Marital Rape: A Stigma of

163 years

Presented by- Rishabh Kumar Ambashta (BBA-LLB)

 What is Marital Rape?
• According to the National Crime Records Bureau’s ( NCRB) ‘crime in India’ 2019
report, about 70% women in India are victims of domestic violence.
• Marital Rape is sex by spouse with his better half without her assent or by compel
of danger. The Penal Law of India came in 1860 and now we are living in 2023
and our Penal Law has completed more than 100 years of existence but still the
law hasn’t changed yet.
• 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 as compared to a
rape victim because at least rape is an offence under IPC but marital rape is not an
offence.
 The game of exceptions!
• Non-Criminalization of marital rape in India emanates from Exception
II of Section 375.
• There are two exceptions under this Section the second exception of
Section 375 exempts unwilling sexual intercourse between a husband
and a wife over fifteen years of age from Section 375’s definition of
“rape” and thus immunizes such acts from prosecution.
• Which means that a husband can have sexual intercourse with his wife
without her consent if she is above the age of 15 years.
 Stats related to marital rape and marital abuse
• 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 pervious NFHS, which was out fiver 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 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 th 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 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
survey says.
 Where does it stand in The Islamic Legal System?

• In Islam sexual violation is regarded as a violation of moral and divine law. Rape
is considered a serious sexual crime in Islam.
• The solemnisation in Islam only allows a sexual intercourse which was initially
forbidden. After the solemnisation, Sexual intercourse becomes a mutual right
between the husband and wife, not only solely the husband alone. Solemnisation
does not legalize coercion, violence, and degrading and painful acts, either to men
or women.
• Sexual relations in a marriage that are done by mutual love and mutual enjoyment
are indeed halal, because it is in line with the teachings of the Quran and the
examples of the Prophet Mohammad.
• In the Quran, surahal-Baqarah[2]: 187 states that sexual relations between husband
and wife need to have the principle of reciprocity: the husband is the wife’s clothing
and the wife is the husband’s clothing. Marriage is a bond of love, affection and
responsibility between a husband and wife. Sexual relations between husband and
wife should be mutual and done in a good manner, and not by oppression, hatred,
violence, coercion and intimidation. Islam teaches strict respect for every human
being, especially to women. Islam also forbids injustice to anyone. If an action hurts
the wife, it automatically violates the principles, we are encouraged not to injure
ourselves, as well as other human beings.
• However, when sexual relations are performed by coercion and violence, it is
haram. Sexual intercourse carried out in a coercive and violent manner, does not
conform to the principles of Islamic Shariah in the Quran and the ways set by the
example of the Prophet Mohammad. Prophet Mohammad always emphasized a
solemnisation that allows for an intimate relationship between husband and wife is a
trust of Allah. Both parties of the marriage, although their relationship is already
considered, still need to hold and honor the trust of Allah, by practising virtuous
morals.
• So if we conclude this topic we can say that in Islam there is nothing conclusively
said about marital rape either in Quran or in Hadees. There are just somethings
which are said about an ideal relationship between husband and wife, about their
sexual relation that what are the rights of the husband and the wife over each
other. Quran also says that if sexual relation between the couple(husband and
wife) are done mutually then it is a halal in itself and if done without the mutual
consent of either of the spouse then it is a haram. In the world there is not a single
Islamic country which has criminalised marital rape completely. Qatar is the only
Islamic country in the world which has recognised marital rape as a crime and has
added some penal provisions for the wife such as they can make police complaint
about this incident. Even though Islam criticizes marital rape but no strong
examples have been set by any Islamic country only Qatar has tried to set some
examples for the rest of them
 Marital rape laws across the world
• The shift towards criminalising marital rape gained momentum across several
western countries in the 1970s after years as feminist discourse over women’s
autonomy and agency as well as the right to protect and seek action against sexual
violence of all forms gathered momentum.
• In 2019, there were nearly 150 countries that had criminalised marital rape in
some form or the other. While some countries follow the route of criminalising it
explicitly, In others, there are punishments for husbands using violence to have
intercourse with their wives even though marital rape is not explicitly understood
as rape. The countries who has explicitly decriminalised marital rape are:
Australia, Canada, France, Hong Kong, Rwanda, Namibia, Polynesian island and
others.
• Some countries have provisions for criminalising sexual violence by spouses but
do not specifically outlaw marital rape. In Kuwait, for instance, rape is punishable
by a maximum penalty of death. The law did not cover spousal rape. But in 2020,
Kuwaiti government passed a law against domestic violence which criminalised
"physical, psychological, sexual or financial mistreatment, whether in words or
actions" by family members and spouses. Malaysia also does not criminalise
marital rape but the husband can be penalised for using violence or force to have
intercourse with his wife. India, on the other hand, is among the list nations where
marital rape is “explicitly excluded”
• There are 32 countries where marital rape is not a criminal offence. These include
China, Bangladesh, Laos, Haiti, Myanmar, Mali, Senegal, Tajikistan, Afghanistan,
Malaysia, Egypt, Lebanon, Kuwait, Yemen, Singapore, Libya, Oman, and others.
Incidentally, among India’s neighbours, Bhutan has laws criminalising marital
rape.  Countries where marital rape is “explicitly excluded” include India, North
Korea, Iran, Bahrain, The Bahamas, Maldives, Myanmar, Nigeria, Oman and
others.
 Judicial decisions and there obiter dictum
• 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 was 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 cannot be changed for only
one woman. In the case of SUCHUTA SRIVASTAVA V. CHANDIGARH
ADMINISTRATION , 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 form
Domestic Violence Act, 2005.
• On August 7, 2021 Kerela HC delivered a judgment (Hrishikesh Sahoo vs State of
Karnataka) 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 court considered marital rape under
the amity of cruelty. We know that cruelty is a preestablished ground for divorce
in Hindu Marriage Act under section 13 and under section 27 if 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 judgement 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.
• 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 has supported the High Court judgment in an affidavit in
the apex court subsequently.
• Now all of this is on the hand of SC and the CJI DY Chandrachud
because we all know that if legislation would have cared about this
topic then they would have done something regarding to this but
because they have been remained silent for more than 75 years so now
judiciary is our only hope.
 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. 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 cannot
allow a man to have non-consensual sexual relation with a woman. Marriage does
not give right to a man to have sexual relation whenever he wants wherever he
wants.
• The consequences have been worst like women have suffered physical trauma
includes vaginal injuries and health issues STDs, miscarriages, HIV etc.
• In the judgment of HRISHIKESH SAHOO VS STATE OF KARNATAKA High
Court said that “Under the Code every other man indulging in offences against
woman is punished for those offences. But, when it comes to Section 375 of IPC
the exception springs. In my considered view, the expression is not progressive
but regressive, wherein a woman is treated as a subordinate to the husband, which
concept abhors equality. It is for this reason that several countries have made such
acts of the husband penal by terming it marital rape or spousal rape”.
• Marital rape is illegal in 50 American States, 3 Australian States, New Zealand,
Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and
Czechoslovakia and several others. In the United Kingdom, which the present
Code largely draws from, has also removed the exception pursuant to a judgment
rendered by the House of Lords in R v. R in the year 1991. Therefore, the Code
that was made by the rulers then, has itself abolished the exception given to
husbands, but not the Indians has done it yet.