ABSTRACT
Marital rape is an aspect of marriage that is solely not taken care of by the present existing
laws. This paper is an attempt to throw light on the aspect and the existing laws that can be
used as a defence by a partner in case of marital rape. There are many descending opinions on
the idea of marital law, few are that criminalisation of marital law would flaw the institution
of marriage and courts aren’t supposed to interfere within what goes around with a husband
and wife.
India is currently the seventh largest country in the world, and the pace at which the crime
rates are going up is highly alarming and embarrassing for a thriving, multi-cultural, large
and secular country like India. Marital rape is not only the chief concern in the field of
women’s rights at the moment, but it also violates several constitutional provisions at the
same time. Somebody rightly pointed out that a country’s growth and development can be
assessed by looking at the position and respect that it gives to its women.
In this paper, the researchers would like to give out the scope of marital rape in India, the
laws that it violates, a comparative study between the laws of other successful countries
compared to the laws in India, an analysis as to why hasn’t it been legalised yet and why it
should be legalised and a final note on suggestion and conclusion.
Chapter I
Introduction
“Her friends used to tell her it wasn’t rape if the man was her husband. She didn’t say
anything, but inside, she seethed. She wanted to take a knife to their faces” – F. H. Batacan
The idea of marital rape has always been under a limelight when it came to the situations of
India. The laws in India have extensively worked on rape, sexual assault and sexual abuse but
have turned a dead eye to the concept of marital rape. Not that marital rape doesn’t exist in
India, or its existence is close to negligible, but the central government apparently claims that
it would break the values of family system and act like a strong hit against the institution of
marriage. They also made a claim that the husbands will be harassed if so is given a statutory
position. Marital rape is generally regarded as the act of initiating sexual intercourse with
one’s spouse without the other spouse giving consent to do so. In many forward countries,
marital rape has been criminalised and thus, it holds the same legal consequences and
statutory position as rape to any other individual.
India is currently the seventh largest country in the world, and the pace at which the crime
rates are going up is highly alarming and embarrassing for a thriving, multi-cultural, large
and secular country like India. Marital rape is not only the chief concern in the field of
women’s rights at the moment, but it also violates several constitutional provisions at the
same time. Somebody rightly pointed out that a country’s growth and development can be
assessed by looking at the position and respect that it gives to its women.
Everyone in the world has their own perspective on whether marital rape should attract
punitive actions or it should just be treated as a part and parcel of marriage as a broad
institution. The question surrounding this matter is whether marital rape is evidently guarded
by the provisions of the Indian Constitution and the Indian Penal Code or the said provisions
deny its illegality.
The idea of marital rape generated international attention and momentum in the second half
of the 20th century. International bodies started working towards the idea of marital rape and
thus, to clear off the dark, hidden violence against married women. International covenants
and laws came into existence, thus, proving marital rape null and void, but some countries
still follow it as a part and parcel of the institution of marriage.
In ancient India, marital rape had legal and social backing which backed it up on the ground
that a spouse was entitled to the right of having sexual intercourse with his spouse. That is
rather a patriarchal claim in this context. Marital rape in India strongly depends on
nonexistent, sometimes interpretative verses in the Indian Constitution or the Indian Penal
Code and the varying understanding of Courts.
However, the central government alone cannot be blamed for such a heinous and gruesome
act against women is still in place, it is the very patriarchal and male dominated set up of the
Indian society that we live in. The very society gives its men the power to commit such
crimes and get away with it at the end of the day. Marital rape, in itself, is a part of domestic
violence. It is a means of forceful control of another individual’s thoughts, ideas, body and
mind. It invades an individual’s Right to Privacy and Right to live a dignified life.
In this paper, the researcher would like to give out the scope of marital rape in India, the laws
that it violates, a comparative study between the laws of other successful countries compared
to the laws in India, an analysis as to why hasn’t it been legalised yet and why it should be
legalised and a final note on suggestion and conclusion.
Research Objective-
Hypothesis:
Marital Rape is guarded by existing laws in India and should also be outrightly be considered
null and void
Research Question:
Should marital rape be criminalised?
Research Methodology:
The methodology adopted for the present research is doctrinal method. The doctrinal research
involves thorough scrutiny and analyses of prior laws, cases, articles, books and websites.
Chapter II
Laws guarding Marital Rape in India
2.1 The Indian Constitution
Not only is the Indian Constitution a safeguard against all the wrongs for the Indian citizens,
but it also clearly demarcates what’s right from what’s wrong. Along with rights, it also
crowns upon its citizens the responsibility that go hand in hand with it. Each citizen has a
responsibility towards the State and its fellow citizens.
Article 21: Right to Life and Right to Live with Human Dignity
The Right to Life is an all encompassing right. Every time an issue on human rights violation
crops up, the Right to Life comes to play an integral role in that scenario. The Article 21
guarantees each and every citizen a Right to a healthy and a decent life without any kind of
encroachment from the State or any other party. Ones this right is violated, the victim can
approach the Court to seek Constitutional remedies against the violation under Article 32 of
the Indian constitution.
In the celebrated case Francis Coralie Mullin v The Administrator, the Union Territory of
Delh1i, the Honourable Supreme Court of India stated that one cannot arrive at a perfect
definition of the Right to Life. Until that, the Courts can give varied interpretations to the
Right and thus further explore the ambit of the right. It might also mean that an individual can
enjoy the right to a decent and dignified life. Even prisoners or detenus have such a right.
They have all the access to their human rights, except those that they cannot enjoy being
prisoners.
In another landmark case, Chairman, Railway Board & Others v Chandrima Das & Others2,
a foreign woman, Smt Hanuffa Khatoon was raped in the Yatri Nivas by four men belonging
to the Railway Departement and thus later raped again by a member of the Railway
department where she was gagged and abused. Hearing her hue and cry, the people from the
rented flat had rescued her and she was given Rs10 Lacs as compensation from the Court.
The Supreme Court in this regard pointed out that rape is not only a crime against the victim
individual but it is also a crime against the society at large. Rape disturbs the entire society as
well as the victim equally.
1
1981 AIR 746
2
AIR 2000 SC 988
Right to Privacy
The Right to Privacy is a recent judicial development where the Court realised that no
individual should be subjected to encroachment to their personal space and privacy. More
than 150 national Constitutions give the Right to Privacy a legal standing in their respective
countries. In the celebrated case of Justice K S Puttaswamy (Retd) vs Union of India, the
Honourable Supreme Court of India unanimously upheld the Right to privacy as an important
and intrinsic part of the Article 21- Right to Life and Personal Liberty.
This could also be interpreted in favour of marital rape. A woman is entitled to the Right to
Privacy. No one can encroach upon or invade her Right to privacy. More so, she is entitled to
the Right to her sexual privacy. No man or woman can invade into another man or woman’s
sexual privacy. It is something that isn’t open for anyone to violate or infringe her right
according to their wish.
In the landmark case of Vishaka vs State of Rajasthan3, the same was observed. It is a
woman’s personal right. No one can infringe her Article 21 against her wishes. In the case of
State of Maharashtra vs Madhakar Narayan, the Supreme Court held that a woman’s sexual
privacy is not open to all according to their wishes. Its her own personal right and decision
and it should be respected accordingly.
2.2 Indian Penal Code, 1860
The Indian Penal Code, 1860 is the main criminal code in India. It is a comprehensive act
which is divided into twenty tree chapters and five hundred and eleven sections. The Indian
Penal Code lays down crimes along side of its punishments. However, it doesn’t give out any
kind of procedures because that arena is dictated by the Code of Criminal Procedure. The
following are the relevant sections of the IPC, 1860 in this regard:
Section 319 – Hurt Whoever causes bodily pain, disease or infirmity to any person is said to
cause hurt.
Section 320- Grievous Hurt The following kinds of hurt only are designated as "grievous":-
3
(1997) six SCC 241
First- Emasculation.
Secondly- Permanent privation of the sight of either eye.
Thirdly- Permanent privation of the hearing of either ear,
Fourthly- Privation of any member or joint.
Fifthly- Destruction or permanent impairing of the powers of any member or joint.
Sixthly- Permanent disfiguration of the head or face.
Seventhly- Fracture or dislocation of a bone or tooth.
Eighthly- 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.
Section 321- Voluntarily causing hurt Whoever does any act with the intention of thereby
causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any
person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt".
Section 322- Voluntarily causing grievous hurt Whoever voluntarily causes hurt, if the hurt
which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt
which he causes grievous hurt, is said "voluntarily to cause grievous hurt."
Section 339- Wrongful restraint Whoever voluntarily obstructs any person so as to prevent that
person from proceeding in any direction in which that person has a right to proceed, is said
wrongfully to restrain that person.
Section 349- Force A person is said to use force to another if he causes motion, change of
motion, or cessation of motion to that other, or if he causes to any substance such motion, or
change of motion, or cessation of motion as brings that substance into contact that other's
body, or with anything which that other is wearing or carrying, or with anything so situated
that such contact affects that other's sense of feeling: Provided that the person causing the
motion, or change of motion, or cessation of motion, causes that motion, change of motion, or
cessation of motion in one of the three ways hereinafter described.
Section 351- Assault Whoever makes any gesture, or any preparation intending or knowing.
it to be likely that such gesture or preparation will cause any person present to apprehend that
he who makes that gesture or preparation is about to use criminal force to that person, is said
to commit an assault.
Section 375- 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, by reason 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.
Chapter III
Status of marital rape in other countries
3.1 United Nations of America
Marital rape or spousal rape is criminalised in all the fifty states in the Unites States of
America. However, not all the states in the United States of America treat marital rape and
rape the same. Some states like Ohio, Michigan, Nevada treat them differently. But anyhow,
marital rape is a crime under some section or the other. In no state is it legal in accordance
with the existing laws.
For instance, in Maryland, two individuals who have separated paths by way of judicial
separation or divorce are totally strangers to one another. Any coerced sexual act between the
two will be considered no different than rape. This part of the US law is quite similar to that
of India. The same law applies to the Indian legal scenario. However, the twist takes place
when two spouses are residing together, if one of them coerces, threatens or uses force on the
other, without the consent of the other spouse, then a valid prosecution can take place.
In Mississippi, a similar situation exists. A prosecution can come into existence only if the
rapist and the victim are married and living together at the time of the incident and the rapist
performs penetration against the victim’s will. However, this law would exclude a situation
where the victim is incapable of controlling their conduct, under drugs or narcotic influence
or any other substance the victim is subjected to which numbs down their sense and presence
of mind.
In Nevada, marriage can only be a defence in a situation where there was no threat or force.
In a scenario where the victim was subjected to any kind of force or threat, then the defence
of marriage is to no avail.
However, in Oklahoma, a person cannot charge their spouse for rape if they were compelled
to submit under the influence of narcotics and drugs.
Laws in the USA vary according to the state. In some places marital rape is considered null
and void by law in all its forms, in other states the laws have missed out the influence of
drugs and narcotics and some other aspects which have not yet come to light.
3.2 United Kingdom
In the United Kingdom, all kinds of sexual offences are dealt with under the Sexual Offences
Act, 2003. In the UK too, marital rape is expressly considered a crime. Section 1 of the same
talks about rape. A person is said to have committed the crime of rape if the accused
penetrates his penis into the vagina, anus or mouth of the person without their consent and on
purpose. It doesn’t matter whether the victim resides with the accused or not, knows the
accused or not, or is or was married to the accused or not. What matters is the element of
consent. If the victim hasn’t consented to the penetration, then it will be considered as rape.
A landmark case in this regard is R v R4. In this case, the House of Lords held that it is
possible under the English Criminal Law the commit rape on his own wife. The defendant,
that is the husband, claimed that he can commit rape on his wife since the wife gave him
irrevocable consent by the contract of marriage. Thus, as a reaction to this, both the House of
Lords and the Court of Appeal held that there is no exception of marital rape under the
English law.
COUNTER ARGUMENTS:
Criminalising marital rape would be an attack to the holy sacrament of marriage
Women can misuse the defence of marital rape with every disagreement they face
with their husband
Criminalising marital rape for women is too woman centric
Marital rape is okay as long as its between the husband and wife
Courts cannot interfere in a personal matter like marriage
CHAPTER IV ANALYSIS
As one can deduce from the words given above, there are several sections in the Indian Penal
Code which could be used to safeguard a woman from marital rape. There are several
sections from the IPC which are violated when ideas like Marital Rape aren’t taken seriously
in a marriage. However, countering the counter arguments, the idea of marital rape is one that
tarnishes the idea of marriage because it is a woman’s own husband that forces her for sexual
encounter, whom she trusts and has faith to protect her. This causes more of a trauma than
being raped by a total stranger.
As one can see that the country of England has made much progress in accepting marital rape
as a flaw and making laws towards it. Not far behind is the United States of America, which
has banned marital rape in few states now.
Chapter V
4
R v R [1991] UKHL 12
Conclusion
Taking into account the laws of other countries in comparison to the Indian nation, India is
far behind from taking a step to create an exclusive law for MARITAL RAPE at the moment.
Till a new law comes into being, the provisions from IPC and the Indian Constitution could
be used as a defence. However, in the changing times every law needs to go through a change
as one is discovering new things everyday and human mind is constantly evolving. Thus, till
a new law is in place, one can use the existing provisions. After a scrutinising study one can
bring a new law in place for Marital Rape or add relevant sections to IPC or the Domestic
Violence Act.
Countries like the United Kingdom have taken relevant steps to recognise this social evil and
are constantly making new laws in order to fight this kind of an atrocity against woman.
However, there have been many counter arguments in this line of thoughts namely, that
curbing marital rape would be an attack on the institution of marriage and thus would be
constantly misused. This is the reason why the researcher suggests that the law making
authorities may take time to analyse and scrutinise the consequences and results rather than
haphazardly put a law in place. Marital rape, without a doubt, is a violation of a woman’s
right to dignity and wellbeing and thus, for a progressive country to thrive, a law should be
brought into place.
REFERENCES
Yllo, Kersti and Gabriella Torres, “Marital Rape: Consent, Marriage and Social
Change in Global Context” , Oxford University Press, 201 6
Finkelhor, David and Kersti Yllo, “License to Rape”, Simon and Schuster, 1987
Arriaga, Ximena B. And Stuart Oskamp, “Violence in intimate relationships”, SAGE
Publications, 1999
