Women v.

The State: Marital Rape & The Way Forward

-Nuthalapati Sushmanjali

In 1890, Phulmonee, an 11 year-old child bride died due to injuries from rape caused by her
35 year-old husband, but he was not prosecuted under ‘rape’ rather the charge was of ‘rash
and negligent act’ as she was above the age of consent that prevailed at that time which was
10 year-old of age.1 This case was monumental as it prompted the State to intervene in
marital matters to increase the minimum age to 12 years for ‘consent’ against the staunch
opposition of conservative factions. It was this intervention that initiated the consolidation by
nationalists to declare Hindu home as a space of self-governance, attenuate State
contamination and emphatically propagate marriage as a sacred bond.2 The Hindu Marriage
Act, 1955,3 attempted to denude the influence of ‘sacrament’ defence put up to shield the
male vices under the garb of ‘wifely duties’ of a female but the Courts are yet to actively
participate in the aforementioned Act’s ethos, as can be seen from the instances of non-
criminalization of marital rape and the Court’s attempt to deflect ‘marital rape’ as a crime due
to which the debates have revived the arguments of sanctity of marriage, implied consent and
introduced the difficulty of producing evidence, and vindictive approaches that can sprout out
of criminalization of marital rape.

The theory of implied consent was first put forth by Sir Mathew Hale who stated that wife’s
consent to matrimonial contract implies her consent to any forthcoming sexual act during that
marriage and such consent cannot be revoked. 4 The recent judgments have shown the shift
from the implied consent theory to sexual autonomy of a wife in a marriage as Justice
Chandrachud questions in Joseph Shine v. Union of India, 5 ‘does a man or a woman lose their
degree of sexual autonomy after marriage. I think ‘no’’. He continued that ‘the right to say no
to sex should be there after marriage also.’ This was in consonance with the Gujarat High
Court’s holding that sex is not a husband’s privilege. 6 Where such cases provoke hope, there
are also instances where during the proceedings of a case, the Supreme Court actively

1
Tanika Sarkar, Rhetoric against Age of Consent: Resisting Colonial Reason and Death of a Child-Wife, 28
ECONOMIC AND POLITICAL WEEKLY 36, (1993).
2
Supra note 1.
3
The Hindu Marriage Act 1955.
4
G. Geis, Lord Hale, Witches, and Rape, 5 BRITISH JOURNAL OF LAW AND SOCIETY 26, (1978).
5
Joseph Shine v. Union of India AIR 2018 SC 4898.
6
Nimeshbhai Bharatbhai Desai v. State of Gujarat 2018 SCCOnline Guj 732.
stopped any debate to progress towards the topic of criminalization of marital rape and left
that decision to the legislature.7

But the legislative debates on this topic seems to be heavily connotated with the notion of
sacrilege and projection of men as helpless victims if such a drastic step is taken and an
enforcement of their duty to protect the institution of marriage and family. This reverence
towards the institutions at the expense of women has been internalized to such an extent that
a former Union Minister of State for Home Affairs remarked that since marriage in India is
perceived as a sacred union, marital rape cannot be brought within the purview of the law on
rape.8 But there has been a tacit acceptance of sexual violence against wives as prominent
from the excerpt of Standing Committee Report,9 but instead of providing an outright remedy
through criminalization, the Government highlighted in the report the already available
remedies via divorce on grounds of cruelty or initiation of proceedings under sexual abuse
specified in The Protection of Women from Domestic Violence Act, 2005 (‘DVA’),10 and
also went to the extent of amending the Code of Criminal Procedure, 1973, 11 through
Criminal Law (Amendment) Act, 2013,12 to insert a ‘prima facie satisfaction of facts’ if a
separated wife complaints about rape against her husband. 13 All this was done to save the
entire family system from going under a great stress and preventing injustice. This ambiguous
approach of the State immersed in the carrot-and-stick tactic underlines the specious
sympathies offered perennially for women’s woes.

But the legislature seems to ignore the concern for safety of family system as echoed by All
India Muslim Personal Law Board when they requested the Central Government to withhold
tabling of the Triple Talaq Bill as ‘no procedure was followed, neither any stakeholder
consulted’ [sic] to draft it.14 Neither the State seems perturbed by the fact that there exists a
lacuna of empirical data to support the threat on family’s institution if marital rape is
criminalised. But there exists studies to show that denial of power to women to negotiate the
use of contraceptives can leave her susceptible to unwanted pregnancy and sexually
7
Independent Thought v. Union of India AIR 2017 SC 4904.
8
Flavia Agnes, Section 498A, Marital Rape and Adverse Propaganda, Vol. L ECONOMIC & POLITICAL
WEEKLY 12 (2015).
9
Department related Parliamentary Standing Committee on Home Affairs, 167TH REPORT ON THE
CRIMINAL LAW (AMENDMENT) BILL, 2012, 47, Rajya Sabha Secretariat, Government of India, 2012.
10
The Protection of Women from Domestic Violence Act 2005.
11
The Code of Criminal Procedure 1973.
12
The Criminal Law (Amendment) Act 2013.
13
The Code of Criminal Procedure 1973 §198B.
14
ANI, Triple Talaq bill is against women, will destroy families: AIMPLB, BUSINESS STANDARD (June 25,
2020, 5:20 PM), https://www.business-standard.com/article/current-affairs/triple-talaq-bill-is-against-women-
will-destroy-families-aimplb-117122400382_1.html.
transmitted diseases, simultaneously, smothering her volition in the privacy of the bedroom
can result in long-term psychological effects through depression, suicidal ideation, post-
traumatic stress disorder, etc.15

But the questions remain, is it appropriate to solely insist on criminalization of marital rape to
empower women? Or if a wife’s sexual autonomy be sacrificed and subjected to sexual
subordination to prevent futuristic misuse and vindictive approaches that criminalization can
ensue? Flavia Agnes answers that sexual violence does not operate in a vacuum, it carries
with it the weight of physical violence where non-consent is reprimanded, 16 and such
instances of corresponding physical violence carry with it the weight of evidence to be
acknowledged in the Court. Moreover, the 243rd report of Law Commission on Section 498A
of Indian Penal Code, 1860,17 states that ‘misuse by itself cannot be a ground to repeal it or to
take away its teeth wholesale … we cannot close our eyes to a large number of cases which
go unprosecuted for a variety of reasons.’18 This may create an impression to prod the wife to
seek a solution through divorce or DVA but Courts have been inconsistent with their
approaches when charges are relied solely on marital rape as Delhi High Court stated in 2014
that marital sex even if forcible is not rape, 19 while Allahabad High Court held that lower
courts had shown a tendency to favour the husbands and make light of wife’s grievances. 20 It
is due to this persisting trend that Justice Verma Committee, 21 and Pam Rajput Committee,22
had recommended criminalization of marital rape as the relationship between accuser and
accused should be irrelevant.

The legislative inconsistencies in marital rape provisions fail the test of reasonable
classification as it creates distinction between a wife under the age of 18 and above the age of
18,23 while also distinguishing a separated wife from a wife being forced to trudge under this

15
DAVID FINKELHOR & KERSTI YLLÖ, LICENSE TO RAPE: SEXUAL ABUSE OF WIVES 126 (New
York: Free Press 1985).
16
Supra note 7.
17
The Indian Penal Code 1860 § 498A.
18
Law Commission of India, GOVERNMENT OF INDIA SECTION 498A IPC REPORT NO. 243 (2012
Government of India).
19
Apoorva Mandhani, Marital Sex even if forcible is not Rape; Delhi Court, LIVELAW, (June 28, 2020, 6:39
PM)
https://www.livelaw.in/marital-sex-even-forcible-rape-delhi-court-read-judgment-close-look-law-relating-
marital-rape-india/.
20
Kusum Lata v. Kampta Prasad AIR 1965 All 280.
21
Justice Verma, Justice Seth et al, REPORT OF THE COMMITTEE ON AMENDMENTS TO CRIMINAL
LAW (2013 Government of India).
22
Dr. Pam Rajput, Dr. Simrit Kaur, et al, HIGH LEVEL COMMITTEE ON STATUS OF WOMEN REPORT
(NATIONAL WOMEN POLICY) (2014 Ministry of Women and Child Welfare, Government of India).
23
Supra note 6 also see Indian Penal Code § 375.
‘a-husband-can-never-be-the-rapist law’, thus, violating Article 14 while also denying her the
right to make choices pertaining to sexual activity, dignity and bodily integrity under Article
21 as has also been emphasised by Supreme Court.24

There also remains the argument related to the difficulty of producing evidence in such cases
but the same difficulty persists already when a woman initiates proceedings under sexual
abuse of DVA,25 or when she files for divorce under Section 10 of Indian Divorce Act,
1869,26 due to rape, sodomy or bestiality committed by the husband.

When a woman votes to elect her representative in the legislature, she votes as an
independent voter of her own volition to represent her and provide her with protection of her
interests and bodily dignity. The legislature cannot scoff off that responsibility by shoving her
under the ‘custody’ of a husband due to her ‘wifely’ status and hailing any intervention as an
‘intrusion’ in the personal matter or for ‘protection’ of family institution.

The legacy of Hale’s implied consent theory has been discarded by our former colonisers and
Hale’s natives through the 1991 amendment by criminalising marital rape. 27 Hale’s theory
also is not applicable in a patriarchal society like India where explicit non-consent of a wife
can be considered redundant or a minor hindrance which can be converted or ‘misinterpreted’
as consent.28

The State should follow a pragmatic approach towards the protection of women rather than
being swayed by arguments that inherently lack an empirical basis. The statistics highlight
the urgency for the adoption of these measures with rising number of marital rape victims, 29
while the circumstances imposed under coronavirus pandemic where a woman is forced to
dwell under the same roof with a potential perpetrator can leave her susceptible to prolonged
psychological and physical harm with no remedy in sight, thus exacerbating an already worse

24
Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1.
25
Supra note 9 § 3.
26
The Indian Divorce Act 1869 § 10.
27
Adrian Williamson, The Law and Politics of Marital Rape in England, 1945-1994, 26 WOMEN’S HISTORY
REVIEW 382 (2017).
28
Dr. Kshitij Naikade & Dr. Garima Pal, Issues and Challenges Related to Marital Rape in India, 7
International Journal of Humanities and Social Science Invention 58, (2018).
29
A. Raj & L. McDougal, Sexual Violence and Rape in India, 2014 383 THE LANCET 865 (2014).
situation.30 It is essential that legislatures examine laws to be enacted for the progress of the
nation rather than examine the familial relations to hinder the progress.

30
World Health Organization, COVID-19 and violence against women, WORLD HEALTH ORGANIZATION
(June 25, 2020 4:30 PM) https://www.who.int/reproductivehealth/publications/emergencies/COVID-19-VAW-
full-text.pdf?ua=1, see also Dr. Natalia Kanem, Women, girls, health workers must not be overlooked in global
COVID-19 response, UNITED NATIONS POPULATION FUND (June 25, 2020 4:00 PM)
https://www.unfpa.org/press/women-girls-health-workers-must-not-be-overlooked-global-covid-19-response