Introduction

“The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual
consent and contract the wife hath given up herself in this kind upon her husband, that she cannot retract" 1

India is the seventh-largest country in the world with a population of over 1.36 billion and therefore the
largest democracy within the world it's rustic with a mix of assorted religions, cultures, languages, customs,
and usages and far additional. The rate of Indian countries is 46 % and increasing at a minatory rate of
56% 2and as per the report of the National Crime Record Bureau in the Year, 2019 was 62. 4 percent per
large integer girls. There was a big rise of 7.3% in crime against girls compared to last year. 3

Rape may be a variety of regulatory offenses against girls sometimes involving gender or alternative styles
of sexual penetration while not that person's consent. The act could also be dole out by physical force,
coercion, abuse of authority, or against someone UN agency is incapable of giving valid consent, like one
UN agency is unconscious, incapacitated, and has AN intellectual incapacity. The Supreme Court of the
country has said “Rape is the gravest crime against humanity and an immortal shame. Rape cannot be
confined as mere physical assault however is damaging the complete persona of the victim.”4 Whereas
marital rape is forcing your partner to have intercourse with you just because they are married. It happens
among the four walls of the house. The only difference is the accused is the husband of the victim.

Everyone in this world has their viewpoint on marital law whether it should be criminalized like rape or
should be treated as a part of marriage board institution. . The question confine this matter is whether or not
married rape is manifestly guarded by the provisions of the Indian Constitution and therefore the Indian
Penal code or the same provisions deny its unlawfulness.
Initially, rape was looked at as a crime of tort and was created for the father or husband of women as
protection of their property (women) not for the protection of women. So men think after the marriage a
woman is their property and can use them as they like to do. One of such archaic ideas of the paternal
mindset that has run into a clash with the thought of equality among partners within today’s world is that in
a very wedding, the husband is the master of his spouse.

1 Sir Matthew Hale (1609–1676) in History of the Pleas of the Crown, published posthumously in 1736,
2 https://www.numbeo.com/crime/country_result.jsp?coun
3 https://indianexpress.com/article/india/ncrb-data-7-rise-in-crimes-against-women-6636529/
4 Rafiq vs State Of U.P on 14 August, 1980
According to a survey
• One out of five women will be raped at some point in their lives 5
• More than two-thirds of women are forced to have sex between the age of 15-49 6
• One out of seven men has raped their wife. 7

Even after these horrible statistics Marital rape is still not criminalized in India because the lawmaker in the
country thinks marital rape will destroy the institution of the marriage. Former Chief Justice of India Dipak
Misra said that marital rape should not be made a crime in India, “because it will create absolute anarchy in
families and our country is sustaining itself because of the family platform which upholds family values,”8
Section 375 of the Indian Penal code about rape but the exception clause (2) says “Sexual intercourse by a
man with his wife, the wife not being under fifteen years of age, is not rape.” While 49% of women get
married under 18 years of age in India. Recent judgments of the Supreme Court have criminalized the sexual
course between husband and wife below 18 years of age will be considered as rape9. Marriage in India is
considered to be a sacred establishment and it is an essential part of family life and it is considered a delicate
space, so to take care of the privacy of the nation the state hesitates to interfere in the matter. India is one of
the 36 countries which haven’t legalized marital law yet. The Indian penal code does not criminalize marital
rape but also provides an exemption to it10. Non-criminalizing marital rape also violates the Constitution of
India. Recently the Supreme Court of India has pronounced several decisions which have brought positive
changes for Indian women but still, a lot needs to be done by criminalizing marital rape and protecting the
basic rights of women.

In this paper researcher would like to give out the scope of marital rape law in India, the law it violates,
support criminalization of marital rape these steps will eventually be the basis for the creation of a legal
policy, with a special focus on the protection of women from such crimes and empowering them.

5 https://www.nsvrc.org/sites/default/files/publications_nsvrc_factsheet_media-packet_statistics-about-sexual-
violence_0.pdf
6 https://www.who.int/news-room/fact-sheets/detail/violence-against-women
7 https://ncadv.org/STATISTICS
8 https://theswaddle.com/marital-rape-inda-decriminalized-crime/
9 Independent Thought v. Union of India, SCC Online SC 1222
10 Section 375 ipc 1860,exemption 2
Research Objective
• To analyze the extent of marital rape in India
• To understand the logic behind the noncriminalization of marital law in India
• To recommend and measures for marital law

Research Hypothesis

There is a need to have a model of criminalization of marital rape in India to protect the rights of the women

Research Question

• What is the need for the criminalization of marital rape in India

Research Methodology

The researcher has followed the doctrinal research method and has collected data from various secondary
sources like articles, journals, and books, cases, websites, and the Internet in making the project

Chapter

What is marital rape and the concept of Exemption of Marital Rape?

• Meaning of rape and Marital rape

According to section 375 of the Indian Penal Code

Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse
with a woman under circumstances falling under any of the six following descriptions:—

(First) — Against her will.

(Secondly) —Without her consent.

(Thirdly)— With her consent, when her consent has been obtained by putting her or any person in whom she
is interested in fear of death or of hurt.

(Fourthly) —With her consent, when the man knows that he is not her husband and that her consent is given
because she believes that he is another man to whom she is or believes herself to be lawfully married.
(Fifthly) — With her consent, when, at the time of giving such consent, because of unsoundness of mind or
intoxication or the administration by him personally or through another of any stupefying or unwholesome
substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration
is sufficient to constitute the sexual intercourse necessary to the offense of rape.11

Exception 2 of the section states “sexual intercourse or sexual act by a man with his own wife, the wife not
being under fifteen year of age is not rape”. The recent judgment of the Supreme Court has increased the
age from fifteen to eighteen years of age12. According to this exception, the husband will not be liable if he
tries or indulges himself in intercourse with her wife forcefully, not without her consent if she is above 18
years of age. This exception has granted immunity to the husband who forces themselves on their wife.

Marital rape can be defined as the act of sexual intercourse between husband and wife but without the wife's
consent. The lack of consent is the essential element and need not involve physical violence. This exception
has increased the courage of many people who think their wive as their property and can use them as they
like, there is no own desire of the wife. “While murder degrades the body of the victim, rape degrades the
soul of the helpless female”.

Whenever we hear the word ‘rape’ the first thing that comes to mind is it must be done by a stranger. Rape
in the context of marriage is not even thinkable. Even a wife cannot think that she can be raped by her own
husband. Indian woman is 17 times more likely to face sexual violence from her husband than from others.13
And marital rape is the least reported crime in India as there is no for women to report a crime against their
husband that they had committed their rape as they are protected by the exception (2) of IPC section 375.

Currently, the only recourse marital rape victims have is section 498 of the IPC which deals with cruelty to
protect them against perverted sexual conduct by her husband. It is interesting to see that the IPC
understands the existence of rape outside of marriage but treats marital rape as just a case of domestic
violence providing very few remedies to the victims.

Marital rape – Against Constitutional rights

The illegality of Marital Rape violates Article 14 and Article 21 of the Indian constitution

• Article 14
Article 14 of the Indian constitution states –

11 Indian Penal Code section 375

12 Independent Thought v. Union of India, SCC Online SC 1222
13 https://indianexpress.com/article/opinion/columns/the-impunity-of-marital-rape/
 “The State shall not deny to any person equality before the law or the equal protection of the laws
within the territory of India”.14
According to article 14 of the constitution of India, every person is equal before the law and there
should be equal protection of the law to every person. Although every person is equal in front of law
exemption 2 of section375 IPC created a classification between married and unmarried women. The
classification of section 375 is not justifiable because the main motive of section 375 of IPC is to
punish the people who have done the act of rape but its exception provides immunity towards the
husband who forces themselves on their wives. Moreover, rape creates a huge effect on the victim both
mentally and physically, irrespective of whether the victim is married or unmarried. It is even more
difficult for married women because they have to live their lives with the same predator that has treated
her like that and is dependent on their husbands. In India, only 24% of women work which means the
rest are dependent either on their father or husband. 15

According to Indian law, a rape victim is categorized into three categories

1. Raped by Stranger- It is covered under sections 375 and 376 of IPC16
2. Married but legally separated-It is covered under section 376 B 17of IPC in case the culprit is
the husband
3. Married and Living with their husband- This category is not covered under Indian law,
18
moreover exemption 2 of section 375 IPC grants immunity to the husband for raping their
wives who are above 18 years of age ( Recent judgment of Independent thought vs Union of
India has changed the ag from 15 to 18)

Clearly, in the classification, only 1&2 categories are granted protection and category 3 doesn’t have any
protection in Law. Hence the marital law is violating article 14 of the Indian constitution

• Article 21
Article 21 of the Indian constitution states-

14 Constitution of India ,Article 14

15 https://www.telegraphindia.com/opinion/economic-survey-2020-60-per-cent-of-women-in-india
16 Indian Penal Code

17Section 376 B states. Whoever has sexual intercourse with his own wife, who is living separately, whether under a
decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a
term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine?

18 Indian Penal Code

“No person shall be deprived of his life or personal liberty except according to a procedure established by
law.” 19

With time Supreme Court has widened the definition of the right to life to mere just existence but also with the
right to privacy, right to live with reputation, right to live in a safe environment .right to bodily integrity. In
the Case of Bodhisattva Godhwa vs. Subhra Chakraborty20 Supreme Court of India stated Rape is, therefore,
the most hated crime. It is a crime against basic human rights and is also violative of the victim's most
cherished of Fundamental Rights, namely, the Right to Life contained in Article 2110

In the case of the State of Maharashtra vs Madhukar Narayan,21 the Supreme Court stated that every woman
has the right to sexual privacy and no one can take that right. Even prostitutes have the right to say no to sexual
intercourse10. This right should have been extended to married women to but the state has failed miserably.
Thus this judgment states’ rights to sexual privacy in Article 21 which should not be denied to married women
to.’

Through the decision of the case of Justice K.S. Puttuswamy (Retd.) v. Union of India10, the Supreme Court
had commanded that one amongst the foremost basic rights of all the voters i.e. the correct to privacy
additionally includes “decisional privacy mirrored by a capability to form intimate selections primarily
consisting of one’s sexual or generative nature and selections in respect of intimate relations”. This
judgment is the same for everybody and didn't distinguish whether or not the victim is married or unmarried.
Further, there's no ruling that the right to privacy is lost once an individual gets in marital status association
with another person.

This clearly means forced sexual intercourse without the consent of other irrespective of the fact whether
he/she is married or unmarried is a violation of the fundamental right to refrain from sexual activity. This
makes exception 2 of section 375 is contradicting this statement, nor just it contradicting the statement it is
also providing immunity to the husband against
Wife(above age 18) forcing her to have intercourse between them.
The above Argument clearly shows Article 14 and Article 21 of the Indian constitution are getting violated by
exemption 2 of section 375 and declaring it unconstitutional.

19 Constitution of India ,Article 21

20 Shri Bodhisattwa Gautam vs Miss Subhra Chakraborty on 15 December, 1995
21 State Of Maharashtra And Another vs Madhukar Narayan Mardikar on 23 October, 1990
 Marital Rape Status in International countries

Marital Rape Law in the United States

Until the mid-1970s marital rape was exempted from the rape laws of the country. In the Model Penal
Code, 22 the exemption was derived as A male who has sexual intercourse with a female, not his wife is
guilty of rape if:23 . The exemption clearly states that the rape does not include the wife as a victim of rape.

The case of Oregon v. Rideout24 was the first case to challenge this cohabitation clause in the United States.
The husband was accused of raping his wife and he became the first person in the history of the United
States to be charged with raping his wife while they were living together. A few years later the court
declared the exemption of marital rape as unconstitutional. In the case of People v. Liberta,25 the court gave
the judgment "a marriage license should not be viewed as a license for a husband to forcibly rape his wife
with impunity. A married woman has the same right to control her own body as does an unmarried woman".
Similarly, in the cases of William v. State26 and Merton v. State,27 the exemption of Martial Law was
declared unconstitutional.

By the year 1993, all states of the United States criminalize marital rape and Nebraska was the first state to
criminalize marital rape and North Carolina was the last state to criminalize marital rape. Though the law
was changed but the penalty toward marital rape was different in different states, only 17 states treated rape
and marital rape as the same.

The victim of rape was categorized under three categories 28

• Unmarried persons, who had full protection by sexual offenses laws,

• Married persons who were in an abnormal marriage (e.g. separated, one spouse had filed for divorce,
etc.), who were often treated in an intermediate way, although many states treated them either as
unmarried persons or as married cohabiting persons, and

22 Model Penal Code 1962

23 The Model Penal Code (MPC) is a model act designed to stimulate and assist U.S. state legislatures to update and standardize
the penal law of the United States of America.
24 Oregon v. Rideout Marion County Circuit Court in 1978 in Salem, Oregon.
25
THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. MARIO LIBERTA 1982

26 Williams v. State494 So. 2d 819 (Ala. Crim. App. 1986)

27 Merton v. State 500 So. 2d 1301 (1986)

28https://web.archive.org/web/20131029195932/http://law.bepress.com/cgi/viewcontent.cgi?article=1009&context=villanoval

wps
• For married persons cohabiting (spouses living together under ordinary circumstances), many state laws
were initially very restrictive, criminalizing only the "worst" forms of domestic sexual violence (e.g.
requiring violence, a higher level of threat, injury, etc.; and often punishing the crimeless severely).

These exemptions create loopholes in the laws and through which the wrongdoer tries to escape from their
heinous crime. The United States took a step forward to fill these holes by criminalizing marital rape but the
laws differ from state to state. Whether the husband will be charged or not and what punishment would be
given depends on laws applicable in that particular state.

Marital Rape law in the United Kingdom

Marital Law was not criminalized till the end of 20 century because of the concept that a husband cannot
be guilty to have intercourse with her wife irrespective of the fact that whether it is with consent or not. This
viewpoint was given by Sir Matthew Hale29 , who wrote in his book in History of the Pleas of the Crown,
published in 1736, in which he wrote The husband cannot be guilty of a rape committed by himself upon his
lawful wife, for by their mutual consent and contract the wife hath given up herself in this kind unto her
husband, which she cannot retract. 30 According to them, the husband has every right on her wife, to treat her
as they wish just because they got married which gives them every right to use as they like.

In the United Kingdom, all types of sexual offenses are now treated under the Sexual Offence Act 2003 31
before it was treated under the Sexual Offence Act 1976 and its section 1 states A man commits rape if-

1. He has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent
to it; and

2. At that time he knows that she does not consent to the intercourse or he is reckless as to whether she
consents to it and references to rape in other enactments (including the following provisions of this
Act) shall be construed accordingly. 32

The famous case of R v. R33 has changed the definition of rape in the United Kingdom. In this case, the
husband pleaded not guilty to attempted rape on her wife. R argued that it was not legally possible for the
husband to rape his wife, as the wife has given irrevocable consent of sexual intercourse through the contract

29 Sir Matthew Hale SL (1 November 1609 – 25 December 1676)[1] was an influential English barrister, judge
30 History of the Pleas of the Crown,
31 The Sexual Offences Act 2003 (c. 42) is an Act of the Parliament of the United Kingdom

32 The Sexual Offences Act 1976

33 R v R [1991] UKHL 12
of marriage and which she cannot subsequently draw. However, the Court held him liable for the rape
stating that there is no exemption of marital law in English law. The word ‘unlawful’ which was included in
section 1 of the sexual offense act 1976 was removed from the definition of rape.

Now the current definition of rape included marital rape which is covered under the Sexual Offence Act,
2003 which states

• penetrates the vagina, anus, or mouth of another person

• The penetration was intentional and sexual
• There was no consent from the side of the complainant
• Defendant knew about that there was no consent from the side of the complainant. 34

After the case, the United Kingdom took the step towards the criminalization of marital law and dismissing
the word unlawful and exemption of marital law.

Marital Law Status in Australia

The Immunity for marital law was removed in between the late 1970s and early 1990s. In Australia, the
exemption of marital law was based on English common law. The common law definition of rape
continuing to use in some states, whereas others statute the definition, that in every case enclosed a marital
status exemption. In Australian State, the provision state:- Any person who has carnal knowledge of a
woman or girl, not his wife, without her consent, or with her consent, if the consent is obtained by force, or
by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false and
fraudulent representations as to the nature of the act, or, in the case of a married woman, by personating her
husband, is guilty of a crime, which is called rape. 35

South Australia was the first Australian state to remove the exemption of marital rape in 1976 but it was
removed partially. New South Wales was the first state to remove the exemption fully in 1981. Section 73
Criminal Law Consolidation Act Amendment Act 1976 (SA) says "No person shall, by reason only of the
fact that he is married to some other person, be presumed to have consented to sexual intercourse with that
other person"36 .In the famous case of R v. L37 the High Court of Australia stated “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."38

34 The Sexual Offence Act 2003

35 https://www.qlrc.qld.gov.au/reports/r21.pdf
36 http://dspace.flinders.edu.au/jspui/bitstream/2328/20981/1/1976083.pdf
37 THE QUEEN v. L. (1991) 174 CLR 379 3 December 1991
38 https://jade.io/article/67651
 More than 150 countries in the world have criminalized marital rape till now39

Legal Provision for Marital Rape victim in India

1. Section 498A of the Indian Penal code

1
[Whoever, being the husband or the relative of the husband of a woman, subjects such woman to
cruelty shall be punished with imprisonment for a term which may extend to three years and shall
also be liable to fine.40

A woman who is a victim of marital rape can use this section to appeal in front of court against her
husband. Delhi government stated marital law is already recognized as cruelty under law. 41

2. Section 354 of the Indian Penal Code

“ Assault or criminal force to woman with intent to outrage her modesty.—Whoever assaults or uses
criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby
outrage her modesty, shall be punished with imprisonment of either description for a term which may
extend to two years, or with fine, or with both.”42

Victims of matrimonial rape will use this section to charge anyone who assaults or outrage the
modesty of any woman by the utilization of force. When it comes to section 354 especially, the
Gujarat HC said that because it pertains to “any woman”, it suggests “that a person may be held
guilty of outraging the modesty of any woman including the one who is his wife.” 43

3. Section 319 and Section 320 of the Indian Penal Code

Section 319 -Whoever causes bodily pain, disease, or infirmity to any person is said to cause hurt. 44

39 https://www.globalcitizen.org/en/content/un-women-marital-rape-laws/
40Indian Penal Code,1860,Section 498A
41 https://timesofindia.indiatimes.com/city/delhi/marital-rape-already-recognised-as-cruelty-under-law-delhi-

govt/articleshow/62561452.cms
42 Indian Penal Code,1860,Section 354
43 https://www.thenewsminute.com/article/marital-rape-not-husbands-privilege-should-be-criminalised-gujarat-hc-79230
44 Indian Penal Code,1860,Section 319
Section 320 —any hurt which endangers life or which causes the sufferer to be during the space of twenty
days in severe bodily pain, or unable to follow his ordinary pursuits. 45

4. Section 13(1) of The Hindu Marriage Act,1955

Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition
presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other
party16(a) has, after the solemnization of the marriage, treated the petitioner with cruelty; 46

The marital rape victim can apply for divorce against their husband based on section 13 on the ground of
cruelty. Marital rape itself could be a cruel pellet.

5. Section 3 in The Protection of Women from Domestic Violence Act,

2005

This act states for the purposes of this Act, any act, omission or commission or conduct of the
respondent shall constitute domestic violence in case it—
Harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical,
of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal
and emotional abuse, and economic abuse47

Although the act doesn’t consider marital rape as a criminal offense instead it considers it as
domestic violence and it can be used for judicial separation from her husband

Although marital rape is not a crime in India but there are few legal remedies available to the victim
of marital rape against her husband but these remedies are made by judges on the basis of the case to
case so there is a lot of diversion in these types of cases. Even marital rape is not a crime so the
punishments vary from case to case and also differ between marital rape and normal rape cases
which are treated under 375 of the Indian Penal Code.

Indian Judicial review on marital rape

45 Indian Penal Code,1860,Section 320

46 Section 13 in The Hindu Marriage Act, 1955

47 Section 3 in The Protection of Women from Domestic Violence Act, 2005

In the case of Nimeshbhai Bharatbhai Desai v. the State of Gujarat,48 the wife filed a fir against her husband
on sections 376,377 and 498A of IPC. The Husband was accused of raping her wife and even in unnatural
oral sex without her consent. The lawyer of the husband argued that marital rape is non-criminalized in India
so it doesn’t make any offense and he prayed to quash the fir of the wife. The bench led by Justice Pardiwala
at the Gujarat High Court held that the husband cannot be held guilty under section 376 IPC instead he will
be treated under section 354 IPC 49 and told the same to investigate officer of the case to add the section in
the Fir. While giving the judgment justice Pardiwala stated “A law that does not give married and unmarried
women equal protection creates conditions that lead to the marital rape. It allows the men and women to
believe that wife rape is acceptable.” 50.He also stated “Making wife rape illegal or an offense will remove
the destructive attitudes that promote the marital rape. Such an action raises a moral boundary that informs
the society that a punishment results if the boundary is transgressed,” 51 Judiciary can’t direct govt. to frame
laws on marital rape52. However in the response, if the petition the age under exemption 2 of section 375 which was
earlier 15 years was increased to 18 years.

Recently in the past few years, many historic and progressive decisions was taken such as removing the illegality of
homosexuality53. The five-judge bench delivers the decision in the favour of the LGBTQ community and The former
chief justice of India Dipak Mishra stated, “The LGBTQ community has the same fundamental rights as citizens. The
identity of a person is very important and we have to vanquish prejudice, embrace inclusion and ensure equal
rights.”54, decriminalization of section 497 IPC describing adultery by giving gender equality and stating it as
unconstitutional.55All these judgments were given by the former chief justice of India Dipak Misra but recently he
gave the statement regarding the criminalization of Marital Rape in India. He stated that

“I don’t think that marital rape should be regarded as an offense in India, because it will create absolute
anarchy in families and our country is sustaining itself because of the family platform which upholds family
values.”

48 R/CR.MA/26957/2017

49 Assault or criminal force to woman with intent to outrage her modesty.—Whoever assaults or uses criminal force to any
woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with
impris-onment of either description for a term which may extend to two years, or with fine, or with both.
50 https://www.thenewsminute.com/article/marital-rape-not-husbands-privilege-should-be-criminalised-gujarat-hc-79230
51 https://indiankanoon.org/doc/185050052/
52 https://www.thehindu.com/news/cities/Delhi/judiciary-cant-direct-govt-to-frame-laws-on-marital-rape-

hc/article28337275.ece
53 Navtej Singh Johar v. Union of India AIR 2018 SC 4321
54 https://time.com/5388231/india-decriminalizes-homosexuality-section-377/
55 Joseph Shine v. UOI WP (Crl.) 194/2017
Although recently many judgments were given upholding constitutional, fundamental, and individual rights
the Supreme Court is still silent on marital rape. It is strange that after so many petitions even no action is
taken yet to criminalize marital rape. In India, two-third of women face sexual violence from their husbands
and most of the cases go unreported as people also know there is no provision for marital rape in India.

Reason for Non-Criminalisation of Marital Rape

The Indian penal code was created in the year 1860 by the Britishers and India is still functioning on the
laws created then. Although there are many amendments that have been done there was no amendment for
marital rape. In Indian society the women are treated below the husband, the society has always think
women as their property and need a man to make to take care of them and make their decisions. Marriage is
looked at as a contract between husband and wife in which the wife has given her consent to have sexual
intercourse with his husband whensoever he liked. The Mindset of people is criminalizing marital rape will
demolish the sanctity of marriage and it’s better not to interfere in the matter of family. It is also thought
that, if the power is given to women they will mistreat it and there will be many fake cases of marital law.
Another reason is In India only 20% of women work in India56 so the women do have any financial security
other than that’s husband money. Also, some women may not leave there husband because of their loyalty
which overrides their pain and suffering and even leaving husband is looked as a taboo like what they have
done

Views of various committees

• Justice Verma Committee report

The committee was formed on 23rd December 2012 after a few days of brutal gang rape in Delhi on
16th December 2012. It was formed to amend the criminal law to provide quicker trial and enhanced
punishment for crimes against women. It submitted its report on 23rd January 2013. The committee
is headed by three members Justice J.S. Verma, Justice Leila Seth, and Gopal Subramanium.

The committee discussed the marital rape exemption which is given in section 375 exceptions (2).
The committee recommended, “The exception for marital rape is removed.” This has been the
biggest recommendation made by anyone on martial rape till now. The committee also said “A
marital or other relationship between the perpetrator or victim is not a valid defense against the
crime of rape and sexual violation 57.

56 https://www.statista.com/statistics/983020/female-labor-force-participation-rate-india/
57 Justice Verma Committee Report Paragraph 79(ii(a))
The committee supported their report based on the decision of the European Commission on Human Rights
in the case of C.R vs the U.K58 in which they stated that a rapist remains a rapist regardless of his
relationship with the victim. The Committee also stated that just the mere fact that the accused and the
victim are married or are in another intimate relationship may not be regarded as a justifiable factor to lower
sentences for rape. The committee also suggested that even if marital rape will be considered a crime there is
a risk that judges might regard marital rape as a less serious crime as compared to other rapes and end up
giving more lenient punishment in the cases of marital rape. The committee recommended criminalizing
marital rape as an offense but the recommendation was rejected stating marital rape cannot be criminalized
unless there is societal consensus on the issue. The government also argued that there will be “no lasting
evidence” in sexual acts involving spouses, and hence, it will be difficult to prove. 59

• 42nd Law Commission Report

The 42nd law commission report was submitted in June 1971. In their report, they put forward the
necessity to include marital rape in section 375. In their words “naturally, the prosecution for this offense are
very rare. We think it would be desirable to take this offense altogether out of the ambit of section 375 and
not to call it rape even in a technical sense. The punishment of the offense also may be provided in a
separate section60. The report differentiated between rape and marital rape and rape and viewed marital rape
as a less serious crime but it did not comment whether the exception should be deleted or should remain in
the IPC. The commission recommended adopting the definition of sexual assault in place of rape in section
375 because it is wide, comprehensive, and acceptable. Still, it falls short to criminalize marital rape as an
offense

• 172nd Law Commission Report

The 172nd law commission report was submitted on 25th March 2000. They had made various
recommendations about rape but denied removing the exception clause from section 375 stating that
it will lead to excessive interference in the matrimonial relationship 61. The commission
recommended replacing rape word with sexual assault and also said to make section 375 gender-
neutral as young boys are neglected from the scope of the law. The committee recommended
revising the age of wife to 16 years of age from 15years. This statement means whosoever forces

58C.R vs U.K, [1995] ECHR 51

59 https://theprint.in/opinion/marital-rape-wrong-reasons/9139/
60 https://lawcommissionofindia.nic.in/1-50/report42.pdf (page 277 para 16.115 )
61 https://lawcommissionofindia.nic.in/old_reports/rpt172.pdf
 their wife under the age of 16 years of age to have sexual intercourse between them should be
considered as marital rape and they also said that the onus of proving that there was no consent
should lie on wife only.

Although some of the point recommended by 172nd law commission was taken into consideration in
justice Verma committee which was formed after Delhi gang rape and it was included in criminal
amendment act 2013.

Why marital rape should be criminalized in India?

In Indian society, it is believed that marital rape doesn’t happen in India but while looking at the data
is displays a completely different picture. According to National Family, Health Survey shows that 83% of
married women between ages 15-49 have suffered sexual abuse citing as their current as of their
perpetrator62. More than one-third of the married women have been subjected to physical, emotional, and
sexual violence from their husbands. Married Women who are the victim of spousal violence have
experienced physical injuries, including eight percent who have had eye injuries, sprains, dislocations, or
burns and six percent who have had deep wounds, broken bones, broken teeth, or any other serious injury. 63
Out of all victims of spousal violence, more than 72% of women have never complained about sexual
violence, Only 14% of women tried to seek help from someone 64. Martial rape exists in society but not in
books. The amount of cases going unreported is due to women hesitates to go to seek help as there is no
provision for marital rape in India. Women are aware that marital rape is lawful in India so neither judiciary
nor legislature is going to protect them from being sexually harassed by their husbands. Even that than 2%
of the total victim believes that they will get proper justice from Indian legal system. 65 During a survey
conducted by Martha Farrell Foundation and ScoopWhoop 66 the thinking of people were if you are married
with religious ceremony it gives you license, some people even said that the wives who are not sexually
satisfied put these type of allegation on their husband. When the reporter asked that the woman hasn’t given
her consent while having sex the man replied then why did she get married? She should have stayed at her
parent's home only. “ There is nothing called consent is sex”. Surely there is the need to change in the
thinking of husband and society. Marital rape mere just doesn’t affect the mind and health of the woman but
also denies the fundamental right of her like the right to privacy. Right to body integrity, right to live with

62 Survey Takes Veil Off Marital Rape in India: Its Time We Had a Serious Discussion (thebetterindia.com)
63 https://www.news18.com/news/india/the-elephant-in-the-room-every-third-woman-in-india-faces-domestic-violence-
1654193.html
64 https://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures
65 https://www.hrw.org/report/2017/11/08/everyone-blames-me/barriers-justice-and-support-services-sexual-assault-survivors
66 https://www.youtube.com/watch?v=_1fmDIEEEoo
dignity. Further, while regular abuse the women get pregnant and it can affect the health of women as well
as child and some even force their wives to get an abortion regularly after they get pregnant again and again.

The criminalization of marital rape will be a positive step toward gender equality and women's
empowerment .they will get the right to say no when they don’t want to have sexual intercourse and even
can get legal remedies if anyone tries to force themselves on them.

Conclusion

In India, Martial rape is present but not in the books or eyes of the government. The most important change
required in India today is Social awareness among women about which laws will help them to fight
Injustice. The change in the attitude and mentality of people that there is nothing as such called marital rape.
The court ANd legislative assembly ought to take a stand on criminalizing marital status rape considering it
a grievous crime and not protect it as an accordant act within the domain of marriage. The constitution gives
a woman the right to life and the right to live with dignity but does not support the right to protect her own
body from her husband after marriage.

Several numbers of times Indian government and Judiciary have failed to provide justice to the marital rape
victim, Being marital rape legal in India married women may live in constant fear of another attack by their
husband whether she is awake or sleeping. India is moving in a positive direction regarding the issue,
several judges have shown their concern about marital rape but still not step is taken yet. In the case of triple
talaq it was declared unconstitutional and even it violates the source of Muslim law “Quran” even though
marital rape is also unconstitutional, the supreme court is still silent about the topic.

India is said to be one of the fastest-growing economies in the world and soon to be developed country but
it is seen that we are very far behind in providing justice to a victim of a heinous crime i.e. martial rape
compared to the US and UK. In the US and UK marital rape was not an offense earlier but with the passage
of time and development of society, they took a step forward in the protection of women.

The woman has and still continues to be used by men and society. there's a requirement to acknowledge her
as a personality's being, far from the traditional notion of her being a mere private property, and provides her
respect and therefore the dignity she deserves. The ancient structures have deemed marriage to be a license to
legal unwilling intercourse. there's a complete negation of the personality of women.