MARITAL RAPE: - NEED FOR ITS CRIMINALISATION IN INDIA

ABSTRACT

Matrimony is a sacred bond that ties two people, and two families, together. But if this
matrimony is without consent or the people involved in the marriage are not content, then it
can turn sour. Our society is inclined towards a patriarchal system from the ancient times of
hunting and gathering. So, it comes as a natural nature for men to display emotions of
dominance. Looking around the globe, law and order has a huge role in prescribing and
limiting standards for human conduct. Under the Indian Penal Code, 1860, the laws have
been made and appropriate punishment for the same has been provided. But what most of
the people fail to comprehend is that these laws were made by the British a long time ago.
At that time Marital Rape was not considered a crime which can be one of the reasons why it
was exempted under the penal laws. This research paper substantiates and focuses solely on
evolution of the rights for women; mainly the effects of Marital Rape; and the reasons how it
is in violation of the Constitution of India.

Keywords: - Marital, Rape, Woman, Section 375, Dowry, Harassment, Legality, Domestic
Violence, Wife

1
 MARITAL RAPE: - NEED FOR ITS CRIMINALISATION IN INDIA

1. INTRODUCTION

For a long time, people believed that a woman’s duty in her married life is to look after her
husband, bear children, take care of household matters, cook and provide emotional and
sexual needs to her husband. This was first noted in Manusmriti which is considered to be an
ancient legal text and has been used to formulate the Hindu Law.

imaṃ hi sarvavarṇānāṃ paśyanto dharmamuttamam |

The same text states that it is the duty of a man to protect his wife, even if he is physically
weak. This kind of stigma has been created by the society itself and men assume the role of
dominance, sometimes taking it too far. The women were not given the status similar to that
of their male counterparts and, before marriage, were considered the property of their fathers,
and after their marriage, were considered the chattel of their husbands. The father could wed
off his daughter to whomsoever he deemed fit. The woman had to provide her husband
sexually with or without her consent to ensure progenies and continuation of the family line.
This made the woman believe that being sexually available to her husband at all times was a
necessity and her duty; she could never decline her husband’s wishes. But these laws were
written a long time ago when all of it was socially acceptable.

Women were considered to be the slave of man and the ill practices like Sati and child
marriages were prevalent in the country but the situation in the country changed after the
movement of Raja Ram Mohan Roy. Even Mahatma Gandhi took a great initiative to improve
the social conditions of the women because it was the first time in the Indian Independence
Struggle that women participated in the same and were at par with their male counterparts.
The outcome of these very movements was a Constitution which gave equality to the women
and almost all the rights that are given to the men; be it Right to Vote or Right to contest
elections. Post-Independence, there were improvements and advancements in almost all the
fields and focus on the life being given to woman could be made better. They were rather
discriminated on the basis of their gender. The women have always fought for their rights and

1
Ganganatha Jha, Manusmriti with the Commentary of Medhatith,Wisdom Library,
https://www.wisdomlib.org/hinduism/book/manusmriti-with-the-commentary-of medhatithi/d/doc201364.html

2
this was one of the main reasons why the status of women and men was equated in the Indian
Constitution. There were many legislative reforms taken after the independence of the country
to strengthen women and improve their status in the country so that no discrimination takes
place with them. With the introduction of a Constitution, women have been granted equal
social as well as political rights to that of men.

Women have been given the freedom and all the support from the constitution so that they can
help in shaping the future of the country. The recent example of Mangalyaan is worth quoting
because the whole team in the same consisted mostly of female scientists. Even though
women have achieved great heights and are striving in almost all the fields whether it is
education, law enforcement agencies or science and technology, there are many areas where
our country lags behind.

2. MARITAL RAPE

Marital rape in layman’s terms can be explained as a spouse having sexual intercourse with
their spouse without their consent.

According to Section 375 of the Indian Penal Code –

“Rape means unlawful sexual intercourse or any other sexual penetration of the
vagina, anus, or mouth of another person, with or without force, by a sex organ,
other body part, or foreign object, without the consent of the victim.”2

However, there is an exception provided which says that if non-consensual sexual intercourse
takes place between a married couple, in that case, it will not amount to rape 3. Domestic
violence refers to the violent or aggressive behaviour within the home which involves the
violent abuse of a spouse or partner4 which takes place with a woman because the husband in
all the circumstances is powerful and most males comprehend that marriage gives them the
right to have sexual intercourse with the wife at any point of time whether she is willing or
not. This is the face of a patriarchal society; this act is detrimental to the institution of
marriage. IPC, 1860 provides for rape and punishment for rape under section 375 and 376,
respectively.

2
The Indian Penal Code,1860 (45 of 1860), s. 375
3
The Indian Penal Code,1860 (45 of 1860), Exception to s. 375
4
The Protection of Women from Domestic Violence Act, 2005. (No 43 of 2005)., s.3

3
Marriage is a form of social bonding between both the spouses and everything in this
institution needs to have the consent of both; Justice Ahmad in the case of Bodhisattwa
Gautam v. Subhra Chakraborty said that this“cruel act, in turn, destroys the entire
psychology of a woman and pushes her into deep emotional crises”5.

Marital Rape is a crime in almost all the countries of the world wherein they have either
made amendments to the existing law or added a new law for the same. Marital Rape has
been criminalised in around 150 countries of the world wherein countries have brought
amendments in their law for criminalising marital rape. In the United States, marital rape is a
crime in all the 50 states whereas in the United Kingdom the maximum legal penalty for
marital rape is life imprisonment. In countries like the United Kingdom 6, Fiji it was
criminalised due to decision delivered by courts, in some countries like Brunei 7 the offence is
explicitly criminalised. In some countries like Bangladesh, India 8 the law for marital rape
does not exist because women are considered the property of the husband and the state does
not interfere in the institution of marriage.

Many legislations have been passed in the country to check violence towards the woman such
as dowry, domestic violence or cruelty but amongst them is marital rape that has not yet been
criminalized in the country. Marital Rape is inhumane and the woman knows that she has to
live her whole life with the perpetrator which has a substandard physical and mental effect on
her. It is a very under-reported crime in the country because most of these women know that
going to the authorities will be futile as there are no laws for marital rape; they can also face
social boycott.

In the 21st century, when society is well aware of their rights and needs, laws need to be
amended. Indian Penal Code, 1860 provides that having sexual intercourse with a wife who is
under 15 years of age, is a crime. However, there is a loophole in this situation. According to
the Prohibition of Child Marriage Act, 2006, child marriage is only voidable and not void in
India which says that it is not immediately illegal 9. The minor party, when attains the age of
major, can file for divorce within one year of attaining majority otherwise, the marriage is
considered legal. But till the party can attain legal age and there being no provision for men

5
Bodhisattwa Gautam v. Subhra Chakraborty (1996) 1SCC 490
6
R. v. R, [1992] 1 AC 599 (UK)
7
Brunei’s Penal Code, s.375
8
Supra note 3
9
The Prohibition of Child Marriage Act, 2006, s. 3(a)

4
asking for consent with their wife aged 15-18 years, this provides a window for husbands to
have sexual intercourse with their wives till they reach the age of majority. Consensual
intercourse between a 17-year-old boy and a 17-year-old girl is illegal but non- consensual
intercourse between a 50-year-old man and a 16-year-old girl can be legal.

Under the Protection of Women from Domestic Violence Act, 2005, the definition of
domestic violence is given under Section 3(a) which says that“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 abuse”.10 Sexual abuse mentioned under this definition
includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise
violates the dignity of woman11 , which in turn gives a chance to wives to initiate legal
proceedings. The drawback of this act is that it is more civil in nature than criminal. It does
not provide for a period of imprisonment. Rather it provides for compensation, monetary
gain, restraining and protective orders.

3. EFFECTS OF MARITAL RAPE

Marital Rape leaves scars in the life of a woman; they include physical, psychological and
mental health issues which hurt the emotional as well as the physical wellbeing of the women
in the long run. This section is widely bifurcated into psychological and health issues that a
woman may encounter during or after rape.

A. PSYCHOLOGICAL EFFECTS

Women who have had encounters relating to Marital rape have had cases of depression,
PTSD, fear, self-esteem issues, rape trauma syndrome and also being sexually unstable,
unavailable or dysfunctional.12 As soon as a woman is married, she is expected to fulfil her
husband’s sexual desire. The first time any female must have experienced this, it must come
as a shock to her that such a thing might be required without her consent. Any occurrences
after that must seem dreadful but numb to her but she knows there is no use denying or not
obeying her partner. The woman feels her family name will be tarnished. So, she feels this
pressure to maintain her family’s name.
10
The Protection of Women from Domestic Violence Act, 2005. (No 43 of 2005)., s3(a)
11
The Protection of Women from Domestic Violence Act, 2005. (No 43 of 2005)., s3(d)
12
Campbell, R., Dworkin, E. and Cabral, G., An ecological model of the impact of sexual assault on women's
mental health. Trauma, Violence, & Abuse, 2009

5
Rape Trauma Syndrome is the medical term given to the response that survivors have to rape
and it is the natural response of a psychologically healthy person to the trauma of rape 13. This
may be immediate or may occur after months or even years. The victims may feel humiliated
or degraded. The victims may also feel confused as to why this happened and how could they
not help themselves during the incident. Some victims may also blame themselves for being
weak not to stop it or for not wanting sexual intercourse as their husbands want them to 14. A
quintessential psychological aftereffect of rape also is self- blame due to which the victim
undergoes Post-Traumatic Stress Disorder because of the feeling of helplessness; not being
able to help yourself from being raped and self- blaming their self to justify it.

As this issue is not even looked at as a problem so, victims may feel shame and
embarrassment telling anyone about it. They feel that this is a taboo and talking about it with
other people will raise eyes and questions. In the case of Bodhisattwa Gautam v. Subhra
Chakraborty15, a criminal complaint was filed based on a consensual affair and a questionable
finding of rape due to failure to marry. Also, in a hearing for criminalizing marital rape,
Hon’ble Delhi High Court in 2018 said that: “Force is not a pre-condition for rape. If a man
puts his wife under financial constraint and says he will not give her money for household
and kids expenses unless she indulges in sex with him and she has to do it under threat.” 16 All
these situations put mental pressure on the victim and their children if they have any. This
can cause the children to have a severe mental breakdown or go into clinical depression. It,
therefore, becomes evident that such acts not only destroy a woman and her life but also have
severe impacts on the health of the children leading to a whirlpool effect.

B. HEALTH ISSUES

Although there is a provision provided in the Protection of Women from Domestic Violence
Act, 200517, but that accounts for only civil liability for sexual abuse. The psyche behind the
violent act can be to show dominance and to instil fear that if they do not get what they
desire, they may resort to violence.

13
Surjibhai Badaji Kalasva v. State of Gujarat, (2018) 59 (3) GLR 2498
14
Ann Burgess and Lynda Holmstrom, Rape Trauma Syndrome, American Journal of Psychiatry 981-986
(1974).
15
Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490.
16
https://www.financialexpress.com/india-news/delhi-hc-on-marital-rape-marriage-doesnt-mean-wife-always-
ready-for-physical-relations-with-her-husband/1248987/
17
Supra note 4

6
Most women suffer from perpetual soreness due to frequent rapes. This eventually leads to
having broken ribs, knife wounds, marks on their body due to the assault, black eyes. These
are just a few examples of what women may experience. Most victims have reported feeling
sore and bleeding from the vaginal tract. Bleeding occurs due to intense rupture of the
vagina18. Those forced to have anal sex can report bleeding, pain and irritability. They may
feel nausea if are somehow reminded of the incident of abuse. Amidst this unwanted
pregnancy can also be caused and this further causes mental and psychological pressure on
the victim19. Especially if the victim is between 15-18-year-old. This can call for premature
motherhood and can seriously impact the infant in question. Infertility can also be caused due
to vaginal rupture and this can cause the victim to never have children. This can seriously
deteriorate the victim for the future if they would ever actually want to start family planning.
They can be scarred for life. This can also drive the victims to take their own life. With the
notions revolving around marital rape, and the victim not being able to tell anyone anything
about the abuse, the victim may think of suicide as the only option.

4. MARITAL RAPE LAWS IN INDIA

Our country has advanced in almost all of the fields and there have been many amendments
and new legislations in our country, but till date marital rape is not considered to be an
offence in the country. The laws for protecting a woman in the institution of marriage does
not exist and the matters related to the same are left to the discretion of the court.

Under Section 375 of the Indian Penal code, has mentioned exception that – “Sexual
intercourse by a man on his own wife, the wife not being under 15 years of age, is not rape”20

Under the Indian Penal Code, the instances where punishment is awarded to husband under
marital rape is as follows:

i. When the age of wife is between 12-15 years, there can be imprisonment up to 2
years or fine or both;21

18
Supra note 12
19
Sarkar J. Mental health assessment of rape offenders, 55(3) Indian J Psychiatry 235‐243 (2013).
20
Supra Note 1
21
The Indian Penal Code (45 of 1860), s. 376(1).

7
 ii. When the age of wife is below 12 years, there must be imprisonment for term
which shall not be less than 7 years but can also extend to life and shall also be
liable to fine.22

iii. When the wife is judicially separated, there can be imprisonment up to 2 years
and fine23

iv. When the age of wife is above 15 years, the rape is not punishable.24

Hence, we can conclude that once a female crosses the age of 15 thereafter as a wife, she has
no legal protection if she is sexually harassed by her husband which is also a direct attack on
her human rights. It is very shocking because the Constitution has set 18 years as the legal
age for marriage whereas the law will protect only those females from sexual abuse which are
below 15 years of age and beyond this age limit there exists no remedy for the women.

Thus, it is depicted that the law which is meant for the safety of the victims, is not able to
protect those who are victimised and have gone through the trauma of marital rape because
according to the obsolete law, marriage in itself has given the consent to have intercourse at
any point of time after the marriage and the consent of the female is not needed. Violence
takes place with a woman due to which she has to submit herself to sexual activity and
further on, she gets hurt physically as well as emotionally. Our judiciary, as well as the
legislature, is still silent on the very fact that Is marriage a license to rape?

The Report of 42nd Law Commission25 talks about the removal of exception of Section 375
from the IPC because it is discriminatory towards women and is not in accordance to the law.
Even the Report of 172nd Law Commission26 was in favour of removing the exception to
Section 375 thereby making marital rape a criminal offence but more than 10 years have
passed and no action has been taken on the same issue.

5. CONSTITUTION OF INDIA ON MARITAL RAPE

This law which seemingly permits marital rape can be challenged on several grounds some of
which are enumerated herein. According to the Indian Constitution, all the laws which are

22
Ibid
23
The Indian Penal Code (45 of 1860), s. 376A.
24
Supra Note 3
25
Law Commission of India, “42nd Report on Indian Penal Code,1860” (June, 1971).
26
Law Commission of India, “172nd Report on Review of Rape Laws” (January, 1998).

8
passed by the legislature should follow the basic structure doctrine of the Constitution. If any
law is in contravention of this, it can be declared as unconstitutional by the Courts. Any law
or provision, if made, in favour of marital rape it would have to be in consonance with the
basic doctrine of the Constitution.

A. ARTICLE 14

Article 14 of the Indian Constitution 27 guarantees the Fundamental right of equality before
the law and equal protection of the laws within the territory of India. However, criminal law
is still silent on the discrimination that is faced by the victims of marital rape. The
Exception to Section 375 of IPC is a discriminatory law for the married women because
there is a new stratum of women created by this law who will not get protection from the
law if they face sexual harassment from their husbands which does not fulfil intelligible
differentia because it is arbitrary, artificial and evasive.

Section 375 does not include rape which is done by a husband to his wife. Protecting a
person from the ambit of Section 375 of the IPC based on the marital status is
discriminatory and it violates the Article 14 of the Indian Constitution. Rape or marital rape
is one and the same thing and the only difference is that the victim is married in the latter
case, and everything else is similar to what is in the rape. It is, in turn, difficult for a married
woman because she has to live her whole life with the perpetrator and they are dependent on
their husband. In the real sense, this exception encourages the husbands to commit forced
sexual intercourse because they know that the same is not punishable under the law. Hence,
marital rape is in clear violation to Article 14 of the Indian Constitution because equal
protection is not available to the female victims and it does not pass the twin test laid down
in Article 14 of the Constitution in terms of intelligible differentia and reasonable nexus.

B. ARTICLE 21

Article 21 of the Indian Constitution says that:

“[N]o person shall be deprived of his life or personal liberty except according to a
procedure established by law.”28

27
The Constitution of India, art. 14.
28
The Constitution of India, art. 21.

9
 In the case of Kharak Singh v. State of Uttar Pradesh 29, the Hon’ble Supreme Court held
that “[b]y the term “life” as here used something more is meant than mere animal
existence” There have been many cases where the Supreme Court has interpreted this article
and given a whole new shape to it. Under Article 21, there are many rights which are given
to the citizens which include the right to health, dignity, safe environment, sexual privacy,
human dignity, among others. In the case of State of Karnataka v. Krishnappa 30 , the
Hon’ble Supreme Court held that “[s]exual violence apart from being a dehumanizing act
is an unlawful intrusion of the right to privacy and sanctity of a female.”, it further held that
rape in itself is a serious blow to the self-esteem and dignity of the victim and it degrades
her, leaving behind a traumatic experience.

i. Right to Healthy and Dignified Life

In the case of C.E.S.C. Ltd. v. Subhash Chandra31, the Hon’ble Supreme Court held that
Right to Life also includes the Right to live a healthy and dignified life which is one of the
most important things to maintain the individuality of a citizen in the country 32. The
exemption to Section 375 is a violation to the right to the good health of a married woman
because marital rape causes emotional, psychological and physical problems to a woman and
puts her into depression, moreover in the case of forceful sexual intercourse, there always
exists a chance of transmission of STDs to the victim. There are many cases held by the
Hon’ble Supreme Court wherein it talks about rape as a crime against the society and also
violative of Article 21 of the Indian Constitution 33. Hence the exemption to Section 375 of
IPC is in clear violation to the woman’s right to live a healthy and dignified life because
sexual intercourse without the consent of the woman challenges her dignity, as well as her
health, therefore it violates the very basic structure of Article 21 and is unconstitutional.

ii. Right to Sexual Privacy

There are numerous cases in the Apex Court where it has been held that Right to Privacy is to
be protected constitutionally under Article 21. 34 Therefore, any type of forceful sexual act to a
woman is a violation of her privacy as it is her body and she has full right to consent to it and
29
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295.
30
State of Karnataka v. Krishnappa, (2000) 4 SCC 75 (India).
31
C.E.S.C. Ltd. v. Subhash Chandra, (1992) 1 SCC 441 (India).
32
See also Bandhua Mukti Morcha v. Union of India (1997) 10 SCC 549, Francis Coralie v. Union Territory of
Delhi 1981 AIR 746, 1981 SCR (2) 516
33
The Chairman, Railway Board v. Chandrima Das¸ AIR 2000 SC 988.
34
Govind v. State of Madhya Pradesh, AIR 1975 SC 1378.

10
protect it. If we talk about sexual privacy the same has been discussed by the Hon’ble
Supreme Court in the case of State of Maharashtra v. Madhkar Narayan 35 where it was held
that “[e]very woman is entitled to her sexual privacy and the same is not open to for any and
every person to violate her privacy”. However, the exemption of marital rape in the IPC is
violative to the right to sexual privacy of a married woman because nobody should force her
to have sexual intercourse against her will. Therefore, this exemption is in violation with the
Right to Privacy and therefore should be held unconstitutional.

iii. Right to Bodily Integrity

A woman is the owner of her own body and all the decisions regarding her bodily matters are
to be taken by her, without the interference of anybody, whether it is having sexual
intercourse or not; that is something which is to be decided by a woman and she has the right
to deny the same and nobody can force her; in the eyes of IPC if a woman denies sexual
intercourse and is forced into it, the same is termed as rape but if a married woman is forced
into sexual intercourse by her own husband, the same is not rape. Hence, the exemption to
Section 375 is a violation of a married woman’s right over her own body because marriage
does not mean that consent for having sexual intercourse is not needed.

Hence, the exemption to the Marital Rape under Section 375 of the Indian Penal Code is in
clear violation of Article 14 & 21 of the Indian Constitution. This exemption does not pass
the tests of “just, fair and reasonable law” and the test of reasonable classification because it
is not a fair law and is discriminatory towards a married woman and makes a distinction
towards them. This exemption is now obsolete and needs not to be present in the IPC, rather
India should also take strict measures to guard the rights of the married woman because there
is a large portion of women who are victims of marital rape but they do not have a law which
can support them; the only remedy available to them is the Section 498A of the IPC and the
Domestic Violence Act. The Supreme Court in the case of State of Maharashtra v. Madhukar
36
Narayan Mandikar held that “A prostitute had the right to refuse sexual intercourse if she
is being forced and the same is being done without her will; not withholding the same will
amount to Rape.” This is a vast problem, Indian judiciary in a plethora of cases have
criminalised almost all types of rapes but made an exemption to marital rape due to which a
large fraction of the females are victimised.

35
State of Maharashtra v. Madhkar Narayan, AIR 1991 SC 207.
36
Supra note 29

11
6. HUMAN PERSPECTIVE

A majority of people are in favour of not criminalizing marital rape. This creates the face of
public opinion and portrays the nation in an incorrigible light. These arguments have gained
momentum because most people in India are culturally active and believe that the laws that
defined India a thousand years ago are prevalent even today. Moreover, these arguments hold
no place in the current times because this exception is discriminatory. Here are some
arguments and their rebuttal.

A. ARGUMENTS AGAINST CRIMINALISING MARITAL RAPE

i. The Sanctity of Matrimonial Institution

The first argument regarding not criminalizing marital rape is that it would destroy the
sanctity of the marriage and this would furthermore destroy the family. The sacred bond that
a husband and a wife share would be broken and the meaning of marriage would be lost.
Criminalization of marital rape would mean that the state is entering the fine line between
home and law which creates a brick wall situation for the judiciary. Providing a legislation
for the same would mean that the state is crossing boundaries and going beyond its
jurisdiction. Marriage is between two people and any decision encroaching upon this line can
be met with opposition and harsh criticism.

ii. Marriage is Consent

Marriage is how two individuals enter into a legal union in their personal capacities.
Similarly, people have argued that if these individuals have entered this contract on their
volition then the woman has already consented to the marriage. If the marriage is not by her
own choice, the parents are responsible for matching the matrimonial relation and that is
considered as consent. The tradition of not asking for the woman’s consent is widely
prevalent. The consent of sexual relationship is thought to be given, to the husband, while
consenting to marriage or getting their marriage fixed by their parents. Arranged marriage
and forced marriage are two entirely different concepts. Arranged marriage is when both
parties are willing to get married upon meeting each other whereas forced marriage is when
either one of the parties is not consenting for marriage.

12
 iii. Cultural Boundaries

People have been taught to follow certain traditions, norms and values since they were
infants. These values have been etched into one’s brains and anything that may go beyond it
or does not match the frequency is termed to be taboo. These socio-cultural norms have
taught people that it is normal for a man to expect from his wife to fulfil his sexual needs.
Culture is what makes a nation.

iv. Pseudo Cases

A large majority of the people have also argued that if legislation is made on marital rape,
some wives will use this as a tact to get out of their marriages or to intimidate their partners
into doing anything, threatening to use the said legislation. In the case of Arnesh Kumar v.
State of Bihar, the Supreme Court held that [s]ection 498A is being used as a weapon by
disgruntled wives rather than a shield 37. It would then be the men who would come under the
scrutiny of the judiciary every second. This can create a ruckus in judicial proceedings as a
plethora of false cases can be filed which will delay the justice of more quintessential cases.
India still does not have the means to compensate for all the cases being delayed from years.

v. Pre-existing Legislation

The Protection of Women from Domestic Violence Act, 2005 is said to be the remedy for
marital rape. Arguments are made that if this legislation is already in force, there is no need
for a separate legislation for the same in the state. Marital rape can be considered under
Section 3(a) “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 abuse” 38. An
existing provision has been provided to foresee sexual and verbal abuse at the hands of the
husband.

B. ARGUMENTS IN FAVOUR OF CRIMINALISATION

i. Sanctity is Distorted

When a man has sexual intercourse with his wife without her consent, the sanctity of
matrimony has already been tainted. There is no option of going back and claiming that

37
Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 (India)
38
Supra note 10

13
marital rape can be exempted as it is crossing the boundaries of issues between a man and his
wife. Similarly in the High Court of Gujarat, in the case of Nimeshbhai Bharatbhai Desai v.
State of Gujarat39, it was held that the “[n]on-consensual act of marital rape violates the trust
and confidence within a marriage and the prevalence of marital rape in India is what has
damaged the institution of marriage”. When the concept of sanctity has been contradicted,
this argument becomes ethically flawed.

ii. Consent is Important

The Prohibition of Child Marriage Act, 2006, makes child marriage voidable rather than
void40. Parents can marry off their minor offspring to anyone and the children cannot take a
divorce or an annulment from their spouse until they are not minor anymore i.e. 18 years of
age. However, Section 375 of IPC, 1860 prohibits sexual intercourse of a man with wife less
than or of 15 years of age41. This, however, creates a loophole for those between the ages of
15 to 18 years of age. They have to co-inhabit with someone who may or may not force them
into sexual activities against their consent. This is an old tradition that pledges marriage is
consent. Being in the 21st century, these archaic laws can be changed according to the
advancement of society.

iii. Changing of Culture

Taking the mythology ‘Mahabharat’, it is believed that Yudhishthira bet his wife in a game of
‘chauras’ against Duryodhana. From ancient times, women have been objectified and have
been treated as a mere chattel. In marriages, the giving away of the bride is called
‘kanyadaan’ by the father to the husband. A girl is deemed to be foreign to her family
members and is believed to be owned by her husband. Old traditions like this should be
logically debated upon and it has to be understood that in this era, women have rights and
cannot be objectified. The cultural paradigm should be encouraged. This would help in
evolution or banishment of old traditions which seem irrelevant.

iv. A Criminal Liability

The Hindu Marriage Act and the Domestic Violence Act provides the women with a means
so that they can remove themselves from a threatening situation in turn for a civil liability.
People have argued that if there is an existing legislation for domestic violence which is
39
Nimeshbhai Bharatbhai Desai v. State of Gujarat, (2017) No. 26957
40
Supra note 9
41
Supra note 21

14
inclusive of ‘sexual abuse’, then why do the women of India need another legislation. The
Protection of Women Domestic Violence Act, 2005, only provides the offenders with civil
liability. Moreover, in civil liability, the perpetrator can get away with just providing
compensation to the victim. For this crime, the perpetrator needs to be imprisoned. This will
set an example for the rest of the society that this crime needs to be recognized and the state
will not turn a blind eye to such behaviour.

7. CONCLUSION

Justice Krishna Aiyar in the case Rafiq v. State of Uttar Pradesh said that “A Murderer kills
the body but a Rapist kills the soul”42. The State says this is not sacrosanct and it is the sole
business between a husband and wife; the state has already made laws relating to marriage
e.g. dowry, cheating, cruelty and divorce. Adding marital rape to the list would be nothing
but a huge success for India towards healthy mental development. The state also said that
criminalising marital rape would “destabilize the institution of marriage” 43 and it can be
easily used to “harass husbands”. When an act has already been done to taint the very
sacrosanctity of marriage, how would getting justice for the very same act destabilize the
marriage of the two individuals? The marriage has already been destabilized when the spouse
tried or did sexually abuse their partner. The second point of ‘harassing husbands’ can be met
with fast-track courts and their speedy trials. Setting up of various other fast-track courts all
over the country would help in solving this issue of false cases. But when the state itself is
rigid in not taking any steps in furtherance of marital rape, then it can take years to get the act
criminalised. There is a need to criminalise the same because these steps are necessary to be
taken so that the married woman can also use the law to address their grievances. Marital
rape will only be criminalised when the distinction between rape and marital rape is
understood.

Sensitisation of marital rape is the need of the hour. As a society, we are tremendously
cultural and put traditions on a pedestal. This ceases the need of discussing about taboos.
Turning a blind eye towards these taboos will not solve the problem itself; the problem still
looms. Marital rape cannot be put in force until the very own citizens of the nation are
familiar itself with the same. Even if marital rape becomes a crime, there would have to be a
42
Rafiq v. State of Uttar Pradesh, 1980 Cr. L.J. 1344 SC
43
Nimeshbhai Bharatbhai Desai v. State of Gujarat R/Criminal Misc. Application Nos. 26957, 24342 of 2017
and R/Special Criminal Application No. 7083 of 2017

15
thorough explanation of the said act/statute. Awareness of marital rape would have to be
made in order to achieve the zenith of justice. Various organisations have been committed
towards the same but until the citizens do not bring the attention of the judiciary to how grave
the issue already is, no big steps will be taken. Studies show that 70 per cent of women have
experienced physical and/or sexual violence from an intimate partner in their lifetime 44. This
goes against the very thing our forefathers fought for- fundamental rights. Article 14 and
Article 21 of the Indian Constitution talks about equality and freedom of life and liberty.
India needs to take a decision on the furtherance of marital rape. In a land where goddesses
are revered and worshipped, India can certainly not afford to stay silent on this issue any
further. Doing so would be a gross miscarriage of justice.

44
World Health Organization, Department of Reproductive Health and Research, London School of Hygiene
and Tropical Medicine, South African Medical Research Council (2013).
http://www.who.int/reproductivehealth/publications/violence/9789241564625/en/

16