without her consent and thirdly, she is living separately from him, whether
under decree or custom or any usage.35 However, this is only a piecemeal
legislation and much more needs to be done by Parliament as regards
the issue of marital rape
When the Law Commission in its 42nd Report advocated the
inclusion of sexual intercourse by a man with his minor wife as an
offence it was seen as a ray of hope.36 The Joint Parliamentary
Committee that reviewed the proposal dismissed the recommendation.
The committee argued that a husband could not be found guilty of
raping his wife whatever be her age. The National Commission for
Women in India released a report "Rape a legal study" which
recommended the abolition of marital rape exemption.37 Unfortunately
it did not find favour with the Law Commission of India.38 The legal
provisions continue to be reflective of the double standard we carry
towards women. We treat rape as a crime but are far from recognizing
that rape is rape no matter who does it.
One may wonder what possible connection can exist between
marriage with a rapist and marital rape exemption. One of the well
established principles of construction in law relates to test of proximity.
When confronted with a problem, the judge looks for direct legislative
provisions on the point, in the absence of direct provisions he looks at
other provisions, which may indirectly offer some guidelines. In modern
jurisdictions, in the absence of specific legislative provisions absolving
the liability of rapist in case of marriage, the provision, which has some
proximity to this point, can be easily located in marital rape exemption.

33. A.P Simester, & J Brookbanks, Principles of Criminal Law 552 (1998).
34. Available at http://www.lawcommissionofindia.nic.in/rapelaws.htm as visited
on 20-01-2006 at 12.1 Ohrs
35. Supra note 25.
36. Law Commission of India, 42nd Report, 1977 , Indian Penal Code, para
16.1 15 at 277.
37. National Commission for Women, India, ' Rape a legal Study '(2000).
38. Law Commission of India 1 72nd report , Review of Rape Laws, 2000 did not
favor the recommendation of National Commission for Women.

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284 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 48 : 2

Since husband can never be guilty of raping his wife marria

well relieve the liability of rapist. Now it should not create r
shock in the mind of anyone in what they consider as the
marriage proposal and the action of the judge in delaying th
The relation between marriage and rape is as old as the
itself, which has found a way to every legal system in so
way.
Here it may be essential to point out few aspects of marriage. It is
submitted that it is fundamentally wrong to connect marriage and rape.
Whatever may be the view and approach of Sir Mathew Hale, marriage
is not just a question of contract and no consent can be absolute. It is a
sacrament when it is the person you have entrusted your life to who
rapes you, it isn't just physical or sexual assault, it is a betrayal of the
very core of your marriage, of your person, of your trust.39 That makes
it all the more important to abolish the exemption granted to marital
rape, since rape destroys the trust and intimacy based on matrimony.
Whatever the reason for its origin and justification, with the growing
wave of equality and human rights it is hard to justify and the present
law as it stands is inconsistent with women's dignity, individuality and
inadequately equipped to deal with existing issues, from a policy point
of view the situation is undesirable as it renders the law arbitrary .To
leave the law as it stands is clearly a bad legal policy. Lack of legislative
reform is not just a reflection of maintaining status quo but a positive
decision not to change in face of existing serious drawbacks.lt is,
therefore, unacceptable that law makers remain intransigent. It is
imperative that the law in respect of rape and specially its relation with
marriage be reviewed/reformed so as to reflect a consistent, socially
acceptable and one which will go a long way in promoting womens
dignity.
Stephen J Schulhofer proposes, "An adequate system of law [can]
place sexual autonomy at the forefront of concern and afford it
comprehensive protection, in the same way that we protect property,
labour, informational privacy, the right to vote, and every other right
that is central to the life of a free person."40 It will not happen if we, as
part of society, are content to remain entrenched in the matrix of
misogyny that is our common legacy
Stellina Jolly *
M.S. Raste**

39. Available at www.hiddenhurt.co.uk/Articles/maritalrape.htm as visited on

21-01-20006at 10.30 hrs
40. S J. Schulhofer. Cambridge, MA: Harvard University Press, 1998
* Lecturer, Army Institute of Law, Mohali.
** Vice Chancellor, Symbiosis Deemed University.

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