Marital Rape as an archaic law in the 21st Century

-Adwait Kolwalkar, Student.

Abstract- Marital rape refers to unwanted forced sexual intercourse by a man on a woman in the
ambit of matrimonial relations. Although rape is a crime under Section 375 of the Indian Penal
Code defined Rape, India lacks the laws regarding to rape inside a matrimonial relationship. The
concept of marital rape has been overlooked in the past because it is considered that a man can
exert himself on his wife in the ambit of marriage would not classify as rape. This law was made
in 1860 and with the social change, marriage as a concept has changed i.e. it has been understood
that the sexual intercourse within both parties should be consensual otherwise it would amount to
sexual violence/rape. The paper also looks at the two important committee reports, 172nd and the
Justice Verma Committee. This paper talks about the laws of rape while concentrating on the
positions of laws of Marital Rape in India and compares it to other countries.

Key Words- Marital Rape, Sexual violence, Marriage.

Introduction

In India, marital rape exists de facto but not de jure.1 Marriage is a legally sanctioned union
usually between one man and one woman. Rape is one of the most heinous crimes committed
against women. Although, the law of rape is dealt within Indian Penal Code, 1860 marital rape
does not come within such ambit. Marital Rape is a taboo and not talked about much within the
Indian society. It occurs irrespective of age, social standing, education or race. Social practices
and legal codes in India mutually enforce the denial of women's sexual agency and bodily
integrity, which lie at the heart of women's human rights. Rape is rape. Be it stranger rape,
date rape or marital rape.2 The origins of the laws regarding the marital rape in our society come
from the idea that after the marriage, the woman gives the man irrevocable consent. One of the
cases in which we can understand this concept is how the adultery law in India was framed, it
was said that a woman having sexual intercourse outside marriage would have said to commit
adultery unless her husband consents to it. Adultery which was a crime until quite recently was

1
Saif Rasul Khan, Marital Rape: The Bitter Truth, International Journal of Law and Legal Jurisprudence Studies
:ISSN:2348-8212: Volume 2 Issue 4
2
Saurabh Mishra and Sarvesh Singh, Marital Rape — Myth, Reality and Need for Criminalization, (2003) PL
WebJour 12
repealed by the Joseph Shine judgement3 in which Dipak Misra CJI quoted John Stuart Mill who
stated that “The legal subordination of one sex to another – is wrong in itself, and now one of the
chief hindrances to human improvement; and that it ought to be replaced by a system of perfect
equality, admitting no power and privilege on the one side, nor disability on the other."

The concept of marital rape has come from the legal doctrine of coverture which mean whereby,
upon marriage, a woman's legal rights and obligations were subsumed by those of her husband,
in accordance with the wife's legal status of feme covert. This doctrine was quite popular in
England in the 19th century during the same time when the Indian Penal Code was enforced. This
view was further validated by Sir Matthew Hale in History of the Pleas of the Crown, where he
wrote that "The husband cannot be guilty of a rape committed by himself upon his lawful wife,
for by their mutual consent and contract the wife hath given up herself in this kind unto her
husband, which she cannot retract". Towards the starting of the 20th Century and with the
feminist movement getting its recognition, such concept was questioned.

The Supreme Court of India, in the case Independent Thought V. Union of India4, ruled out that
"sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married
or not" stating that the exception in the rape law was arbitrary and violative of the constitution.
In Sakshi v. Union of India5, the courts started that the foreign judgements which were quoted by
the petitioner could not be used to widen the scope of rape as defined in the Section 375 which
has been understood in that way for centuries. The question still arises about the married women
getting raped above 18 years. The law provides consent for sexual intercourse at the age of 18
years then what about the consent when a woman is above 18 and is married.

India is a country which for long has had a patriarchal mindset. Marriage is viewed as a
sacrament with the wife in a submissive position as that to her husband. This has been the
primary contention of the legislature in criminalizing Marital Rape as women in the sense have
to fulfill the “marital obligations” that is due by them to their husbands and hence not providing
women with the power to control marital intercourse.

3
Joseph Shine vs Union Of India (2018) SCC OnLine SC 783
4
(2017) 10 SCC 800
5
(2014) 5 SCC 518
Marital Rape is considered to be of three kinds6:

1. Battering Rape: Most marital rapes fall under this category. It is where a woman
experiences both physical and sexual violence. Generally this is coerced by altercation or
physical fight between the couples
2. Force-only Rape: In this type of marital rape, husbands use only that amount of force, as
it is necessary to coerce their wives. In such cases, battering may not be a characteristic
and women who refuse sexual intercourse usually face such assaults.
3. Obsessive Rape: In obsessive rape, assaults involve brutal torture and/or perverse sexual
acts and are most commonly violent in form. This type has also been labeled as sadistic
rape.

Present Legal Position

Marital Rape was defined in Nimeshbhai Bharatbhai Desai vs State Of Gujarat as “unwanted
intercourse by a man with his wife obtained by force, threat of force, or physical violence, or
when she is unable to give consent. It is a non-consensual act of violent perversion by a husband
against the wife where she is abused physically and sexually.”

Under the Indian Law, the second exception to Section 375 states that when the woman is
married and not less than fifteen years of age, sexual intercourse by the husband is not rape. The
case of Independent thoughts further made it from girls married upto the age of 18, but it is not a
significant step towards curbing marital rape. A bill introduced in 2014 in Rajya Sabha stated
that “The marital rape exception, which has been retained in the statute book for decades, is a
representation of our colonial past and the outdated conception of marriage in the Common Law
tradition which regarded wives as no more than the property of their husbands.”

In Bodhisattwa Gautam v. Subhra Chakraborty7, the Supreme Court said that; “rape is a crime
against basic human rights and a violation of the victim: most cherished of fundamental rights,
namely, the right to life enshrined in Article 21 of the Constitution.” It is quite evident that the
law making body is not abiding by the Court’s judgement even though the present law is in

6
Saif Rasul Khan, Marital Rape: The Bitter Truth, International Journal of Law and Legal Jurisprudence Studies
:ISSN:2348-8212: Volume 2 Issue 4
7
(1996) 1 SCC 490
violation of the basic structure of the constitution i.e. Article 21. The court held in Haree Mohan
Mythee8 case observed that husband does not have the absolute right to enjoy the person of his
wife without regard to the question of safety of her. The question of safety is quite vague and
needs to be defined correctly in order to see what constitutes as marital rape. The court observed
in the case of RIT Foundation v. The Union of India9, what may appear to be marital rape to an
individual wife, it may not appear so to others. The court further observed that merely deleting
Exception 2 of Section 375 of the Indian Penal Code would not serve any useful purpose because
rape as defined in Section 375 is not the same as marital rape.

The law was drafted in 1860 where a woman was considered under the chattel of her husband.
Many of the rights which were guaranteed to her now were not guaranteed at that time. In order
to understand the thought behind the existing laws, we will need to see the colonial era laws in
India and compare them with laws which are relevant at this date.

Protection of Woman from Domestic Violence Act, 2005 provides a civil recourse to crimes
against women including marital rape. It is quite unsatisfactory that violence against women
should be seen as a civil wrong rather than criminal offence. If marital rape is made into a
criminal wrong then it would act like a deterrent and prevent future crimes.10

Section 122 of the Indian Evidence Act states that the communication of husband and wife in a
matrimonial relationship is considered to be a privileged communication and hence they cannot
testify in a court except when one is accused of an offence committed to the other. Since marital
rape is not an offence, this is not applicable.

The Justice Verma Committee heeded the demand to criminalize marital rape. The Indian
Government however, chose to turn away from it as it has the “potential to destroy the
institution of marriage” and place the “entire family system under great stress.”

Article 2(a) of the Declaration of the Elimination of Violence against Women expressly states
that marital rape to be a form of violence against women.

8
(1890) 18 Cal. 49.
9
W.P.(C) No. 284/2015
10
Neeraj Malik, Marital Rape Laws and Women Security in India: A Critical Analysis, Global Journal For Research
Analysis, Volume-4, Issue-10, Oct-2015, ISSN No 2277 - 8160
Conclusion

Marital rape is one of the worst types of sexual violence occurring at the level of family11. It is a
social evil disguised under a taboo. It is evident that even though the majority of the learned
scholars are pro criminalization of Marital Rape, it will take time for it to be enforced in India.

The social institution of marriage is yet sacred in India and until we divide the crime from
sacredness, India will not be able to criminalize Marital Rape even though it does a considerable
social harm. The patriarchal mindset has taken over the point of a basic life necessity which is
the Freedom to live with Dignity under Article 21.

11
Dr. Vandana, Marital Rape - Exemption Under Indian Penal Code: Quest For Recognition And Liability, Winter
Issue 2017 ILI Law Review Vol. II