RESEARCH ARTICLE

(MANAV RACHNA UNIVERSITY)

MANAV RACHNA SCHOOL OF LAW

UNDER THE GUIDENCE AND SUPERVISION OF

KAVERI SHARMA
Manav Rachna University

Submitted By:
Rishabh Kumar Ambashta
Roll No- 2K21LWUN02021
Manav Rachna School of Law
MANAV RACHNA UNIVERSITY
 MARITAL RAPE: A STIGMA OF 165 YEARS

Marriage is a commencement of a new family, more than being a physical union it is an

emotional union of the spouses. “The forceful and non-consensual sexual intercourse by a
husband with his wife is known as marital rape or spousal rape”. It is not only about sex but
sexual violence and cruelty and has led to very bad physical and psychological consequences
on wives. The concept of marital rape has been overlooked for years as mentioned in
manusmriti 200 CE (Common era) and has become vulnerable after Mughal rule and this
heinous crime still continues to be the exception. Whereas in many other countries like
Australia, Nepal and United States marital rape is a criminal offence and it has been
understood that sexual intercourse should be mutually desired by both parties of the married
couple. Whereas in India there is no legislation. The JS Verma Committee was formed and
recommended for criminalising marital rape in India but those recommendations got
rejected. The bills introduced in parliament was also rejected. There are no laws to protect
the victims of marital rape. The aim of the article is to make a statement over why marital
rape should be criminalised. There are data included of the surveys done by NFHS with
regard to marital rape is concerned. We have talked about the situations in different
countries on marital rape and why India should also criminalise it without delaying it
further.

INTRODUCTION
Domestic violence has been a problem faced by the Indian society for a very long time but
only recently has it attracted this much attention. According to the National Crime Records
Bureau’s (NCRB) ‘crime in India’ 2019 report, about 70% women in India are victims of
domestic violence. One of the major violence among domestic violence is marital rape. A
famous Filipino journalist F.H Batacan has said once “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.” Rape is an unlawful sex without assent of man because
of physical drive or dangers, of due to deceitful demonstration of perpetuator. In India rape is
an offence by a male on a female under section 375 and 376 of Indian Penal Code, 1860.
Shockingly, it unequivocally avoids marital rape from ambit of conviction.
Marital rape is sex by spouse with his better half without her assent or by compel of
danger. The Penal law of India came 1860 and now we are living in 2022 and our Penal law
has completed more than 100 years of existence but still the legislation hasn’t done anything
regarding this topic, because one of the main reasons behind not doing anything or even not
discussing about this topic is political pressure. The society has always been a patriarchal one
and we know that bringing any law or questioning on the topic where we know that some
males can get offended is scarry for the government, and this is why every government has
always backed out from this issue and has always taken a safe side. Rape is not only a crime
against ladies but rather a grave infringement of a person’s basic ideal to life and individual
freedom. In the same manner it isn’t right to trust that sex with spouse is husband’s privilege
given to him because of marriage. Marital rape is a more traumatic offence for a lady if we
compare it with a rape incident, because a female who has been raped by a man doesn’t have
to live with him she doesn’t need to see him she can even get him punished for the sin he has
done but in the case of a marital rape the whole idea is reversed here. The female with whom
this heinous offence has been committed has to live with her husband has to see him daily
even after being aware of what he has done with her. And this is a thing which is more
traumatic for a female as compared to an unmarried female.
In FRANCIS CORALLIE MUIN V. UNION TERRITORY OF DELHI1 case, the idea of
right to live with human dignity under article 21 of the constitution was highlighted. As per
this case article 21 incorporate the right to live with human dignity and minimum essentials
of life also. The supreme court of India has held in a catena of cases that the offense of rape
abuses the right to life and the right to live human dignity of the victim of the crime of rape.
Right to privacy is not mentioned in the Indian constitution. Nevertheless, in a series of cases
like KHARAK SINGH V. STATE OF U.P2 ; GOVIND V. STATE OF MADHYA
PRADESH3, ; NEERA MATHUR V. LIC4 etc, any type of intense sex damages the right of
protection, sexual security.

STATISTICS
According to the National Family Health Survey 5 (2019-21), “Among married women aged
18-49 who have ever experienced sexual violence, 83 per cent report their current husband
and 13 per cent report a former husband as perpetrator.” The previous NFHS, which was out
five years ago, also stated the similar numbers. The latest survey also states that in most of
the cases of sexual harassment, the perpetrators are mostly people with whom the victims
have had an intimate relationship with.

Six percent of the women, aged between 18 to 49 who were interviewed for this nation-wide
survey by the Ministry of Health and Family Welfare said that they had experienced sexual
violence in their lifetime. Of the 4,169 women who are married and have experienced sexual
violence, 82 % said that the perpetrator was their husbands .A large majority of 84% said that
their husbands “ physically forced her to have sexual intercourse with him even when she did
not want to”. Which was similar to the IPC’s definition of rape.
Karnataka has the highest proportion of women who reported sexual violence by their
husbands (10.3). It is followed by West Bengal (9), Bihar (8.1) and Ladakh (7.7). At the same
time, only few of these women sought help, after enduring physical or sexual violence from
their partners. Of all women in India who have ever experienced sexual violence or any type
of physical violence, only 14 per cent have sought help for the violence, and 77 per cent have
never sought any help and also haven’t told anyone about the violence they have experienced,
the survey says. One of the major factors was wealth and education, these two factors played
a very important role in the percentage of violence, the survey revealed. For instance, 7.2 per
cent of the married women with less than five years of schooling have faced sexual violence
from spouses. However, among the women who had 12 or more years of schooling, it was
just 2.9 per cent. Also, 10.2 per cent of the married women from the lowest wealth quintile
faced sexual violence from husbands, while among the richest, it was only 3.1 per cent. In
India this factor is very prominent in nature cause the literacy rate in most of the states are
less and because of that the rate of physical violence and sexual abuse is very high, especially
in low literacy states. The society assumes that if the husband is not poor and is well educated
then he will not do any physical violence or any kind of sexual abuse on her spouse because
we assume that an educated and wealthy man will not do any act which will deteriorate his
image in the eyes of his wife. And the survey also supports the same. In a family where there
is money problem the husband is not well educated then most of the time wife will face
physical or sexual abuse from the husband at any point of the time.
LAW COMMISSION REPORT AND SITUATIONS IN OTHER
COUNTRIES
As far as current day is concerned, there has been two law commission reports on
criminalizing marital rape but the recommendations were bound to offense because of its
insufficiency and contradictions.
The first report to deal with the issue was published in 1971. According to the 42nd Law
Commission Recommendation, it noted that the exception clause of Section 375 of IPC will
not apply where the husband and wife were judicially separated. This was one of the praised
suggestions, still the reasoning given by it was unclear. The reasoning was not clear because
it was said that “it implies that consent is presumed in a situation where husband and wife
live together and cannot be implied when they do not live together. The second suggestion in
the report was regarding wife and husband, where women’s age is between twelve and
fifteen. Moreover, it stated that for such an offense, the punishment should be kept in the
”different section and preferably” not to be termed as rape. One of the major reasons is the
retrospective effect of the amendments in the IPC for rape would impact the marital rape, if
not separated. Though the defining part of the second suggestion to classify it as rape,
nevertheless, the conclusion was at the best to lower the degree of sexual misdemeanour. In
summary, this report highlighted the “presumption of consent that operates when a husband
and wife live together and the differentiation between marital rape and other rape, where the
former is viewed as less serious.” Further this report was silent on the exception of Section
375.
The second report in which marital rape was even considered to be added was in 2002, the
172nd Law Commission Report. During the consultation rounds, arguments were supported
regarding the validity of the exception clause per se. In the same it was interestingly argued
by sakshi(a women’s rights organisation), that there are several instances where violence by a
husband towards wife was criminalized, hence there is no reason to defend the marital rape
from the operational law. The law commission rejected this argument and was unable to find
sufficient reasons to recommend that ”the deletion may amount to excessive interference with
the marital relationship.”
Now if talk about the fact that how many countries are there were marital rape is criminalised
then you will definitely see some big countries name there. Poland was the first country to
explicitly criminalise marital rape in 1932. Australia, under the influence of the second wave
of feminism in 1976 was the first common law country to pass reforms and criminalise
marital rape. Since the 1980’s several common law countries have criminalised marital rape
like south Africa, Ireland, Israel, Ghana etc. Over the past two decades, several Scandinavian
countries and the communist bloc have followed the suit.
In New York, the Court of Appeal struck down the exception of marital immunity from the
code in 1984. All 50 states if USA have made rape a crime. In 2002 Nepal also criminalised
marital rape. Marital rape is punishable for a lifetime of the convict, especially if the victim is
killed. In Guatemala, the Philippines, Serbia, Grenada marital rape can be punished for up to
30-50 years. Marital rape is punishable with up to 10-30 years of imprisonment in
Mozambique, Ecuador, Luxembourg, New Zealand, Greece, Argentina and Monaco.
Law in South Korea-: One of the recent countries to criminalize marital rape is South Korea.
Earlier in the 1970’s the supreme court had upheld the view that there could not be martial
rape between a husband and wife, but this thought process has changed over the past four
decades. The lower and higher court have recently criminalised sex without wife’s consent.
Korean society had so far stood behind a concept of a spouse’s conjugal rights to sexual
intercourse with each other. Some people feel that it is not justified on the part of the state to
meddle in the intimate-sexual life of married couples. They also argue that the court will have
difficulties in proving the rape if the defence claims consent. It is difficult to conclude which
sex is rape and which sex is not in a married couple as their sex is recurring. The biggest
issue in the judgment of the Supreme Court Korea was whether wives would be considered
among the “women” protected under existing rape-related criminal law. Proponents of
excluding spouses from the definition argued that the ”rape” aspect was the main emphasis.
The problem was that according to Korean dictionaries, the word for rape(“ganggan”) is
defined specifically as a forcible form of non-marital intercourse (“ganeum”). Logically, this
would mean that wives are not to be considered victims of the crime. But the SC interpreted
the meaning of “ganeum” as referring to sexual intercourse in general and therefore by such
interpretation wives would be included among the women protected by rape laws. “The term
‘women’[‘bunyeo’ in Korean] refers to all females, whether they are adults or minors,
married or unmarried,” the court said in its majority opinion. All thirteen judges agreed that
sexual acts that took place under duress or threat of violence should be punished, including
between married couples.

CASE LAWS AND CURRENT SITUATION IN INDIA

Marital rape has been in talk in India for more than a decade now, and we know that nothing
solid has been happened yet. In 2014 in ARNESH KUMAR V. STATE OF BIHAR &
ANR5was a setback for the ones demanding for criminalisation of marital rape. The court
said that criminalising the marital rape will rupture the social and family system of India.
After this judgement a petition was filed in the court in 2015 also got dismissed, citing that
the law can not be changed for only one woman.
In the case of SUCHUTA SRIVASTAVA V. CHANDIGARH ADMINISTRATION6, the SC
said that the right to make choices about sexual activity is under the scope and ambit of
article 21 of the Indian Constitution. In India adult women have to rely on the section 498A
of the code subjecting women or the wife to cruelty or provision under the Protection of
Women from Domestic Violence Act, 2005. In 1993, the UN Declaration on Elimination of
Violence Against Women (DEVAW) recognised any violence against women, including
marital rape, violating her fundamental human rights. The Assembly also requested all the
member countries to make their own legislation to ensure women’s safety.
On August 7, 2021 Kerala HC delivered a judgment for the wife who had alleged marital
rape and mental cruelty by her husband of 12 years. In the case the husband had appealed
against the divorce. The court decided that even though marital rape is not considered by law
but it can be justified as a ground for divorce. The judgment by Justice A Mohamed
Mustaque and Dr Kauser Edappagath: “In modern social jurisprudence, spouses in marriage
are treated as equal partners and husband cannot claim any superior right over wife either
with respect to her body with reference to in individual status. Treating wife’s body as
something owing to husband and committing sexual act against her will is nothing but
martial rape. Merely for the reason that the law does not recognise marital rape under penal
law, it does not inhibit the court from recognising the same as a form of cruelty to grant
divorce.”
The court considered marital rape under the ambit of cruelty. We know that cruelty is a pre-
established ground for divorce in Hindu Marriage Act under section 13 and under section 27
of the Special Marriage Act. Thus the appeal of husband in this case was dismissed and the
court granted divorce.
Now if see the current scenario of marital rape, Delhi high court has already given his
judgment on the topic of marital rape which was on the date 11 may 2021. It was a split
verdict of a divisional bench comprising of two judges. Now this case is going to be heard in
the Apex Court which is undoubtably the Supreme Court of India. Supreme Court has said
that from 14th march, 2023 it will begin to hear petitions seeking to criminalise martial rape.
The apex court has asked the union government to file an affidavit before the court. The
parties have been asked to file their written submissions of their arguments with case laws.
The Karnataka high court had earlier held that a husband was liable to be charged for rape if
he has forcible sex with his wife. The Karnataka government had supported the High Court
judgment in and affidavit in the apex court subsequently. Now all of this is on the hands of
SC and the CJI DY Chandrachud.

CONCLUSION AND SUGGESTION

In the current world marital rape is a topic which has to be taken very seriously and we all
should focus on. In India almost around 140 years ago there was a situation in front of the
law makers. A girl aged 11 years was rape brutally by her husband who was 35 years old.
The then colonial government proposed to amend the age of consent from 10 to 12 years but
still some of the so-called leaders and the society at large opposed this decision and our Dr.
B.R. Ambedkar criticized them all and gave an idea about the present day scenario. India is a
very big country with so many different problems around it but still India needs a very big
reform in our Penal law because it has so many loopholes which should be addressed and
taken care of. The Verma Committee recommended to remove the exception from S. 375 but
still the Criminal law amendment act, 2013 ignored the suggestions of the committee. The
only argument which the central government has when it comes to the topic of marital rape
then it is that criminalising it will destroy the relation of husband and wife and it will be an
interference in the marital relation, but for just the sake of the institution of marriage we can
not allow a man to have non consensual sexual relation with a women. Marriage does not
give right to a man to have sexual relation whenever he wants wherever he wants, a woman
also has equal rights in a marriage and the right to give consent, it is a very important right
which husband should not violate. Marital rape is out-dated notion of marriage which
regarded wives as nothing more than a property of their husbands.
Indian society and legislature need to understand that marital rapes are one of the worst forms
of rape because there are no laws for marital rape. In India it is wifie’s duty to get herself in
pain for the pleasure of husband. The consequences have been worst like women have
suffered physical trauma includes vaginal injuries and health issues STDs, miscarriages, HIV
etc. In case of domestic violence women have suffered knife wounds, broken bone and
swellings. There are also psychological consequences like shock, extreme fear, depression
and some women have ended up committing suicide. After knowing about such
consequences also people think it is a wife’s duty and women still continues to take pain
because of societal pressure and to keep the family together but what about her life? Is she
born to sacrifice? Such question is never ending and the pain of victims of marital can’t be
even imagined. We need martial rape to be criminalised and as we fought against domestic
violence, rape, acid attacks in the same way this fight will continue against crime of marital
rape.
‘Marial Rape’ is not about sex, but about violence; it is not about marriage, but about lack of
consent. Rape is rape and it should be penalised and wherever it occurs
i

i
1. 1981 AIR 746
2. 1963 AIR 1295, 1964 SCR (1) 332
3. 1975 AIR 1378, 1975 SCR (3) 946
4. 1992 AIR 392, 1991 SCR Supl. (2) 146
5.CRIMINAL APPEAL NO. 1277 OF 2014(SC)
6. CIVIL APPEAL NO.5845 OF 2009(SC)
7. https://thelawblog.in
8. https://lawcommissionofindia.nic.in
9. https://sistersinislam.org
10. https://indiankanoon.org
11. https://www.lawctopus.com