2ND YEAR B.B.A., LL. B (HONS.

)
1ST INTERNAL ASSESSMENT- LAW OF CRIMES I

“BEYOND THE RHETORIC: IS MARRIAGE A LICENSE TO RAPE IN INDIA?”

Name: Sannidhi Mahesh Sawant

Division: B
PRN: 22010126181
Course: BBA. LLB. (Hons.)
Batch: 2022-2027
Words: 2532

“beyong the rhetoric: is marriage a license to rape in india?” |22010126181 1

 “BEYOND THE RHETORIC: IS MARRIAGE A LICENSE TO
RAPE IN INDIA?”

"Her friends used to tell her it wasn't rape if the man was your husband. She didn't say anything,
but inside she seethed; she wanted to take a knife to their faces."

- F. H. Batacan

ABSTRACT

In India, women have been and continue to be treated inhumanely in many ways. They are often
controlled by a male domination and are prone to assault not only outside but within their
homes too. This research article aims to delve deeper into the grey area established by the laws
relating to marital rape in India. The laws in India being silent on the same issue ultimately
provide no relief to the victims of such grave uncodified crimes. The article also contends that
the exception clause present in the Indian Penal Code, 18601 is entirely unconstitutional by
making a thorough analysis of the fundamental rights guaranteed under the Indian Constitution.
It also draws attention to the dearth of other legal channels via which a woman who has been
raped by her husband might seek reparation. The article emphasizes the need for a victim-
centric advancement in rape laws and the need for including legislations which counter issues
relating to marital assault and abuse.

KEYWORDS

Rape, Consent, Marital Rape, Assault, Fundamental Rights, IPC, India

1
Indian Penal Code,1860

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 INTRODUCTION

In today’s world, it is largely believed that men and women are treated equally but we must
ruminate on its actuality. Women are often the victims of violence and abuse caused by
perpetrators having a male dominant population.2 Unfortunately, Violence in the form of rape
and sexual assault is witnessed by a large group of women today.

It should also be noted that rape alone is a scarring event for every victim but women that
undergo sexual assault on a regular basis as a part of their married life shall remain scarred
forever. In a country like India, divorce is not always the easiest way out for traditional women.
As they are largely dependent on their husbands, they prepare themselves to be dominated by
their husbands and to be used as puppets. Marriages involving abuse must inevitably be grounds
for divorce. Marriage is often considered to be a “sacred” foundation but the lack of equality
between the couple contradicts the popular opinion. Considering the popular belief, sex between
a married couple is deemed to be with bona fide intention at all times but can marriage be an
excuse to coerce the spouse’s opinion?

In order to resonate with this question, the idea of consent must be complied with. The fine line
between consent and coercion shall be taken into consideration as women have the right to
refuse, regardless of whether the perpetrator is a stranger or her own husband. Criminalization of
any act depends on the society's "social settings" and "social-moral-legal ethos." Therefore, the
IPC's rape statute, which does not make marital rape a crime, must be understood in light of the
present circumstances. Therefore, the inability of women to voice their pains enunciates the need
for a strict legislation.

RESEARCH OBJECTIVES

The following are the primary goals suggested by this article-

 To analyze the present legislative framework for rape and marital rape in India.

2
Delhi Domestic Working Women’s v. Union of India (1995) SCC (1) 14

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  To scrutinize the exemption clause under Section 375 of IPC3 and to examine its cynical

outcomes.

 To compare the validity of the clause with respect to fundamental rights guarantee under

Article 144and 215of the Constitution.

 To propose reforms as a solution to the predominant issue of marital rape.

LITERATURE REVIEW

“Marital Rape: A Non-Criminalized Crime in India?” by Bhavya Dayal6

Dayal’s research paper offers valuable insights on marital rape in India. It provides a
comprehensive study of the historical origins to the exception under Section 375, examining how
cultural values and patriarchal norms influence legal perceptions.

The study emphasizes the negative effects of the lack of criminalization, such as the violation of
survivors' fundamental rights, diminished dignity, and psychological anguish. Dayal goes on to
talk about how survivors have few legal options and the difficulties they face while trying to get
justice. In order to close this significant gap in India's legal system, the study paper urges societal
awareness and legislative reform.

While the paper makes significant contribution to the discourse on marital abuse, certain research
papers and avenues to explore appear. The study could have included a comparative analysis
with international legislation and rape laws. Additionally, incorporating the survivor’s
perspectives could add a human dimension to it and contribute to the study.

3
The Indian Penal Code, 1860, §375
4
Constitution of India, Art.14
5
Constitution of India, Art.12
6
Bhavya Dayal, Marital Rape: A Non-Criminalised Crime in India?, 4 INDIAN J.L. & LEGAL Rsch. 1 (2022)

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 “Criminalisation of Marital Rape: Understanding its Constitutional, Cultural and Legal
Impact” by Raveena Rao Kallakuru & Pradyumna Soni7

Published in an undisclosed journal, this paper delves into the multidimensional aspects of
criminalizing marital rape, analyzing its implications from constitutional, cultural, and legal
perspectives. Kallakuru and Soni examine the legislative developments and discussions
surrounding the criminalization of marital rape in India. They emphasise how activism, the
media, and public opinion all play a part in influencing the conversation and promoting
legislative change.

The paper could also benefit from an in depth analysis og the psychological consequences faced
by the victims of coerced penetration. Additionally, the paper could entail concerns with
gathering evidence, engaging in the legal process, and ensuring survivors have access to justice.

“Judicial Approaches to the Criminalisation of Marital Rape” by Vijay P Singh8

Vijay Singh’s paper offers a comprehensive analysis of how the judiciary deals with complex
issues like marital rape. It explores the viewpoints of various luminaries and legal professionals
who share their views on this topic. Landmark judgements of the Supreme court are highlighted
by the author in order to advocate for a reform.

As the study is focused on judicial approaches, the paper could have elaborated on judicial
activism in influencing legal reforms. Additionally, a discussion of how notable marital rape
cases have been covered in the media and the public's discourse could shed light on how societal
and legal issues are intertwined.

7
Raveena Rao Kallakuru & Pradyumna Soni, Criminalisation of Marital Rape: Understanding its Constitutional,
Cultural and Legal Impact, 11 NUJS L. Rev. 121 (2018)
8
Singh, V. P. (2022). Judicial Approaches to the Criminalisation of Marital Rape. Indian Journal of Gender Studies,
29(1), 10–32. https://doi.org/10.1177/09715215211056791

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LEGAL FRAMEWORK FOR MARITAL RAPE

PROVISIONS UNDER THE INDIAN PENAL CODE

As per the provisions of the bare act, “rape” and the its surrounding areas have been covered
under Section 375 and its punishment under Section 376. 9

Section 375 of the Indian Penal Code (IPC) delineates the legal parameters of the offense of rape
within the Indian legal framework. Central to this section is the concept of consent, whereby the
presence or absence of the female's voluntary agreement to engage in the sexual acts serves as a
pivotal determinant. Non-consensual acts of sexual intercourse are construed as constituting
rape. Importantly, the incapacity of the female to provide consent due to factors such as age,
mental incapacity, or intoxication 10is a critical consideration in establishing the criminality of
the act.

Alternatively, the section also provides an exception to the same which states-

Exception 2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being
under fifteen years of age, is not rape.11

This exception gives rise to the predominant grey area encompassing marital rape. As a result,
marital rape is only considered rape if the spouse is under the age of 15, and the punishment is
less severe.

RECOMMENDATIONS BY LEGISLATIVE BODIES

1. 172nd Law Commission Report12:

The review of rape legislation report was delivered to Ram Jethmalani, minister of law and
justice, on March 25, 2000. Justice B.P. Jeevan Reddy, a former Supreme Court justice, served

9
Subs. by Act 43 of 1983, s. 3, for the heading "Of rape" and ss. 375 and 376
10
Srisamuthra A. & Rashmi Shri R. S., Marital Rape: A Non-Criminalized Crime in India,
3 INDIAN J.L. & LEGAL Rsch. 1 (2021).
11
The Chairman, Railway Board v. Chandrima Das, AIR 2000 SC 988
12
Law Commission of India, Indian Penal Code, Report No. 42 (June 1971), available at http://
lawcommissionofindia.nic.in/1-50/report42.pdf

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as the committee's chairman. In its 172nd report, the Law Commission of India made the
recommendation that exemption 2 of section 375 of the IPC be repealed. Forced sexual contact
with married women must be punished the same as physical assault.13

2. Pam Rajput Committee Report (National Women Policy):

This committee proposed that marital rape be made illegal regardless of the wife's age or the
nature of the marriage. It also criticised the government for recognising marital rape but not
making it a crime.

3. Justice Verma Committee:

The committee advises against making marital rape illegal. According to the committee,
exception 2 from section 37514 has been repealed in the majority of the nations. It compels us to
make marital rape a crime in our nation and eliminate the exception.

IS MARRIAGE A LICENSE TO RAPE?

Rape as defined by the Supreme Court of India is one of the gravest crimes to human dignity and
the only difference with respect to marital rape is that the act is performed by the victim’s
husband who assumed the role of her protector according to the Hindu Marriage Act.15 It is a
disgrace to have one’s dignity shaken by the only person who promises to protect and nurture
that human for life.

Our legal system views marriage as an absolute license for the husband to take advantage of her
however he sees fit. Any sexual assault crimes done in expectation of marriage are excused
because of the enduring state and mystique surrounding marriage.Women are not given the right
to say no and implied consent is said to exist in all matrimonial arrangements. This is clearly in
13
Banerjee D, Rao TSS. The Dark Shadow of Marital Rape: Need to Change the Narrative. Journal of Psychosexual
Health. 2022;4(1):11-13. doi:10.1177/26318318221083709
14
Corporate Author Harvard Law Review Assoc Address Gannett House, TO HAVE AND TO HOLD: THE
MARITAL RAPE EXEMPTION AND THE FOURTEENTH AMENDMENT, OFFICE OF JUSTICE
PROGRAMS,
15
Hindu Marriage Act, 1955

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violation of international human rights. The notion that marriage is a "licence to rape" are
ethically contested by the ideas of consent, autonomy, and human rights. Maintaining the worth
and autonomy of both spouses in a marriage is essential for creating healthy, equitable
partnerships.

Overtime there has been a paradigm shift on how marital rape is viewed in India. In many
countries, including India, the punishment of marital rape is gaining traction as society realizes
the importance of permission for all forms of sexual activity, regardless of the relationship
between the parties involved. For instance, the Supreme Court of India has stated that marital
rape is against a woman's fundamental rights. Although there are still provisions to the Indian
Penal Code governing marital rape16, the debate over these exceptions emphasizes the need for
reform so that married women are given the same protection as unmarried women.

VIOLATION OF FUNDAMENTAL RIGHTS

 Infringement of Article 14

According to Article 14 of the Indian Constitution, "[t]he State shall not deny to any person
equality before the law or equal protection of the laws within the territory of India."" Although
the Indian Constitution guarantees equality to all, Indian criminal law discriminates against
female victims of rape by their husbands.17

The exception in subsection 2 of Section 375, which denies women equal protection from rape
and harassment by their spouses, violates Article 14 of the Constitution. Married women find it
challenging to leave these violent circumstances because they are legally and financially
obligated to their husbands, and this gives husbands the right to coerce their wives into having
sexual relations. When the IPC was drafted in the 1860s, a married woman was not regarded as a
separate legal entity. She was seen as her husband's property instead. 12 Due of this, she did not

16
Law Commission of India. (1971). Forty-second report: Indian penal code. http://lawcommissionofindia.nic.in/1-
50/Report42.pdf
17
Article 14 of The Indian Constitution

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have many of the rights she does now that she is a separate legal person, like the ability to submit
a grievance filed against someone else using her real name. Second exception, which exempts
husbands' conduct against their wives from being regarded as "rape," is strongly the preexisting
notion of fusing the individuality of the woman with her husband.18 The marital exception to the
IPC's definition of rape was drafted based on the Victorian patriarchal norms that did not
recognize men and women as equals, however, the laws today have changed and they are made
to mold with the ideologies of a developed nation. Men and women have separate identities and
much jurisprudence in the modern era is explicitly concerned with the protection of women.

The abundance of laws protecting women from violence and harassment passed since the turn of
the century, such as "The Protection of Women from Domestic Violence Act19" and the "Sexual
Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act," indicate this
concern.20 In Budhan Choudhary v. State of Bihar21 and State of West Bengal v. Anwar Ali
Sarkar, the Supreme Court ruled that any classification made in accordance with Article 14 of
the Indian Constitution is subject to a reasonableness test and can only be upheld if it has some
rational connection to the goal that the act seeks to accomplish. But Exception 2 undermines
Section 375's intent, which is to defend women and hold rapists 22accountable for their crimes,
thus making the test for reasonable classification void.

 Infringement of Article 21

Article 21 of the Indian Constitution is also violated by Exception 2. According to Article 21,
"no person shall be denied his life and personal liberty except per the procedure established by
law."23 The Supreme Court has interpreted this phrase to go beyond the simply literal protection
of life and liberty in a number of rulings. In recent years, courts have started to acknowledge the
larger rights to life and personal liberty as including a right to refrain from sexual engagement
and a right to be free from unwelcome sexual behaviour. "Sexual violence, aside from being a

18
Makkar S. Harvard Human Rights Journal. 2019https://harvardhrj.com/2019/01/marital-rape-a-non-
criminalized-crime-in-india/ (Accessed February5, 2022).
19
Protection of Women from Domestic Violence Act, 2005, No. 43, Acts of Parliament, 2005 (India)
20
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, No. 14, Acts of
Parliament, 2013 (India).
21
Budhan v. State of Bihar, AIR (1955) SC 191 (India).
22
State of West Bengal v. Anwar Ali Sarkar, AIR (1952) SC 75 (India)
23
Article 21 of The Indian Constitution

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dehumanising act, is an unlawful intrusion into a female's right to privacy and sanctity," the
Supreme Court concluded in The State of Karnataka v. Krishnappa24. Non-consensual sexual
activity qualifies as both physical and sexual violence, according to the same ruling. Later, in
Suchita Srivastava v. Chandigarh Administration25 , the Supreme Court equated the right to
choose a sexual activity with Article 21 rights to personal liberty, privacy, dignity, and bodily
integrity.

THEORY OF CONSENT

The very basis of determining whether the offence is rape or not is the presence of consent.
Without consent, sexual activity between a man and a woman is considered rape, whereas sexual
activity with consent is not illegal26. Although consent is clearly required, when forced sexual
contact occurs between married people, the need for consent instantly. If the legal definition of
rape is based on the absence of legally binding consent, one cannot understand how marital
status can make a difference. It appears that the Sir Mathew Hale thesis, which was first put
forward in 1736, is still binding on Indian 27legislators. This idea is not only false, but it is also
unjustified. The Supreme Court of New Jersey (USA) made the following statement in the case
of State v. Smith (1981): "The implied consent justification is not only offensive to our valued
ideals of "personal liberty," but is also not sound where the marriage itself is not irrevocable." 28
This statement is relevant in Indian jurisdiction.

The theory of consent holds paramount significance in the discourse surrounding marital rape,
where the intricate interplay of intimate relationships, autonomy, and societal norms contributes
to complex legal and ethical considerations.

1) Evolution of Consent Theory:

24
The State of Karnataka v. Krishnappa, (2000) 4 SCC 75 (India)
25
Suchita Srivastava v. Chandigarh Administration, (2008) 14 SCR 989 (India)
26
Arora, P. (2011). Proposals to reform the law pertaining to sexual offences in India. Journal of Indian Law &
Society, 3, 233–285
27
Lesses, K. (2014). PGA v. the queen: Marital rape in Australia: The role of repetition, reputation and fiction in the
common law. Melbourne University Law Review, 37(3), 786–833.
28
Ryder, S. L., & Kuzmenka, S. A. (1990). Legal rape: The marital rape exemption. John Marshall Law Review,
24(2), 393–421.

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Due to the marriage contract, married partnerships were historically frequently understood to
include an implied permission to sexual activity. The patriarchal traditions of the time, in which
females were frequently seen as subordinate to their husbands, were a major contributor to this
impression. But over time, legal systems all around the world have come to value people's right
to their own bodies and their ability to live independently from one another. 29

2) Dynamics of Control and Power:

A spouse's ability to freely withhold or grant permission may be hampered by power disparities
resulting from societal standards, economic dependency, and emotional ties. Traditionally, men
tend to assume control over women and women’s consent often gets side barred.

3) Informed Consent and Marital dynamics30:

In most cases, it’s frequently assumed that consent to sexual activity exists throughout the
marriage. The implied consent present in marriages has been a long standing condition. Women
are often not given the right to choose. The increasing notion that consent must be particular to
each instance of sexual behavior, however, may be undermined by this point of view. To
guarantee mutual 31understanding and respect for boundaries, couples may need to engage in
open conversation.

4) Emotional and Psychological traumas:

5) Survivors of such instances undergo major mental trauma. Survivors may experience
trauma that goes beyond the physical act, affecting their health, self-esteem, and opinion
of their marriage.

CONCLUSION AND RECOMMENDATIONS

29
Marriage and Rape: We need a law on marital rape but such acts cannot be separated from the structure of the
Indian family. (2013). Economic and Political Weekly, 48(12), 7–8. http://www.jstor.org/stable/23527135
30
T. Sareetha v. T. Venkata Subbaiah, 1983 SCC OnLine AP 90 : AIR 1983 AP 356.
31
Harvender Kaur v. Harmander Singh Choudhry, 1983 SCC OnLine Del 322 : AIR 1984 Del 66.

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According to the Indian government, marital rape cannot be deemed a crime since what the
spouse perceives as rape may not be rape to others. This statement makes reference to how
archaic Indian culture is and highlights the predominant backwardness in our society.

Moreover, the exemption clause violates Part III of the Constitution's right to health because it
gives married women no recourse to the mental and physical trauma they endure. In nations like
the United Kingdom, the United States, and others, marital rape is now a crime. This is an
illustration of how India continues to adhere to an archaic legislation. It is morally, ethically, and
logically absurd. Rape is an unpardonable evil, regardless of whether a woman is married or not.
Eliminating the provision that imposes a younger age requirement for marital rape cases to
qualify as crimes is another grave need. It must also be verified that the legislative modifications
adhere to India's duties under international treaties, such as the Convention on the Elimination of
All Discrimination Against Women (CEDAW), which mandates action to end violence against
women.

Additionally, awareness amongst the common people must be increased. Democracy has given
us the right to be an open critique if it is for fruitful causes. Today, the nation’s voice is what
matters the most, the nation has the power to demand for changes. I believe PIL’s can be filed by
the public to take down the exemption clause and move towards a safer, better and powerful
nation.

REFERENCES

Cases

 Independent Thought v. Union of India AIR (2017) SC 4904.

 Indian Young Lawyers Association v. State of Kerala (2018) SCC SC 1690.
 Joseph Shine v. Union of India (2018) SC 1676.
 Mohd. Iqbal v. State of Jharkhand (2013) 14 SCC 481

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  Delhi Domestic Working Women’s v. Union of India (1995) SCC (1) 14 T.
 Sareetha v. T. Venkata Subbaiah, 1983 SCC OnLine AP 90 : AIR 1983 AP 356.
 Harvender Kaur v. Harmander Singh Choudhry, 1983 SCC OnLine Del 322 : AIR 1984
Del 66.
 Budhan v. State of Bihar, AIR (1955) SC 191 (India).

Articles

 Singh, V. P. (2022). Judicial Approaches to the Criminalisation of Marital Rape. Indian

Journal of Gender Studies, 29(1), 10–32. https://doi.org/10.1177/09715215211056791
 Fredman S. (2013). The reform of India’s sexual violence laws. Oxford Pro Bono
Publico. Retrieved October 7, 2019,
from https://www.law.ox.ac.uk/sites/files/oxlaw/3._reform_of_indias_sexual_violence_la
ws_.pdf
 Gupta, Devansh. "Marital Rape in India." Indian Journal of Law and Legal
Research, vol. 2, no. 2, August-September 2021, pp. 1-18. HeinOnline,
https://heinonline.org/HOL/P?h=hein.journals/injlolw2&i=4361.
 Kamal, Baggi Sri. "Marital Rape in India: An Analysis." Indian Journal of Law and
Legal Research, 4, 2022-2023, pp. 1-6. HeinOnline, https://heinonline.org/HOL/P?
h=hein.journals/injlolw9&i=2425.
 Samiksha Pande, The Issue of Marital Rape in India, 1 Jus Corpus L.J. 80 (2020).

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