Dr.

Ram Manohar Lohiya National Law

University, Lucknow

FINAL PROJECT
INDIAN PENAL CODE

TOPIC: Marital Rape – Current Legal Framework and need for change

SUBMITTED TO: SUBMITTED BY:

Mr. Malay Pandey Yawar Mukhtar ,Sakshi Singh, Pragya Yadav

Assistant Professor (Law) Vth Semester

Dr.RMLNLU Dr.RMLNLU
 ACKNOWLEGEMENT

I owe gratitude to many people who helped me in the successful completion of this project. My
deepest gratitude to Mr. Malay Pandey without whose help and support this project would not
have been completed. I would also like to thank Dr. Ram Manohar Lohiya National Law
University for giving me an opportunity to work on such an interesting topic. Last but not the
least i would also like to thank my friends for helping me in collecting the appropriate material
and also correcting my mistakes. They were the ones without whom this project would have been
a distant reality. This section cannot be complete without acknowledging Dr. Madhu Limaye
Library (RMLNLU) for providing all useful information that helped me throughout my research.
 INTRODUCTION

Rape per se is an offence against woman, violating her dignity and self-respect and when it

occurs within the four-walls of a matrimonial home, it reduces the woman to the status of an

object used merely for sexual gratification.There is an immediate need for a distinct law

onmarital/spousal rape in India, which should be at par with the accepted international norms on

this issue. Rape within marriage is a concept that agonizes the wife to the very core. The dread

ofhaving to face it and still have to silently suffer through it is an unbearable thought that affects

the psyche of the women. This self-enforced silence has a very detrimental effect on the

emotional, psychological and mental stability of women. However, this silence is not exactly

self-enforced.

The lack of laws and abundant social stigmas against the act of marital rape is one of the primary

reasons that the evil of marital rape is still hidden behind the sacrosanct of marriage. The woman

has been given the right to fight for protection when the violators are outside entities, but when

the perpetrator of her bodily integrity is her own husband, who she married with all the pomp

and show, such protection is withdrawn by the legislators. In light of this, the idea that a woman

(wife) has to have sex with her husband irrespective of her will, consent, health, etc, is absolutely

unacceptable to a civilized society. Therefore there is no justification or applicability of the

notion of marital exemption in the current times. It is true that mere criminalization of marital

rape in India will not end the problem, but it sure is an important step towards changing women’s

experience of sexual violence in a marriage. It is high time that the concept of “rape is rape,

irrespective of the relationship between the victim and the perpetrator” is recognized by the law

and put strictly to force.

Marital Rape – An Understanding

When one mentions the word rape, the tendency is to think of someone who is a stranger, a
malicious person. Usually one does not think of rapes in the context of marriage. Women
themselves find it difficult to believe that a husband can rape his wife. After all, how can a man
be accused of rape if he is availing his conjugal rights. It is indicative that a woman has no right
to her own body, and her will is subject to that of her husband. Though marital rape is the most
common and repugnant form of masochism in the Indian society, it is well hidden behind the
iron curtain of marriage. While the legal definition varies, marital rape can be defined as any
unwanted intercourse or penetration (vaginal, anal, or oral) obtained by force, threat of force, or
when the wife is unable to consent. Despite the prevalence of marital rape, this problem has
received relatively little attention from social scientists, practitioners, the criminal justice system,
and larger society as a whole.

The word ‘rape’ has been derived from the term ‘rapio’, which means ‘to seize’. Rape is
therefore, forcible seizure, or the ravishment of a woman without her consent, by force, fear or
fraud. It involves coercive, non consensual sexual intercourse with a woman. Rape can be
viewed as an act of violence of the private person of a woman, an outrage by all means. It is the
ultimate violation of the self of a woman. The Supreme Court of India has aptly described it as
‘deathless shame and the gravest crime against human dignity’.Rape is not merely a physical
assault, but is destructive of the whole persona of the victim. The law did not conceptualize it as
an offence against the person of the woman, one that destroys her freedom; rather, it conceived
rape as an instrument for protecting a man’s property from the sexual aggressions of other men.
Therefore the act of rape within marriage was not recognized as an offence as woman was
considered the property of the husband, and a man could not be perceived to violate his own
property.Marital rape is particularly complicated because the complex, personal nature of marital
relationships makes it hard for the victim to even see herself as a victim, let alone reporting the
offending act to the authorities, which is why Marital Rape is one of the highly under-reported
violent crimes. Even the women who do consider themselves victims are disinclined to approach
the authorities because they are financially dependent upon their husbands, and reporting the
matter could very well result in withdrawal of financial support leaving them and their children
without food and shelter1.

Today there are many countries that have either enacted marital rape laws, repealed marital rape
exceptions or have laws that do not distinguish between marital rape and ordinary rape.These
countries include: Albania, Algeria, Australia, Belgium, Canada, China, Denmark, France,
Germany, Hong Kong, Ireland, Italy, Japan, Mauritania, New Zealand, Norway, the Philippines,
Scotland, South Africa, Sweden, Taiwan, Tunisia, the United Kingdom, the United States, and
recently, Indonesia. Turkey criminalized marital rape in 2005, Mauritius and Thailand did so in
2007. The criminalization of marital rape in these countries both in Asia and around the world
indicates that marital rape is now recognized as a violation of human rights. In 2006, it was
estimated that marital rape is an offence punished under the criminal law in at least 100 countries
and India is not one of them. Even though marital rape is prevalent in India, it is hidden behind
the sacrosanct curtains of marriage.

There have been plenty of legislations and enactments passed in India in regard to violence
against woman in her own house like laws against dowry, cruelty, domestic violence and female
infanticide. However the biggest and the most shameful wrong within a marriage, where a
husband forces himself upon his wife thinking that it is his nuptial right to have sex with his wife
(with or without her consent), ‘marital rape’, has failed to gain recognition as a crime in the eyes
of policy makers. Women who are raped by their husbands are likely to be raped many times.
They experience not only vaginal rape, but also oral and anal rape. Husbands often rape their
wives when they are asleep, or use coercion, verbal threats, physical violence, or weapons to
force their wives into having non-consensual sex with them 2.Marital rape is a serious problem
that millions of women worldwide have to suffer and face such abuse on a day-to-day basis. It is
difficult to obtain accurate data and rape and violence against women within the family, in part
because women are reluctant to report incidents, as women raped by their husbands may hesitate
to report because of family loyalty, fear of their abuser’s retribution, inability to leave the
relationship, safeguarding the future of their children, or the fact that there are no stringent laws
in force protecting the victims of marital rape. Despite underreporting, marital rape
unquestionably has an enormous impact on the lives of women who experience it. By way of
1
Bodhisattwa Gautam v. Subhra Chakraborty AIR 1996 SC 922
2
http://www.taasa.org/library/pdfs/TAASALibrary104.pdf
comparison, the best available statistics on marital rape in the United States suggest that one out
of every seven or eight married women has been subjected to rape or attempted rape by her
husband.According to another estimate, approximately 10% to 14% of the married women
experience rape withinmarriage.3Marital rape is preferably the worst kind of rape, because the
perpetrator is someone the woman knows, trusts and loves and that makes it the worst betrayal
and harder to deal with.

MARITAL EXEMPTION – ORIGIN AND RATIONALE

Throughout the history of most societies, it has been acceptable for men to force their wives to
have sex against their will. The traditional definition of rape in most countries was ‘sexual
intercourse with a female not his wife without her consent’. This provided the husband with an
exemption from prosecution for raping their wives—“a license to rape”. The foundation of this
an exemption can be traced back to statements made by Sir Matthew Hale, Chief Justice in 17th
Century England. Lord Hale wrote that: the husband cannot be guilty of rape committed by
himself upon his lawful wife, for by their mutual consent and contract, the wife hath given up
herself this kind unto herhusband which she cannot retract’.

It is very surprising to note that Lord Hale did not offer any argument, case law or legal basis to
support his assertion. He asserted that, upon marriage, the wife automatically hands over her
legal person to the husband and consents to all sexual acts, which cannot be retracted at any later
date for no reason whatsoever. He introduced within the marriage, a notion of ‘implied consent’
that started at the time of the marriage and continued for the entire course of the marriage, and
such consent was deemed irrevocable by Lord Hale. This established that once married, a woman
does not have the right to refuse sex with her husband. Due to construction of sex as a woman’s
duty within a marriage, there is always a presumption of her consent. “A female slave has an
admitted right, and is considered under a moral obligation, to refuse her master the last
familiarity. Not so the wife. However brutal a tyrant she may unfortunately be chained to... he

3
Diana. E. H. Russell, Rape in Marriage, Indiana University Press, Bloomington, 1990. 7 Hale, Matthew, 1 History
of the Pleas of the Crown, p. 629. (1736, London Professional Books, 1972) .
can claim from her and enforce the lowest degradation of human being, that of being made the
instrument of an animal function contrary to her inclinations”.As long back as in 1869, John
Stuart Mill observed that marital rape is never welcome to women for it represents a surrender of
dignity so absolute in nature, that it lowers the stature of the wife beneath that of a slave. The
basic premise for this assumption lies in the fiction that the wife Iis considered to have given her
irrevocable consent to sexual intercourse to the husband at the time of the marriage and hence the
husband cannot be held guilty of rape, which he may commit upon his wife.

The tenets of the marital rape exemption were based on the notion of ‘irrevocable implied
consent’. As per this notion, once a woman is married to a man, there is believed to be
impliedconsent to sexual intercourse, which is irrevocable in nature.The other traditional
justifications for the marital exemption were the common law doctrines that a woman was the
property of her husband and that the legal existence of the woman was ‘incorporated and
consolidated into that of a husband’.

Marital Rape and Laws in India

Though we have advanced in every possible field, marital rape is not considered as an offence in
India. Despite amendments, law commissions and new legislations, one of the most humiliating
and debilitating acts is not an offence in India. A look at the options a woman has to protect
herself in a marriage, tells us that the legislations have been either non-existent or obscure and
everything has just depended on the interpretation by Courts. The final version of section 375 of
the Indian Penal Code, which emerged after deliberations in the Select Committee, is a
crystallized form of Clause 359 of the Macaulay’s Draft Penal Code. Section 37510, the
provision of rape in the Indian Penal Code (IPC), has echoing very archaic sentiments,
mentioned as its exception clause- “Sexual intercourse by man with his own wife, the wife not
being under 15 years of age, is not rape.”

The section 375 of the Indian Penal Code (45 of 1860) reads: —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.

Explanation

Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception. —Sexual intercourse by a man with his own wife, the wife not being under fifteen
years of age, is not rape.

Section 376 of IPC provides punishment for rape. According to the section, the rapist should be
punished with imprisonment of either description for a term which shall not be less than 7 years
but which may extend to life or for a term extending up to 10 years and shall also be liable to
fine unless the woman raped is his own wife, and is not under 12 years of age, in which case, he
shall be punished with imprisonment of either description for a term which may extend to 2 years
with fine or with both. This section in dealing with sexual assault, in a very narrow purview lays
down that, an offence of rape within marital bonds stands only if the wife be less than 12 years of
age, if she be between 12 to 15 years, an offence is committed, however, less serious, attracting
milder punishment. Once, the age crosses 15, there is no legal protection accorded to the wife, in
direct contravention of human rights regulations. How can the same law provide for the legal age
of consent for marriage to be 18 while protecting form sexual abuse, only those up to the age of
15? Beyond the age of 15, there is no remedy the woman has. The Indian Penal Code was
amended in 1983 to make way for the criminalization of spousal rape during the period of
judicial separation. As per the Indian Penal Code, the instances wherein the husband can be
criminally prosecuted for an offence of marital rape are as under:

1. When the wife is between 12 – 15 years of age, offence punishable with imprisonment

upto 2 years or fine, or both;

2. When the wife is below 12 years of age, offence punishable with imprisonment of either

description for a term which shall not be less than 7 years but which may extend to life or

for a term extending up to 10 years and shall also be liable to fine.

3. Rape of a judicially separated wife, offence punishable with imprisonment upto 2 years

and fine;

4. Rape of wife of above 15 years in age is not punishable.

In 2005, the Protection of Women from Domestic Violence Act, 2005 was passed which

although did not consider marital rape as a crime, did consider it as a form of domestic
violence.Under this Act, if a woman has undergone marital rape, she can go to the court and
obtain judicial separation from her husband.4 This is only a piecemeal legislation and much more
needs to be done by the Parliament in regard to marital rape. Marital rape reflects the perversity
of an individual. It is not only the rape of a woman’s body but a rape of her love and trust as
well. Being subject to sexual violence by her own husband envelopes her in a sense of insecurity
and fear. Her human rights are sacrificed at the altar of marriage. The Indian Penal Code has
dealt with this form of rape in a very piecemeal manner. Various provisions of the IPC relating to
sexuality reinforce not only Victorian morality but also the non-agency of women.5

Thus, it is visible that the law which is considered as the saviour of the victimized is inadequate
and insufficient to protect the interests of those afflicted with the ill of marital rape. The basic
4
The Protection of Women from Domestic Violence Act, 2005, Section 3 Explanation 1 (ii).
5
Kumari, Ved, “Gender Analysis of the Indian Penal Code in Engendering Law: Essays in the honour of Lotika
Sarkar” ( Amita Dhanda & Archana Parashar eds.) , p. 143.
argument which is advanced in favour of these so-called `laws’ is that consent to marry in itself
encompasses a consent to engage into sexual activity. But, an implied consent to engage into
sexual activity does not mean consent to being inflicted with sexual violence. It is often felt that
as in sadomasochistic sexual acts, in marital rape women are presumed to have consented to the
violence. However Rape and sex cannot be distinguished on the basis of violence alone.
Violence creates a sense of fear and insecurity and this causes the women to submit to sex and
this cannot be construed as consenting to sex. This fear may be compounded by her feeling of
not having fulfilled her husband’s desire. The distinction between consent and non-consent in
contradistinction is fundamental to criminal law. The very definition of rape (section 375 of IPC)
demands change. The narrow definition has been criticized by Indian and international women’s
and children organizations, who insist that including oral sex, sodomy and penetration by foreign
objects within the meaning of rape would not have been inconsistent with nay constitutional
provisions, natural justice or equity.

Even international law now says that rape may be accepted a s the “sexual penetration, not just
penal penetration, but also threatening, forceful, coercive use of force against the victim, or the
penetration by any object, however slight.” Article 2 of the Declaration of the Elimination of
Violence against Women includes marital rape explicitly in the definition of violence against
women. Emphasis on these provisions is not meant to tantalize, but to give the victim and not the

criminal, the benefit of doubt. Women so far have had recourse only to section 498-A of the IPC,
dealing with cruelty,to protect themselves against “perverse sexual conduct by the husband”.
But, where is thestandard of measure or interpretation for the courts, of ‘perversion’ or
‘unnatural’, the definitions within intimate spousal relations? Is excessive demand for sex
perverse? Isn’t consent a sine quanon? Is marriage a license to rape? There is no answer, because
the judiciary and the legislature have been silent.

42nd LAW COMMISSION REPORT

The Law Commission of India in its 42nd report put forward the necessity of excluding marital
rape from the ambit of Section 375. In their words naturally the prosecutions for this offence are
very rare. We think it would be desirable to take this offence altogether out of the ambit of
section 375 and not call it rape even in technical sense. The punishment for this offence may also
be provided in a separate Section.6 Many women’s organizations and the National Commission
for Women have been demanding the deletion of the exception clause in Section 375 of the
Indian Penal Code whichstates that “sexual intercourse by a man with his own wife, the wife not
being under fifteen years age, is not rape”. However, the Task Force on Women and Children
set up by the Woman and Child Department of the Government of India took the view that there
should be wider debate on this issue. The mandate of the Task Force was to review all existing
legislation and schemes pertaining to women. Of the four recommendations made by the Task
Force vis-à-vis rape under the Indian Penal Code, the most significant pertains to the definition
of rape. It took the position that the definition of rape ought to be broadened to include all forms
of sexual abuse. As per the recommendation, the Law Commission’s proposed definition of
“sexual assault” could be adopted in place of the existing definition of rape in Section 375 IPC as
“it is wide, comprehensive and acceptable”. However, like the Law Commission, the Task Force
also stopped short of recommending the inclusion of marital rape in the new definition.

172nd LAW COMMISSION REPORT

Even the 172nd Law Commission report 7which was passed in March 2000 had made the
following recommendations for substantial change in the law with regard to rape.

a. ‘Rape’ should be replaced by the term ‘sexual assault’.

b. ‘Sexual intercourse as contained in section 375 of IPC should include all Forms of

penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal.

c. In the light of Sakshi v. Union of India and Others8 , ‘sexual assault on any part of the

body should be construed as rape.

d. Rape laws should be made gender neutral as custodial rape of young boys has been

neglected by law.
6
http://www.siu.edu.in/Research/pdf/Shaila_Daware.pdf.

.
7
172nd report of Law Commission of India on Review of Rape Laws, March 2000, para 3.1.2.1

8
21 2004 (5) SCC 518.
e. A new offence, namely section 376E with the title ‘unlawful sexual conduct’ should be

created.

f. Section 509 of the IPC was also sought to be amended, providing higher punishment

where the offence set out in the said section is committed with sexual intent.

g. Marital rape: explanation (2) of section 375 of IPC should be deleted. Forced sexual

intercourse by a husband with his wife should be treated equally as an offence just as any

physical violence by a husband against the wife is treated as an offence. On the same

reasoning, section 376 A was to be deleted.

h. Under the Indian Evidence Act (IEA), when alleged that a victim consented to the sexual

act and it is denied, the court shall presume it to be so.

Notwithstanding the 172nd Report of the Law Commission of India submitted over nine years
ago

to the Government of India urging that Parliament should replace the present definition of rape

under Section 376 IPC with a broader definition of sexual assault, which is both age and gender

neutral, nothing has been done till date.

CONSTITUTION OF INDIA viz-a-viz MARITAL EXEMPTION TO RAPE

The Constitution of a country is the text that reflects the soul of the nation. The Indian
Constitution organizes and controls power, ensures human rights, balances the competing claims
of social and individual interests, mirrors the cultures and experiences of the country and
operates as a vehicle for national progress and unity.9As per the Indian constitution, every law
that is passed in the country has to be in conformation with the principles and ideas enshrined in
the Constitution of India. Any law that fails to meet this standard is considered ultra vires and is
liable to be struck down by the Courts and declared unconstitutional. Now it will be seen as to
how the doctrine of marital exemption to rape fails to meet the standard of conformity with the
provisions of Article 14 and Article 21 of the Constitution of India.

EQUAL PROTECTION OF THE LAW

Article 14 guarantees a fundamental right of equality before the law and equal protection of laws
to every citizen of India.10 However, Article 14 does not call for every individual to be treated
equally in every circumstance but requires that the equals within a society are not treated
unequally and that the unequals of the society are not treated equally. The two requisites of a
valid classification were laid down by the Supreme Court, as early as in 1952: -

a. The classification must be founded on an intelligible differentia which distinguishes those

that are grouped together from others; and

b. The differentia must have a rational relation to the object sought to be achieved by the

legislation.11

Thus any law which makes a classification which is unnecessary or irrelevant to the purposes of
the legislation is deemed to be outside the framework of the Constitution. As to what is
reasonable, would always depend upon what the judges think and with every new generation of
judges, would emerge a new understanding of law and reasonability thus making the
Constitution a living document. It is essential to prevent the stereotyping based on gender in
order to curtail the gender biased differential treatment. Therefore it is important when applying
the test of equality, that care be taken so that the stereotyping enjoined by the patriarchal
ideology does not predeterminate what is reasonable classification. Section 375 of the IPC

9
Roy, Sudhanshu & Jain, Iti, “Criminalizing Marital Rape in India: A Constitutional Perspective”, Criminal Law
Journal, Apr ,2008, p. 81-92.
10
The Constitution of India, Article 14..
11
State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75, 80..
criminalises the offence of rape and protects a woman against forceful sexual intercourse against
her will and without her consent.

Thereby the section grants protection to women against criminal assaults on the bodily autonomy
and depicts the State’s interest in prosecuting those who violate this bodily autonomy. Therefore
it is right to say that Section 375 of the IPC seeks to protect the woman’s right of choice as
autonomous individual also capable of self-expression and also regards rape as a crime of
violence which disregards all such rights granted to the individual. However, ironically, Section
375 of the IPC makes a classification in terms of an exemption that does not regard a forceful
sexual intercourse within a marriage as rape. The exemption withdraws the protection of Section
375 of the IPC from a married woman on the basis of her marital status. The classification and
differential treatment of married women rests on the assumption that married women, unlike any
other persons, have no interest in receiving protection from the State against violent and sexual
assault. The assumption further stems from the fact that in a marriage, the wife is presumed to
have given an irrevocable consent to sexual relationships with her husband. It is submitted that
such an assumption is wrong, irrational and not based on an intelligible differentia.

Married women, exactly like men and unmarried women need protection of the law in their
private spheres. While the rest of the section 375 of the IPC is interested in protecting the right of
a victim from the crime of rape, such a right is withdrawn on marriage and the focus of the law
instead shifts to protecting, the perpetrator of the crime of rape. It takes away a woman’s right of
choice and indeed effectively deprives her of bodily autonomy and her personhood. Thus the
classification is unnecessary, unintelligible and violates the mandate of Article 14. Withdrawing
the protection of Section 375 of the IPC from the victims of the crime of rape solely on the basis
of their marital status is irrelevant for the purposes of legislation and thus violates the test of
classification under Article 14.

RIGHT TO LIFE AND PERSONAL LIBERTY

Article 21 of the Indian Constitution enshrines in it the right to life and personal liberty.Article
21 although couched in negative language confers on all persons the fundamental right of life
and personal liberty. Post the case of Maneka Gandhi v. Union of India 12it has become the
source of all forms of right aimed at protection of human life and liberty. The meaning of the
term ‘life’, has thus expanded, and can be appropriately summed up in the words of Field J. in
the celebrated judgment of Munn v. Illinois13 where he held that life means ‘something more
than mere animal existence’, which was further affirmed by the Supreme Court of India in the
case of Bandhua Mukti Morcha v. Union of India.14 In light of this expanding jurisprudence of
Article 21, the doctrine of marital exemption to rape violates a host of rights that have emerged
from the expression ‘right to life and personal liberty’ under Article 21. There can not be a more
obvious and blatant violation of Article 21. The marital exemption to rape violates the right to
privacy, right to bodily self-determination and right to good health, all of which have been
recognized as an integral part of the right to life and personal liberty at various points of time.

RIGHT TO SEXUAL PRIVACY

Right to privacy is not mentioned in the Indian Constitution. Nevertheless, in a series of cases,
the Supreme Court has recognized that a right of privacy is constitutionally protected under
Article 21. The right of privacy under Article 21 includes a right to be left alone. Any form of
forceful sexual intercourse violates the right of privacy. It is submitted that the doctrine of
marital exemption to rape violates a married woman’s right to privacy by forcing her to enter
into a sexual relationship against her wishes.

The Supreme Court in the case of State of Maharashtra v. Madhkar Narayan15 has held that every
woman was entitled to sexual privacy and it was not open to for any and every person to violate
her privacy as an when he wished or pleased. In the case of Vishakha v. State of Rajasthan16, the
Supreme Court extended this right of privacy to workplaces. Further, along the same line that
there exists a right of privacy to enter into a sexual relationship even within a marriage. By
decriminalizing rape within a marriage, the marital exemption doctrine violates this right of
privacy of a married woman and is hence, unconstitutional.

RIGHT TO BODILY SELF-DETERMINATION

12
AIR 1978 SC 597.
13
94 US 113 (1877).
14
AIR 1984 SC 802, 811.
15
AIR 1991 SC 207..
16
AIR 1997 SC 3011.
Though the Constitution does not expressly recognize the right of bodily self-determination, such
a right exists in the larger framework of the right to life and personal liberty under Article 21.
The right of self-determination is based on belief that the individual is the ultimate decision
maker in matters closely associated with her/his body or well-being and the more intimate the
choice, the more robust is the right of the individuals to be the authors of their own fate. Consent
to sex is one of the most intimate and personal choice that a woman reserves from herself. It is a
form of self expression and self-determination and a law that takes away the right of expressing
and revoking such consent definitely deprives a person the constitutional right of bodily self-
determination. It is submitted that the marital exemption doctrine effectively deprives a married
woman her right to bodily to self-determination in respect of one of the most intimate and
personal choice, i.e., consent to sexual intercourse, and is hence, unconstitutional. In addition to
being violative of the doctrine of classification under article 14 and various rights emanating
from Article 21, the doctrine of marital exemption to rape also does not pass the test of “just, fair
and reasonable” law and hence is violative of both Articles 14 & 21 of the Indian. It has been
held by the Supreme Court in a catena of cases that any ‘law’ which is subject to scrutiny under
Article 14 or Article 21 must satisfy this test of reasonability to be called within the framework
of the Constitution. Even if the doctrine of marital exemption to rape passes through the test of
classification under Article 14, it still has to survive the test of “just, fair and reasonable” law to
be called constitutional.17Similarly in the context of Article 21, it must be possible to argue that
since a person can be deprived of her/his right to life and personal liberty through a ‘procedure
established by law’ and since the marital exemption doctrine is a ‘procedure established by law’,
it is within the framework of the Constitution. But, this is an old and miserable argument and the
Supreme Court has held in a number a cases that ‘Article 21 requires that no one shall be
deprived of his life or personal liberty except by procedure established by law and this procedure
must be reasonable, fair and just and not arbitrary, whimsical or fanciful’.38

JUDICIAL STAND

Tracing the history of judicial decisions on infliction of serious injury by the husband on the wife
the court in Queen Empress vs. Haree Mythee18, observed that in case of married women, the law
of rape does not apply between husband and wife after the age of 15; even if the wife is over the
17
Ajay Hasia v. Khalid Mujib, AIR 1981 S 487.
18
[(1891) ILR 18 Cal. 49].
age of 15, the husband has no right to disregard her physical safety, for instance, if the
circumstances be such that intercourse is likely to cause death. In the present case, the husband
was convicted under section 338, Indian Penal Code, for rupturing the vagina of his eleven-year-
old wife, causing hemorrhage leading to her death.

In Emperor vs. Shahu Mehrab19, the husband was convicted under section 304A Indian Penal
Code for causing death of his child-wife by rash or negligent act of sexual intercourse with her..

In Saretha vs. T. Venkata Subbaih20 the Andhra Pradesh High Court held: “There can be no
doubt that a decree of restitution of conjugal rights thus enforced offends the inviolability of the
body and mind subjected to the decree and offends the integrity of such a person and invades the
marital privacy and domestic intimacies of a person”If State enforced sexual intercourse between
husband and wife is a violation of the right to privacy, surely a woman’s right to privacy is
equally violated in case of non-consensual sexual intercourse with the husband. Rights and duties
in a marriage, like its creation and dissolution are not the terms of a private contract between two
individuals. The right to privacy is not lost by marital association.

The Supreme Court, in State of Maharashtra vs. Madhukar Narayan Mandikar21, has referred to
the right of privacy over one’s body. In this case it was decided that a prostitute had the right to
refuse sexual intercourse. What is sad to know is that all stranger rapes have been criminalized
and all females, other than wives, have been given the right of privacy over their bodies thereby
envisaging the right to withhold consent and refuse sexual intercourse.The judiciary seems to
have completely relegated to its convenience the idea that rape within marriage is not possible or
that the stigma of rape of a woman can be salvaged by getting her married to the rapist.The
trouble is that it has been accepted that a marital relationship is practically sacrosanct. Rather
than, making the wife worships the husband’s every whim, especially sexual, it is supposed to
thriven, mutual respect and trust. It is much more traumatic being a victim of rape by someone
known, a family member, and worse to have to cohabit with him. How can the law ignore such a
huge violation of a fundamental right of freedom of any married woman, the right to her body, to
protect her from any abuse?

19
[AIR 1917 Sind 42].
20
AIR 1983 AP 356].
21
AIR 1991 SC 207.
CONCLUSION
The continuing exemption of marital rape from the purview of criminal law sustains the
assumption of the wife as exclusive property of the husband. As stated by Katherine O’
Donnovan: “Its immunity from the purview of the criminal law is explained on the grounds that
the female victim is a wife. This justification can be understood in the context of the dominant
familial ideology and female sexuality which treats a wife as property and as having no sexual
agency or decision making in sexual activity within the marital contract”.

It is argued that marital rape should be criminalized in India, as this can be achieved by applying
an individual rights approach to violence against women. Indian women’s organizations have
succeeded to achieve public awareness and to pass legislation on domestic violence, but marital
rape has not been fully criminalized by abolishing the distinction between marital rape and
stranger rape. But marital rape will neither be criminalized nor punished, until legislators and the
society acknowledge women’s individual rights within the marriage. Ideas about women’s
sexuality, and therefore ideas about non-marital and marital rape in Indian society, originate in
concept of gender, shame and family honour, rather than women’s rights and individual
autonomy. If the reformers see rape as a crime against a woman and her person and bodily
integrity and humanity, then marital rape and its punishment would be a legal possibility. To
bring a change in the existing policy, we may use an individual rights rhetorical approach in
working towards criminalizing marital rape in India, because marital rape will not be a State
concern until the society and legislators understand women to have individual rights within
marriage.

In western countries, activists have operated within the individual rights framework in seeking
to challenge cultural assumptions about marital relationships. The individual rights paradigm
may have a similar role in India, where cultural assumptions prevent communities and even
women’s organizations from talking about the evil of marital rape. As aforesaid, marital rape is
not fully criminalized in India. It is clearly a serious form of violence against women and worthy
of public and State attention. The studies till date indicate that women who are raped by their
husbands are more likely to experience multiple assaults and often suffer long –term physical
and emotional consequences. In this context, marital rape may be even more traumatic than rape
by a stranger because a wife lives with her assailant and she may live in constant terror of
another assault whether she is awake or asleep. Given the serious effects, there is a clearly an
urgent need for criminalization of the offence of marital rape. India is moving in the direction of
positive legal change for women in general, but further steps are necessary to ensure both legal
and social change, which would culminate in criminalizing marital rape and changing the
underlying cultural assumptions about women in marriage. Although most Indian women feel
protected under the Protection of Women from Domestic Violence Act, there are many loopholes
in it, as the Act does not openly speak against marital rape. However, the enactment of a specific
legislation against domestic violence has opened the door for a legislation criminalizing marital
rape because it would signal a shift in the State’s approach of non-intervention in family life.
Though a husband’s violent and non-consensual act of intercourse may entitle a wife to bring
action for criminal assault, inquiry or matrimonial relief, what is needed is the incorporation of
the principle of liability for marital rape in our penal laws. Not only child-brides, but all wives
need legal protection from rape within the marriage. It is high time that the dignity and freedom
of a woman over her body and person must be recognized. Can the State really enter the realm of
the home? The answer to this is a “yes”. It already does, in the cases of cruelty, divorce and
dowry demands, then why leave the most atrocious and heinous crime outside the ambit of the
State and laws. Why must the area of marital rape remain beyond its pale? The State which does
not involve itself at the time of the marriage but acts as an arbitrator during divorce must protect
a woman’s right to her body.The woman has and still continues to be victimized by man and
society. There is a need to acknowledge her as a human being, away from the ancient notion of
her being a mere chattel, and give her respect and the dignity she deserves. The patriarchal power
structures have deemed marriage to be a license to legal unwilling sex. There is a total negation
of the self worth of a woman.