Dr.

Ram Manohar Lohiya National Law University

Lucknow
2021-2022

IPC PROJECT

“MARITAL RAPE EXEMPTION”

Submitted to: Submitted by:

Dr. VIPUL VINOD AMAN RAJ

Assistant professor (Law) 190101017

Dr. Ram Manohar Lohiya National B.A.LLB(Hons.) Sem V

Law University, Lucknow Section ‘A’

 I. ACKNOWLEDGEMENT

I would like to convey my gratefulness to a lot many people who have helped
and supported me in making this project.

I would like to thank my family and friends who have always been supportive of
my endeavours.

Words are inadequate in offering my deep sense of gratitude to

Dr. VIPUL VINOD for her precious guidance. From assigning me this topic to
instructing me on how I should move forward with my work, his enthusiasm and
knowledge has always been of utmost importance.

I know that despite my best efforts some discrepancies might have crept in
which I believe my humble Professor would forgive.

Thanking You All

AMAN RAJ
 II. CONTENTS
I. ACKNOWLEDGEMENT................................................................................................2

II. CONTENTS......................................................................................................................3

III. INTRODUCTION.........................................................................................................4

IV. WHAT IS MARTIAL RAPE?.....................................................................................6

V. REASON FOR NOT INCLUDING MARTIAL RAPE AS CRIME...........................7

VI. INTERPRETATION OF S. 375 OF IPC AND ITS LACUANE..............................9

VII. ABETTING BRIDAL TRAFFICKING....................................................................15

VIII. CONCLUSION............................................................................................................16

IX. SUGGESTIONS..........................................................................................................18

X. BIBLIOGRAPHY...........................................................................................................19
 III. INTRODUCTION
According to Oxford Dictionaries, Rape means “the crime, typically committed by a man, of
forcing another person to have sexual intercourse with the offender against their will” 1

According to Cambridge Dictionaries, Rape means “to force someone to have sex when they
are unwilling, using violence or threatening behaviour”2

Thus, from the above definition we find that Rape means when one forced other person to
have sexual intercourse without taking consent of the person.

In every country including India, Rape is considered to be a heinous crime against women.
Recently in India, the number of crime cases against women has been increased as per the
data released by National Crime Records Bureau 3. In every two minute one cases of crime
against women is reported in India. According to the report of NCRB, 2.24 million cases of
crimes against women have been registered in past decade. Crime which is reported includes
both physical and mental torture.

In 21st century, when we speak about the equal rights and position of women in society and
women empowerment etc but one thing which always put question on the effort of the
Government is the rise of crime against women and even though, we had a strong law for the
protection of women, but still, we are lacking behind to control such crime against women.

Now one thing which strike my mind, is that though we had strong law for the protection of
women but still the crime against women is rising year by year with some heinous gruesome
story in it like Delhi Gang Rape Case in 2012 4, recent Nirbhaya like rape case of 30 years old

1
http://www.oxforddictionaries.com/definition/english/rape
2
http://dictionary.cambridge.org/dictionary/english/rape
3
Chaitanya Mallapur, Crimes against women reported every two minutes in India, Scroll.in,
http://scroll.in/article/753496/crimes-against-women-reported-every-two-minutes-in-india
4
Delhi Gang rape Victims Friend Relives The-Horrifying 84 Minutes Of December 16 Night, for details of the
incident, http://indiatoday.intoday.in/story/delhi-gangrape-victims-friend-relives-the-horrifying-84-minutes- of-
december-16-night/1/309573.html
lady in Kerala5. These incidents shows that law of our land fails to protect the women of our
country.

Now questions which comes to my mind again is that and off course one of the motives of
this research are:

1. What about the Cases of Marital Rape as it is not considered as crime in India under
section 375 of IPC?
2. Is marriage a license to rape your wife?

Like other forms of domestic violence, marital rape is about exerting power and control over
one’s partner’s body and integrity. It is a form of partner rape, domestic violence, intimate
partner sexual aggression and sexual abuse. What constitutes rape is lack of consent but in
India it is presumed that during marriage this consent is given by wife to her husband. The
exception to section 375 does not state any reason of exempting marital non-consensual
sexual intercourse or other sexual acts from the definition of rape. A marriage under Hindu
law is a sacred covenant where promises are made to each other by groom and bride.
Bridegroom promises to look after her and the bride promises to be faithful to him. These
inherent differences and biases towards women are now regarded as her consent. Actually,
she doesn’t specifically consent to her being ravished in bedroom but the so-called marriage
institution assumes such consent. The transfer of gift that is kanyadan is done by parents of
bride, to bridegroom justifying the status of women as mere chattel. The mere promise of
being faithful is considered to be irrevocable consent of sexual intercourse. But now the
situation has changed in India, women are no longer considered chattel but have independent
identity and dignity after recent supreme court judgements.

Through this research I will try to find out the answer of the above question and will also
discuss about the plight of the women in India when question comes about their dignified life.

5
Vivek Surendran, All you need to know about the brutal Nirbhaya-like rape case of Kerala, Indiatoday.in,
http://indiatoday.intoday.in/story/nirbhaya-kerala-rape-perumbavoor-dalit-law-graduate-
instestines/1/657715.html
 IV. WHAT IS MARTIAL RAPE?
Marital Rape means where the both the persons are legally wedded and the wife is forced by
her husband to do sexual intercourse. It is not crime in India.

India is a country where marriage is considered to be as SAMSKARA 6 and also one of the
most important and basics aspects of Hindu Social System. And also, it is advised in ancient
legal history that it is the duty of the husband and wife not to disclose anything about their
relationship beyond the four-wall boundary of their bedroom. After Hindu Marriage Act,
1955 some changes have been made and included where wife and husband can make
complaint against their grievance in the court of Law. But nothing has been discussed about
the marital rape in Ancient India as well as in Modern India. The plight of the wife in India is
very much miserable in cases of Marital Rape due to absence of Law. And this topic is such
which no one wants to discuss with other, so the actual data of marital rape is not available.
But during my research when I discussed this topic with my women colleagues, house maids,
other female staff of my work place I found that every woman had faced involuntary sexual
Intercourse with their Husband. Now question is whether in such Case Husband should be
guilty of rape as there wife had not given consent for intercourse. My answer is no. As it is
not necessary that every day both husband and wife should be in same mood to have sexual
desire, some time may be any one of them may not be in the mood of the sex but still if any
one partner surrender to other unwillingly so that not to hurt other feeling that feeling or sex
should not be compared and considered as Marital Rape.

But in a relationship between husband and wife which is not a healthy relationship and where
every day husband is abusing his wife both physically and mentally, ill-treating her in such
cases if he used physical force and become violent in refusal of his wife for sexual
intercourse in that case it should be considered as crime and such person should be guilty of
Marital Rape. Because, Marital Rape is violation of Right given by Article 21 to Women i.e.
Right to dignity, as well as both physically and mentally it disturbed the women which is not
good for her health.

6
Justice M. Rama Jois, Legal and Constitutional History of India,247, Universal Law Publishing Co.,(7th ed,
2010)
 V. REASON FOR NOT INCLUDING MARTIAL RAPE AS CRIME
India is a patriarchal society where law reform is very tough, when question comes about the
right of women whether it is Right to Abortion for all women or Marital Rape.

Article 14 speaks about Equality for before Law “The State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India”. 7 But
when this Article should be applied for the protection of the women right, Indian Judiciary
and Government fail to perform its function by giving the so-called excuse of Marriage is a
sacrament and Indian society is a patriarchal society.

Even after the Delhi Gang rape case, Justice J. S. Verma Committee while reviewing the
existing Rape Law suggested to include Marital Rape also as crime under section 375 8 of
IPC. But Government of India did not include Marital Rape as crime under Section 375.

Thus, Indian law gives license to husband to commit rape with his wife. And if any women
file complaint against her husband, then in that case she alone had to struggle for her right
and at the end of her case the Court will give judgment that “it was not possible to order a
change in the law for one person.”9

In many research it has been proved and found that women in India whether she is literate or
not is subject to marital Rape. In one of the surveys conducted by National Family Health
Survey10 in the year 2005-2006, which was conducted among 124,385 women in 29 Indian
states, found that 10% of the women reported that their husbands had physically forced them
to have sex. In another study conducted by the International Centre for Women (ICRW) and
United Nations Population Fund's (UNPFA) across seven states in India covered 9,205 men
and 3,158 women aged 18-49 from each state in which One-third of the men interviewed
admitted to having forced a sexual act on their wives.11
7
Mamta Rao, Constitutional Law, 100, Eastern Book Company,( 1st ed,2013)
8
K.D.Gaur, Textbook On The Indian Penal Code,642, Universal Law Publishing Co. Pvt.Ltd,(4th.ed., 2009)
9
India marital rape victims' lonely battle for justice, BBC NEWS, http://www.bbc.com/news/world-asia-india-
32810834
10
Id.
11
Id.
Even after having such a strong data and research report Indian Government is not
considering the plight of the women just because of the losing of his power in Patriarchal
Society.

"For generations, women have been given in marriage. Once married she is viewed as
property that belongs to her husband and his family. A woman's right to her body is not
recognized," says Ranjana Kumari of the Centre for Social Research.12

Marital rape is considered as a criminal offence in about 52 countries, including the United
States, the United Kingdom, Canada, France and neighbouring Bhutan.

According to Advocate Vrinda Grover, "Whenever there is a movement to increase a

woman's access to justice, people who are afraid of women being empowered start talking
about the misuse of law."13

According to Frederika Meijer, UNFPA representative 14"When women experience coercion

and violence within relationships, it violates their fundamental right to live in safety, security
and with dignity. An intimate relationship, particularly marriage, should be a space of mutual
trust and respect."

Somewhere from this discussion we find that as India is a male dominating country, so if
Marital Rape is included as Crime under section 375 of IPC then in that case , male will lose
their power over women, which they don’t want and that is the only reason for not including
Marital Rape as crime.

12
Poulomi Banerjee, When no is not an option: Marital rape denies right over her body, Hindustan Times,( May
25th May, 2015 ,1:40 am), http://www.hindustantimes.com/india/when-no-is-not-an-option-marital-rape- denies-
right-over-her-body/story-MJ3OIHpn9mtVfC3AXbbWOP.html
13
Id.
14
Id.
Right to live with Dignity, are basic Human Rights of every human being irrespective of their
sex both in India as well as in International Human Rights Law. And nobody has the right to
curtail this right on the basis of sex, race, religion etc. But unfortunately, repeatedly, Indian
Government and Judiciary had failed to protect this right for women when question come of
Marital Rape?

VI. INTERPRETATION OF S. 375 OF IPC AND ITS LACUANE

Section 375 of Indian Penal Code defines Rape, “A man is said to commit "rape" if he—

A. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a
woman or makes her to do so with him or any other person; or

B. inserts, to any extent, any object or a part of the body, not being the penis, into the
vagina, the urethra or anus of a woman or makes her to do so with him or any other
person; or

C. manipulates any part of the body of a woman so as to cause penetration into the
vagina, urethra, anus or any of body of such woman or makes her to do so with him
or any other person; or

D. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with
him or any other person,

under the circumstances falling under any of the following seven 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 eighteen years of age. Seventhly.—
when she is unable to communicate consent.

Explanation 1.—For the purposes of this section, "vagina" shall also include labia majora.

Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by

words, gestures or any form of verbal or non-verbal communication, communicates
willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by
the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1.—A medical procedure or intervention shall not constitute rape.

Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not
being under fifteen years of age, is not rape.”15

Under section 375 of IPC a husband will be guilty of rape only if his wife is below 15 years
or 15 years. And if the married lady is a major person i.e., 18 years and above, then there is
15
Universal Criminal Manual, 547, Universal publishing house Pvt. Ltd, ISBN: 9788175349193.
no law for her protection. Is this a kind of mockery? Then in that case, rape committed with a
minor girl only should be considered as crime under section 375 of IPC and not with a major
person.

This is a clear picture of biasness of law. Because, when questions come for criminalizing
Marital Rape under Section 375, in one side husband will be guilty of rape if his wife is
below 15 years or 15 years old and in other side there is no law for the protection of the wife
if she is 15 years above.

Another important point which is to be highlight here is that, as we know that under section
375 there is no concept of Marital Rape. But when we read Exception 2 of Section 375 which
says that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being
under fifteen years of age, is not rape” 16, this exception clearly speaks about the Marital Rape
as here the both the persons were legally married.

So, Indian law may didn’t recognized Marital Rape as a crime but this Exception 2 of 375
speaks and consider Marital Rape as offence under 375 of IPC but with a limitation. 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 separation17.

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;18
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 fine19

16
Id.
17
Indian Penal Code, Section 376A.
18
Indian Penal Code, Section 376 (1).
19
Ibid.
 3. Rape of a judicially separated wife, offence punishable with imprisonment upto 2
years and fine;20
4. Rape of wife of above 15 years in age is not punishable21.

The whole legal system relating to rape is in a mess, replete with paradoxes. The major legal
lacunae that come in the way of empowering women against marital rape are:

1. The judicial interpretation has expanded the scope of Article 21 of the Constitution of
India by leaps and bounds and & right to live with human dignity is within the ambit
of this article. Marital rape clearly violates the right to live with dignity which was
recognised in the case of C.E.S.C Ltd. v. Subash Chandra22 . To that effect, it is
submitted, that the exception provided under Section 375 of the Indian Penal Code,
1860 is violative of Article 21 of the Constitution.

Later, in Suchita Srivastava v. Chandigarh Administration 23, the Supreme Court

equated the right to make choices related to sexual activity with rights to personal
liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.

2. Article 14 of the Constitution guarantees the fundamental right that the State shall not
deny to any person equality before the law or the equal protection of the laws within
the territory of India. Article 14 therefore protects a person from State discrimination.
But the exception under Section 375 of the Indian Penal Code, 1860 discriminates
with a wife when it comes to protection from rape. It creates two classes of women
based on their marital status and immunizes actions perpetrated by men against their
wives. In doing so, the exception makes possible the victimization of married women
for no reason other than their marital status while protecting unmarried women from
those same acts.

20
Indian Penal Code, Section 376A.
21
Indian Penal Code, Exception to Section 375.
22
C.E.S.C. Ltd. v. Subhash Chandra, (1992) 1 SCC 441 (India)
23
Suchita Srivastava v. Chandigarh Administration, (2008) 14 SCR 989 (India)
 The classification created by the exception as it has no rational nexus to the
underlying purpose of the statute. In Budhan Choudhary v. State of Bihar 24 and State
of West Bengal v. Anwar Ali Sarkar25, the Supreme Court held that any classification
under Article 14 of the Indian Constitution is subject to a reasonableness test that can
be passed only if the classification has some rational nexus to the objective that the
act seeks to achieve. But Exception 2 frustrates the purpose of Section 375: to protect
women and punish those who engage in the inhumane activity of rape.

3. Though protection of the dignity of women is a fundamental duty under Article 51 A

(e)26 the Constitution, casting a duty upon every citizen & renounce practice
derogatory to the dignity of a woman it seems that domestic violence and marital rape
do not come under the definition of dignity.

4. The United Nations Convention on the Elimination of All Forms of Discrimination

against Women (CEDAW), of which India is a signatory, has viewed that this sort of
discrimination against women violates the principles of equality of rights and respect
for human dignity. Further, the Commission on Human Rights, at its fifty-first
session, in its Resolution No. 1995/85 of 8-3-1995 entitled. The elimination of
violence against women recommended that marital rape should be criminalized.

5. A husband cannot be prosecuted for raping his wife because consent to matrimony
presupposes consent to sexual intercourse. This implies that having sex anytime,
anywhere and of any sort is an implied term of the contract of marriage, and the
wife could not breach that term of the contract. 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 law27.

6. The law prevents a girl below 18 years from marrying, but on the other hand, it

24
Budhan v. State of Bihar, AIR (1955) SC 191 (India)
25
State of West Bengal v. Anwar Ali Sarkar, AIR (1952) SC 75 (India)
26
Art. 51-A, The constitution of India, 1950.
27
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.
 legalizes non-consensual sexual intercourse with a wife who is just 15 years of
age.

7. The Indian Penal Code, 1860 states that it is rape if the girl is not the wife of the
man involved and is below 16, even if she consents. But if she is a wife, not below
15 and does not consent, it is not rape.

8. Another paradox is that according to the Indian Penal Code, 1860, it is rape if
there is a non-consensual intercourse with a wife who is aged between 12 and 15
years. However, the punishment may either be a fine or an imprisonment for a
maximum term of 2 years or both, which is quite less in comparison to the
punishment provided for rape outside the marriage.

9. 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 violence28. Under this Act, if a woman has undergone martial rape,
she can go to the court and obtain judicial separation from her husband. This is
only a piecemeal legislation and much more needs to be done by the parliament in
regard to martial rape.

10. 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 the standard 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 qua non? Is marriage a license to rape? There is no
answer, because the judiciary and the legislature have been silent.

11. Though the advocates of women rights secured a clause in 1983 under which it is
unlawful for a man to have sexual intercourse with his separated wife pending
divorce, the courts are reluctant to sentence husbands in spite of the law.

VII. ABETTING BRIDAL TRAFFICKING

28
The protection of women from domestic violence act, 2005, Section 3 Explanation 1 (ii).
When a third party like pimp or the subsequent husband for the purpose of exploitation which
could be deciphered if he uses force, threat, by means of abduction, by fraud or deception
abuse of power or by inducement transfers, harbours, transports, or receives will be guilty of
trafficking. But traffickers are using marriage as an alibi to rape girls in the first instance, to
break them, before selling them to pimps and brothel owners. This first rape, say
campaigners, is a method to control the victim. By robbing girls of all dignity, it is easier to
trap them in sex work where they are shamed into submission. They make girls to sign on
marriage documents and when she realises that she is being raped she has no legal recourse
left.

They cannot claim the remedy under section 366 IPC as mostly because of their poor
background they consensually marry some random rich people. As section 366 require
“against her will”. Subsequently after marriage they are raped or sexually assaulted by their
husbands which breaks them into living like prostitutes and consenting to be sold. This legal
immunity from raping the wives is encouraging these traffickers who use this legal loophole
to exploit married women. The wording of the section prohibits “illicit intercourse” i.e.
sexual intercourse between persons not united by marriage or by any union or tie constituting
a quasi-marital relation, which exempts marital sexual intercourse from its purview.

Other remedies like in sections 370A (2) also could not be availed by women who willingly
married due to the poor family conditions, as they are not trafficked in the first place but

during marriage, they are subjected to sexual exploitation which ultimately results in their
consenting to further exploitation. Sections 372 and 373 specifically deal with the minors not
adult married women. In the veil of marital status women are exploited with no legal remedy
and if available also with meagre punishments. Marriage is used as an initial stage to
dissuade, discourage, oppress and making them vulnerable for further exploitation. With the
removal of this legal immunity traffickers could be deterred from using marital sexual
exploitation as a weapon to sexually exploit women in India.
 VIII. CONCLUSION
Marital rape as an exception to rape even though amended several times continues to exist
because of the prevalent gender discrimination, legislative despotism, male chauvinism and
widespread patriarchy in Indian society. By not repealing the exception we continue to
support and adore the parochial vestiges of the colonial rule which favours the top male
legislators. We still regard women as chattel without an individual person who has her sexual
decisional autonomy to say no or yes as she wishes. Even the British regard this principle of
coverture as anachronistic. Lord Keith in R v. R29 declared: -

“Marriage is in modern times regarded as a partnership of equals, and no longer one in

which the wife must be the subservient chattel of the husband. Law prohibits it; scriptures
forbid it; philosophy condemns it; ethics deprecate it, morality decries it and social science
abhors it”.

The House of Lords in R. v R. widened the scope of criminal liability by declaring that a
husband could be charged as the principal offender in the rape of his wife. This decision
seems to have obliterated the husband’s protection from such prosecution under the common
law doctrine of ‘martial exemption.’ This exemption was based upon the belief under which
the wife was regarded as the husband’s chattel. This has now become an outmoded view of
marriage.

But with the recent judgements of hon’ble Supreme Court of India like adultery and right to
privacy, the position of women has changed from a mere chattel to an independent identity
even after marriage. Justice Chandrachud30 held that:

“Privacy began with the human body, and that at the heart of the right to privacy was the
idea of decisional autonomy – that is the right of each individual to decide how, and to what
end, her body would be used. Just as individuals cannot sell themselves into slavery, nor can
they be deemed to have waived their right to decisional autonomy upon marriage”.

Our inability to criminalize marital rape amounts to our lawmakers acting as accomplices to
sexually exploit married women under the guise of ‘institution of marriage’. Judicially there
29
R. v. R. (Rape: Martial Exemption) (1991) 4 All ER 481 (HL)
30
K. S. Puttaswamy v. Union of India, (2018)Writ Petition (Civil) No. 494 of 201
is no point left in not prosecuting husband for this barbaric act, which, if done to a stranger,
would be criminal. There have been sluggish improvements in IPC of regarding sexual
intercourse without consent of spouse as rape during Judicial Separation, widening of the
definition of rape and trafficking, but with the evolving judicial trend, judiciary should show
way to legislation by declaring the marital rape exemption as unconstitutional.

There are a lot of anomalies present in IPC with regard to basic assumption of exempting
marital unconsented sexual intercourse or sexual acts which is the irrevocable marital consent
to submit sexually, physically and emotionally to your husband. Anomaly could be found in
section 354 and 375. While a husband could be held under outraging the modesty of a women
under section 354 for doing perverted sexual acts even in private, not acceptable to wife in
specific and society in general such as cunnilingus and fellatio. As these acts are regarded as
indecent and against the reproductive sexual intercourse. But he cannot be held under section
375 as he is exempted from all sexual acts no matter how loathsome or repulsive, they may
be.

Criminalizing marital rape, therefore, is not about the State invading the bedroom, but about
ensuring that the principles of consent, dignity, and autonomy, apply as much within the
bedroom as outside. In striking down the marital rape exception, the court will not be creating
a new crime, or trespassing into the domain of Parliament, it will be holding that an artificial
immunity from criminal law, created by an 1860 law, can no longer survive constitutional
scrutiny. Supreme Court held that;31

No one can compel a woman to love. She has the absolute right to reject. In a civilized
society male chauvinism has no room.

IX. SUGGESTIONS
In light of the above discussion following suggestions are made for reformation:

31
Pawan Kumar v. State of Himachal Pradesh, AIR 1983 AP 356
 1. Marital rape should be recognized by Parliament as an offence under the Indian Penal
Code.
2. The punishment for marital rape should be the same as the one prescribed for rape
under Section 376 of the Indian Penal Code.
3. The fact that the parties are married should not make the sentence lighter.
4. It should not be a defence to the charge that the wife did not fight back and resisted
forcefully or screamed and shouted.
5. The wife should have an option of getting a decree of divorce if the charge of marital
rape is proved against her husband. Though a case of marital rape may fall under
cruelty or rape as a ground of divorce, it is advisable to have the legal position
clarified.
6. Demand for divorce may be an option for the wife, but if the wife does not want to
resort to divorce and wants to continue with the marriage then the marriage should be
allowed to continue.
7. Corresponding changes in the matrimonial laws should be made.
Recommendation by the law commission of India in the 205th law commission
report32: “It further prays that the Union of India should be directed to amend the
laws relating to age of marriage and minimum age of giving sexual consent so that
both are in conformity with each other. The petition prays for deletion of the
explanation (2) under Section 375 IPC under which marital rape is not considered
rape unless the wife is less than 15 years of age.” This demand has also been raised by
the 172nd Law commission report which was passed in March 2000.

32
205th report of Law Commission of India on Review of Rape Laws, March 2000, page 44, para iii.
 X. BIBLIOGRAPHY

Cases

Budhan v. State of Bihar, AIR (1955) SC 191 (India).............................................................13

C.E.S.C. Ltd. v. Subhash Chandra, (1992) 1 SCC 441 (India)................................................12
K. S. Puttaswamy v. Union of India, (2018)Writ Petition (Civil) No. 494 of 201...................16
Pawan Kumar v. State of Himachal Pradesh, AIR 1983 AP 356............................................17
R. v. R. (Rape: Martial Exemption) (1991) 4 All ER 481 (HL)...............................................16
State of West Bengal v. Anwar Ali Sarkar, AIR (1952) SC 75 (India)....................................13
Suchita Srivastava v. Chandigarh Administration, (2008) 14 SCR 989 (India)......................12

Statutes

Indian Penal Code, Exception to Section 375.........................................................................12

Indian Penal Code, Section 376 (1).........................................................................................12
Indian Penal Code, Section 376A......................................................................................11, 12
The protection of women from domestic violence act, 2005, Section 3 Explanation 1 (ii).....14

Constitutional Provisions

Art. 51-A, The constitution of India, 1950...............................................................................13

Reports

205th report of Law Commission of India on Review of Rape Laws, March 2000, page 44,
para iii...................................................................................................................................18

Books

Justice M. Rama Jois, Legal and Constitutional History of India,247, Universal Law
Publishing Co.,(7th ed, 2010..................................................................................................6
K.D.Gaur, Textbook On The Indian Penal Code,642, Universal Law Publishing Co. Pvt.Ltd,
(4th.ed., 2009)........................................................................................................................7
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....................14
Mamta Rao, Constitutional Law, 100,Eastern Book Company,( 1st ed,2013)..........................7
Universal Criminal Manual, 547, Universal publishing house Pvt. Ltd, ISBN:
9788175349193....................................................................................................................11

Newspaper Article

Chaitanya Mallapur, Crimes against women reported every two minutes in India, Scroll.in,
http://scroll.in/article/753496/crimes-against-women-reported-every-two-minutes-in-india4
Delhi Gang rape Victims Friend Relives The-Horrifying 84 Minutes Of December 16 Night,
for details of the incident, http://indiatoday.intoday.in/story/delhi-gangrape-victims-friend-
relives-the-horrifying-84-minutes- of-december-16-night/1/309573.html............................4
India marital rape victims' lonely battle for justice, BBC NEWS,
http://www.bbc.com/news/world-asia-india- 3281083..........................................................7
Poulomi Banerjee, When no is not an option: Marital rape denies right over her body,
Hindustan Times,( May 25th May, 2015 ,1:40 am),
http://www.hindustantimes.com/india/when-no-is-not-an-option-marital-rape- denies-right-
over-her-body/story-MJ3OIHpn9mtVfC3AXbbWOP.htm...................................................8
Vivek Surendran, All you need to know about the brutal Nirbhaya-like rape case of Kerala,
Indiatoday.in, http://indiatoday.intoday.in/story/nirbhaya-kerala-rape-perumbavoor-dalit-
law-graduate- instestines/1/657715.htm................................................................................5

Websites

http://dictionary.cambridge.org/dictionary/english/rape............................................................4
http://www.oxforddictionaries.com/definition/english/rape......................................................4