Dr.

RAM MANOHAR LOHIA NATIONAL

LAW UNIVERSITY LUCKNOW

INDIAN PENAL CODE

FINAL DRAFT
MARITAL RAPE- THE LEGAL CRIME

Submitted to:- Submitted by:-

Dr.Kumar Askand Pandey Himanshu Verma

Mr. Malay Pandey Enroll no. 55

Section -A

B.A. LL.B.(Hons.)- Vth semester

 ACKNOWLEDGEMENT
It is my greatest pleasure to be able to present this project of the Indian penal code. I found it very
interesting to work on this project. I would like to thank Mr. Malay Pandey Assistant Prof., Faculty
of law, Dr. Ram Maohar lohiya National Law University for providing me with such an interesting
project topic, for his unmatched efforts in making learning an enjoyable process, for his immense
sincerity for the benefit of his students and for his constant unconditional support and guidance.

I would also like to thank my librarian for helping me in gathering data for the project. Above all, I
would like to thank my parents, who from such a great distance have extended all possible moral and
motivated support for me and have always advised me to be honest in my approach towards my work.

I hope the project is upto the mark and is worthy of appreciation.

Himanshu Verma

Dr. Ram Manohar Lohiya National Law University, Lucknow

In the writ petitions filed before the Delhi High Court, the substantive challenge
has been laid to Exception 2 to Section 375 as well as Section 376B of the IPC on
the ground that it excludes marital rape as a criminal offence. It is contended that...

No clarity on marital rape

Under Section 375 of the IPC, which deals with rape cases, there is a surprise exception for marital rape
case. It says: Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is
not rape.

The Centre has constantly argued that marital rape cases are rarely registered, but has any one wondered
why? The reason is: No section of the IPC validates marital assault as a crime, thus the number of
complaints registered is so less.

Some special provisions such as amendments to Sections 113 B, 498A and 304Bhave paved the way for
some complaints to be registered; however, grievances filed would still be recognised as domestic
violence not amounting to rape.

In such a scenario, under what laws does the Centre expect women to file complaints in case of genuine
cases of violence? If there is no law that holds husbands guilty of practicing non-consensual sex, how can
women step forward and lodge complaints?
An article published in The Hindu in 2016 narrated the story of a woman who spent 24 years of
her life in fear of being assaulted by her husband. She lodged a domestic violence case against
her husband in 2007, but in 2015, approximately nine years after filing the complaint, she was
brutally assaulted, with injuries on her private parts.

A murderer kills the body but a rapist kills the soul is a famous quote by late Justice Krishna
Ayer, describing the perils of rape; it also indicates that a rape shall always be unwanted
exploitation of the body, even if the offender happens to be the husband of the victim.

Being married doesnt change the social rules. Just because a woman said I do to
marriage doesnt mean that she has said I do to sex whenever, wherever, and however
her husband wants it. Married sex, like all intimate, loving sex is consensual. It is a way
that two people who love each other express love and caring and communicate
tenderness

Sex should be based on respect, equality, consent, caring, and clear communication.

Why Would a Woman Stay With a Man Who Raped Her?

The answers to this question are complicated. Many women believe it is part of
their "wifely duty" to have sex with their husbands, even if it is violent sex against
their will. Many religious doctrines outline sexual acts as a "duty" for wives. In
addition, it is only recently that the law has begun to offer wives protection from
their husband's sexual attacks, and many people may be unaware that wife rape
is a crime.

Many women do not have the financial resources to leave a relationship. If a

woman has children, her ability to leave is complicated by the added problem of
moving her children with her (taking them out of school, away from friends) or
abandoning her children. She may not leave for fear of what the offender may do
to her or the children.

Also, some women may not leave out of love and loyalty to the husband, which
may override her pain and suffering. The decision to leave a person you care
about or love can be very difficult, even when the relationship is unhealthy or
violent. But it's the abuse that's wrong, not loving someone who is abusive. No
one deserves to be beaten or raped, and no one is required to live with fear and
violence. Everyone has the right to live in a safe home.

Marital rape and the UN1

Thus, as the human rights developed, the belief of a marital right to sexual relations
had become less widely spread. In December 1993, the United Nations High
Commissioner for Human Rights published the Declaration on the Elimination of
Violence against Women which consider marital rape as a human rights violation. In
1995, all countries represented at the U.N.s Womens Conference voted for a
resolution, which held that wives have the right to refuse the sexual demands of their
husbands.

In 2006, it was estimated that marital rape could be prosecuted in at least 104
countries. Western countries outlawed it mostly in the 1980s and 1990s. Some
developing countries outlawed marital rape in the 2000s. However, in many

1
http://www.wikigender.org/wiki/marital-rape/
countries it is not clear whether or not marital rape can be prosecuted under ordinary
rape laws. In many countries marital rape is either legal, or illegal but widely
tolerated as the husbands prerogative.

Difficulties in prosecuting marital rape

Firstly, the prosecution of marital rape is confronted to the reluctance of various legal
systems to recognize it as a crime.
Secondly, the prosecution of marital rape meets with problems on the procedural
level. When the case comes the Court, there are difficulties in proving that the rape
took place. The reason is that sexual relations are to be expected in a marriage.
Thus, if the defence claims consent from the victim, the evidences are very difficult to
provide.

Mr Cornelius Henry Mukiibi, an advocate and a lecturer in Criminal Law at Nkumba University,
thinks not only must a whole lot of evidence to support the oral statement be presented to prove
the use of force and absence of consent in marital cases if it were criminalised, but it would also
be a tough job to distinguish between genuine cases and those where disgruntled wives are trying
to settle scores.

Some of the evidence of force would be torn garments, bruises and scratches, a medical report
and evidence of STD contracted during forced encounter. Now imagine a case where the wife
sleeps unclothed, Mr Mukiibi says.

India is one of the 36 countries in the world where marital rape is legal.
Most of the countries where it is not considered a crime are in Asia, and none
of the Middle Eastern Countries recognise it as a crime.
If a woman is victim to marital rape, it would mean that she isnt raped once but there will be a
history of sexual abuse, and this can be proved by forensic evidence. There will be evidence of
Even if medical examination is inconclusive, it still
physical violence in forced rape.
cannot be used as an argument against criminalising the act as there are
other methods to prove it witness testimony, the wife recording her
husbands admission of guilt via electronic communication.

Husbands who rape their wives do not define themselves as rapists. According to them, they
give their wives a free hand to do as they please, and from where they stand, it, is more of
afailure on the woman's part to meet the contractual exchange of security and commitment
for freely available sex, hence he has reason to be angry. He does not consider her reasons
of ill-health, depression or his drunken state as valid reasons for her 'no'. When a woman
says 'no' to sex, it is considered as a challenge to the very notion of manhood around which
the society is centered. This challenge is then met by the prevalent legal system, and to Carol
Smart on the only criterion of whether consent or the lack of it is established. It is evident
from the Supreme Court's decision in Mathura's case 3that the law continues to informed
that the only way a man can understand the lack of consent is through resistance on the part
of the woman.

In U.S.A. federal states of Florida. Massachusetts, Kansas City and New York have
finally abolished the marital rape exemption.

Right to Bodily Self-Determination

The principle of "implied consent" in a marriage which bestows on man the legal licence to use and
control his wife's body to satisfy his whims deserves abandonment. "Sexual intercourse if actually
forced on a woman is a sadistic perversion that could as well be called "intra-vaginal masturbation".
This is a phrase which Menninger uses in connection with narcissism, it applies even more clearly
to rape". 21The right to sexual intercourse is not a husband's inherent right in marriage, for such a
"right" defeats the very concept of equality and human dignity. Consent must be arrived at by both the
husband and wife afresh each time, for if women are to be considered equal partners, sexual
intercourse must be considered as an act of mutual desire, an act of intense gratification for the man
and the woman and not as a "wifely duty" enforceable by the threat of bodily harm and the use of
force. Eliza Duffey, a 19th century feminist insisted that, "upon the 'right to self is based all the
happiness that can possibly be found in the marriage state. The wife's body is unqualifiedly her own -
a woman is no more bound to yield her body to her husband after the marriage between them than
before, until she feels that she can do so with the full tide of willingness and affection". 22 Social
purist writer Ida Craddock expresses similar views "never, never, never allow yourself to yield
to your husband's request for union," she advised women, "unless you yourself desire it. For a woman
to consent when she ds not desire union is to consent to unthinkable degradation, and it places her
below the harlot." It is very clear that sexual intercourse should be as agreeable as possible to both
parties. Indeed, when is otherwise to either party, it is cruelty.

Rights Articulation and the Movement

Though rights claims suffer from severe limitations, recognition of the right of bodily self-
determination for the woman and criminalising marital rape can be seen as a way to force men to
assume responsibility for their actions and free women from abuse and self-blame. It can serve as a
platform for feminist agenda and as a vehicle of consciousness raising. The movement must seek to
change police processes, develop legislation.., enforce victim's rights and increase a victim's
protection and legal options, 26 both at substantive and procedure levels. 27
In the ultimate analysis, amending the law - though not enough by itself- is a symbolic recognition of
the right of women to be treated with dignity; it is the articulation of a new gender ethic, which
emerges from the movement as an effort to imbue institutions with the experiences of women -
battered, raped and defiled. This gender ethic is part of a scheme of destabilisation rights 28 by which
individuals demand the disruption of established institutions and social practices which by their very
insularity have contributed to a scheme of social hierarchy, marginalising and dehumanising vast
sections of Society;
"Women know the world is out there. Women know the world is out there because it hits us in the
face. Literally. We are raped, battered, pornographed, defined by force, by a world that begins at least
entirely outside us. No matter what we think about it, how we try to think it out of existence or into
different shape for us to inhabit, the world remains real. Try it some time. It exists independently of
our will. We can tell it is there, because no matter what we do, we can't get out of it". 30
Only by developing a philosophy of and struggle for gender justice and by the articulation of a new
gender ethic can the movement change public consciousness, sensitise individuals to the issues that
don't just confront women but society at large - a society that has pledged itself to justice and equality
- and force individuals and institutions to treat violence against women in whatever form and in
whatever setting as a serious offence.

SUGGESTION
The most serious problem in criminalizing marital rape would be that it presupposes that the
family structure is disturbed. India is said to have a social order characterized by a strong
familial ties and a low divorce rate. Hence, criminalization of family problems would only
result in the complete breakdown of a home. Indian culture is vastly different from Western
society where marriage is a contractual and temporary phenomenon. Considering the
sensitive nature of the problem these types of offenses could be dealt with by the family
courts. it is not to be denigrated as a lesser offense due to widely dispensed myths. It is true
that marital rape is difficult to prove especially when both partners are known to have
voluntarily engaged in sexual activity in the past and the issue of consent arises at a later
point when there is non- consensual sex. The present need is for the legislature and the
judiciary to actively intervene in this area, by following the recommendations of the National
Commission for Women and the draft bill suggested by them, which should be implemented
along the lines of the Canadian model that combine marital rape with the offence of assault.
The existing legislations inhibit women from reporting crimes of sexual assault, and otherwise
curtail any effective exercise of rights to judicial redress.
Hence the urgent need to amend the existing provisions of the with regard to procedure
evidence, punishment and conviction to ensure that the sexual assault is perceived as a
social evil. In conclusion marital rape has to be regarded as sexual assault and Indian society
cannot continue to tread on women in the guise of promoting social cohesion and protecting
the sanctity of marriage.