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MARITAL RAPE AS A GROUND FOR DIVORCE

Concept And Meaning Of Marital Rape.


Meaning Of Marital Rape.
The word rape has been primarily derived from the Latin term raptus which literally refers
to the act by one man of damaging or destroying the property of another man. 1 Here, property
primarily referred to wife or daughter of another man.
Marital rape, as the name suggests is rape caused to a spouse by her husband. It basically
refers to the actual use or threat of use of force by the husband against the wife to compel her
into sexual intercourse.2 This form of rape also known as conjugal rape or wife rape is also
said to have taken place when the wife is compelled to have entered into sexual intercourse in
a situation when she is unable to express consent.3 This roots back to that age of the history of
mankind, when women were considered to the property of their husband. This was also
covered by a legal principle of coverture which refers to the wife being covered by the spouse
once married, such that she is now his property.4 It denies a woman her bodily integrity thus
striking a blow at womens rights.5
The issue of marital rape is largely neglected. Patriarchal domination of the society has come
up time and again and has granted to the husbands exemption in cases of marital rape basing
on the assumption that the wife has given herself to the husband through the contract of
marriage.6 Modern leaders in support of the victims of marital rape, however, hold that
marital rape is also a form of rape and the marital status of the woman should have no bearing
1 Women And Gender In Medieval Europe: An Encyclopedia, Margaret Schaus, Taylor &
Francis, 2006, 695.
2 Marital Rape And The Indian Legal Scenario, Priyanka Rath, Indian Law Journal, 1.
3 Sex Crimes: Perpetrators, Predators, Prostitutes And Victims, Ronald B. Flowers, Charles
C. Thomas Publisher, 2006, 38.
4 Encyclopedia Of Rape, Merril D. Smith, Greenwood Publishing Group, 2004, 122.
5 Marital Rape- Myth, Reality And Need For Criminalization, Saurabh Mishra, Sarvesh
Singh, available at http://www.ebc-india.com/lawyer/articles/645.htm, last visited on March
28, 2016.
6 Home Truths About Domestic Violence, Jalna Hamner, Catherina Itzin, Routledge, 2013, 57.

on the culpability in the crime of rape.7 It is a form of rape that lays hidden under the cover of
marital privacy that gives both the husband and the wife, the right to protect the private acts
that they both enter with consent: it is not a guard to hide violent acts.8
Theories Of Marital Rape.
Various authors have over time come up with different theories regarding the occurrence of
marital rape in the society:
The Feminist Theory: this theory considers marital rape as a tool in the hands of the
patriarchal society that is used to exercise control over women. They consider that the
exemption given in cases of marital rape is a remnant of the earlier laws regarding women
that considered them to be the property of the husband.9 The feminists are of the view that
marital rape is nothing but a result of a power play by the male spouse in the marriage. 10
Radical feminists have gone to the extent of arguing that any form of heterosexual intercourse
is based mainly on the desire of the man and is another form of oppression on women.11
The Social Constructionism Theory: the believers in the theory of social constructionism are
of the view that men have dominated the society in law making and the political arena since
ancient days.12 Laws thus came as a reflection of the interest of men. Such laws considered
women to be their husbands property after marriage and hence, marital rape was considered
an offence of lesser degree as compared with rape. 13 Some jurisdictions even considered that
rape in a marriage is not rape at all. 14 The social constructionists believe that marital rape is a
7 License To Rape: Sexual Abuse Of Wives, David Finkelhor, Kersti Yiio, Simon and
Schuster, 1987, 3.
8 Confronting Rape And Sexual Assault, Mary Odem, Jody Warner, Rowman & Littlefield,
1998, 81.
9 Feminist Perspectives On Rape, Stanford Encyclopedia Of Philosophy, available at
http://plato.stanford.edu/entries/feminism-rape/, last visited on March 29, 2016.
10 Marital Rape In India: A Radical Feminist Perspective, Tamanna Khosla, Mainstream
Weekly, Vol III, 2.
11 Radical Feminism On Rape, Izvorni Znanstiveni, The Hebrew University, 507.
12 A Review Of Marital rape, Patricia A. Resick, Research Gate, 332.
13 Encyclopedia Of Victimology And Crime Prevention, Bonnie S. Fisher, SAGE, 2010, 721.

means through which men try to assert themselves over their wives so as to retain their long
gained power over their property.15
The Sex-Role Socialization Theory: these theorists believe that it is the particular gender roles
which guide the sexual interactions between the spouses in a marriage. In a marriage, women
are always taught to be calm and passive, submissive whereas, men are trained to be
dominant and aggressive.16 Care and love are attributed to women. Men, on the other hand,
are the major perpetrators of sexual entertainment with violent themes. 17 Sex role socialists
are of the view that marital rape is nothing but an expression of the traditional perceptions of
sex roles.18
Types Of Marital Rape.
Marital rape may be broadly classified in the following two categories:
Sexual coercion by non physical means- this form of coercion involves social coercion in
which the wife is compelled to enter into sexual intercourse by reminding her of her duties as
a wife. This form of coercion entails applying non physical techniques and tactics like verbal
pressure in order to get into sexual contact with a non consenting female. 19 The most
commonly used non physical techniques include making false promises, threatening to end
the marital relationship, lies, not conforming to the victims protests to stop, etc. 20 Such acts
of sexual coercion by the use of non physical stunts though considered less severe in degree
14 Encyclopedia Of Domestic Violence, Nicky Ali Jackson, Routledge, 2007, 466.
15 Proximate And Ultimate Explanations Are Required For A Comprehensive Understanding
Of Partner Rape, Aaron T. Goetz, Aggression And Violent Behaviour, Elsevior, 2.
16 A Review Of Marital rape, Patricia A. Resick, Research Gate, 332.
17 Social Perspectives On Violence, Thomas W Blume, Michigan Family Review, Vol. II, 3.
18 A Review Of Marital Rape. Aggression And Violent Behavior, Martin, E. K., Taft, C. T., &
Resick, P. A. (2007). 12, 329.
19 Understanding Perpetrators of Nonphysical Sexual Coercion: Characteristics of Those
Who Cross the Line, Sarah DeGue, David DiLillo, Violence and Victims, Springer Publishing
Company, 1.
20 You Would If You Loved Me: Toward An Improved Conceptual And Etiological
Understanding Of Nonphysical Male Sexual Coercion, Sarah DeGue, David DiLillo,
Aggression and Violent Behaviour, Elsevier Ltd., 517.

as compared with physically coercive sexual acts are widespread and pose a threat to
womens rights in the society.21
Forced sex- this involves the use of physical force to enter into a sexual intercourse with an
unwilling woman. It can be further classified into the following three categories:
Battering Rape- this form of marital rape involves the use of aggression and force against the
wife. The women are either battered during the sexual act itself or face a violent aggression
after the coerced sexual intercourse.22 The beating may also occur before the sexual assault so
as to compel her into sexual intercourse.23
Force Only Rape- in this form of rape, the husband does not necessarily batter the wife, but
uses as much force as is necessary to enter into sexual intercourse with the unwilling wife.24
Obsessive Rape- this form of rape involves the use of force in sexual assault compiled with
perverse acts against the wife.25 It involves a kind of sexual sadistic pleasure enjoyed by the
husband.26
Historical Background.
Once married, a man is bound by the duties of marriage to respect his wife and treat her with
dignity.27 The concept of matrimonial rape has evolved in the recent period. However, neither
in the past nor in the present have such laws been formed which prosecute a married man for
forcing her wife to have sex with him. Common law down not provide any remedy for such a
torture being caused to the woman, and says that a woman is obligated by the ties of the
marriage and thus has to provide her husband with everything that he asks for. Over the years
however, with the growing awareness of gender equality the common law as well has been
amended thereby criminalizing such activities. In the present scenario, the developed and the
developing nations have taken a step forward in protecting woman against such crimes.
21Supra Note 19, at Page No. 3.
22 Marital Rape: A Crime Undefined, Ayush Chowdhury, Academike, 6.
23 Fundamentals Of Criminal Justice: A Sociological View, Steven E. Barkan, Jones &
Barrett Learning, 2011, 83.
24Violence Against Girls and Women: International Perspectives, Janet A. Sigal, ABC-CLIO, 2013, 137.
25 When the Bedroom is the Crime Scene: Contextualizing Intimate Partner Rape, ProQuest, 2008, 119.
26 Family Violence: Legal, Medical, and Social Perspectives, Paul Harvey Wallace, Routledge, 2015, 355.
27 Marital Rape Under Indian Law: A Study, Mukesh Garg, IJMSS, Vol. 1, Page No. 2.

In India, marital rape is still not considered to be an offence. Despite many efforts put by the
law commission in its reports or bills brought up before the parliament, this horrendous act
which uproots the sanctity of a marriage, has not been declared as an offence. A married
woman in India has absolutely no laws to protect her and everything only depends upon the
interpretation of the courts.
Here arises a very important and necessary question as to why has India not developed any
laws with regards such matter which concern every Indian woman. The answer to this is that
for the framers of the legal grounds of India, abolition of dowry or untouchability were the
topics of priority, and subsequently several laws were formed on the same. As far as
discussions regarding the offence of marital rape are concerned, they never have been a
debate regarding abolishing such acts and nor have the courts been speedy and quick enough
to provide progress regarding this specific issue.
Thus, in India we see that the present scenario with regard to marital rapes is that the offence,
in a due facto manner exists in the legal regime but there has been no formal illegalisation
and criminalization of such offence. In other countries across the world however, such an act
has either been criminalized or the judiciary has been actively involved in bringing up
reforms in their laws with regard to marital rape.
The Hon'ble Supreme Court is of the view that rape is an act against humanity as a whole. 28
However, there was no mention as to what was court's stand with regard to the offence of
marital rape. Further, women who want to raise their voices against sexual violence do not
have a very strong law supporting and protecting them against the exemption that Sec. 375 of
the Indian Penal Code, 1860, which specifically states that a husband cannot be prosecuted
for forcing his own wife to have sexual intercourse.
However, of is not the case that there has been no progress with regard to criminalization of
such activities. The addition of Sec. 376-A is a step towards protecting woman from such
torture which criminalizes any sort of force to have sexual intercourse, used on wife who is
living separately. The husband can be fined and imprisoned to a maximum of two years.
An Analysis Of The Present Scenario Of Marital Rape and divorce.
Current Scenario of Laws In Relation To Marital Rape.

28 Bodhisattva Gautam v. Subhra Chakraborty, AIR 1996 SC 922.

Marital rape has been hinted in the Domestic Violence Act, 2005. The Act prohibits any form
of sexual abuse in a live in or marriage relationship. 29 However, this Act provides for civil
remedies only. Currently, in India, marital rape is not criminalized under the Indian Penal
Code, 1860(hereinafter referred to as the Code). Section 375 of the Code specifically
excludes acts of sexual violence in a marriage outside the purview of rape.30 However, under
Section 376 B of the Code a man is punished for forced sexual intercourse without the
consent of the judicially separated wife. Further, as also seen above, marital rape cannot form
a direct ground for divorce under different personal laws.
The provision for rape in the Code that clearly excludes marital rape from its ambit is
violative of the provisions of the Constitution of India. Art. 14 of the Indian Constitution
provides for equality of all persons before the law and prohibits any kind of state
discrimination. However, the Exception in Sec. 375 of the Code discriminates against married
women and does not qualify as a reasonable classification. It is thus, violative of the
protection granted by Art.14.
Further, Art. 21 of the Indian Constitution provides for right to life and such life includes the
right to live with dignity. Marital rape infringes upon the right of a woman to live with
dignity. Thus, the Exception to Sec. 375 of the Code is in clear violation of Art. 21 of the
Constitution.
Modern and Traditional Theories of Exemption of Marital rape.
Various theories have been put forward time and again to justify sexual abuse of a wife by her
husband and the non inclusion of marital rape as a ground for divorce:
Traditional Theories:
Contract Theory: Marriage is generally treated as a contract and one of the conditions of
such a contract involves the implied consent of the wife to fulfil the sexual needs of the
spouse as per his whims and fancies. This gives to the husband a marital right to enter
into sexual intercourse with his wife. The contract theory, though fraught with flaws has
survived for a considerable time period.31 According to this theory, there eists no concept
of marital rape because sexual intercourse between spouses is always considered
29 Sec. 3, Domestic Violence Act, 2005.
30 Sec. 375, Exception, Indian Penal Code, 1860.
31 Spousal Rape: The Uncommon Law, ABA Journal, 1980, 1088.

consensual.
Women Treated As Property: This theory was mostly followed in the common law
system. The basic presumption was that the husband was the owner of his wife and
therefore could not be said to rape his own property. As women were treated as property 32,
common law believed that non consent for sexual intercourse was violative of mans right
to property.
Marital Unity: Common law also believed that once married, the identity of a wife
merges with that of her husband and hence, the husband was considered unable to rape
himself. This theory considers the spouses to be a single entity.33
Modern Theories:
Less Serious: It is said that non marital rape is more serious as compared to marital rape.34
However, according to a survey by Joint Women Programme, in a group of seven married
women, at least one is raped and sexually harassed by her husband. Hence, the statistics
reflects a picture contrary to the belief.
Difficulty in proving: Marital rape, being a crime of personal nature is very difficult to be
proved. However, the Domestic Violence Act, 2005 provides for a list of crimes that are
personal in nature but are also punishable. Thus, this excuse of facing difficulty in
proving marital rape cases does not hold ground for exempting the same.
Possible abuse: The criminalization of marital rape is fraught with potential chances of
abuse of the law by wives with ulterior motives to cause hardship to their spouse.
Marital Rape and Divorce.
In order to break this legal deadlock, however, marital rape can be brought under cruelty and
hence can act as a ground for divorce. Cruelty refers to an intentional infliction of harm,
either mental or physical on a living being, especially a human.35 Also, the Indian Penal Code,
1860 explains cruelty as any act by the husband that drives the victim woman to commit
suicide or cause to her grave and serious injury, both mental and physical. 36 The landmark

32 Confronting Global Gender Justice: Womens Lives, Human Rights, Debra Bergoffen, Routledge, 2010, 288.
33 Family Law, Kelly Weisberg, Aspen Publishers, 2008, 84.
34 Domestic Violence: A Multi-Professional Approach For Health Professionals: A Multi-Professional
Approach For Health Professionals, Keeling, June, Mc-Graw Hill Education, 2008, 60.

35 Bryan A. Gaener, Blacks Law Dictionary, 9th Ed. , 2009, p.434.


36 Section 498A, Indian Penal Code, 1860.

case of Shobha Rani v. Madhukar Reddy37 observed that cruelty must be studied in light of
the conduct of one spouse towards another in a marriage and in the respect of marital
obligations.
It is herein important to note that all personal laws follow the fault theory of divorce. 38 This
theory is generally opted by a spouse who desires to be absolved by way of proving the fault
of the other spouse.39 The Hindu Marriage Act, 1955 provides cruelty as a fault ground for
divorce.40 So also, the personal laws provide cruelty as a ground for divorce including the
Special Marriage Act, 195441, the Dissolution of Muslim Marriage Act 42, the Indian Divorce
Act, 186943 and the Parsi Marriage and Divorce Act, 1936 44. Thus, in order to constitute
marital rape as a ground for divorce one has to resort to the ground of cruelty due to the
absence of a separate ground of marital rape.
Suggestions.
In spite of the present situation where marital rape is given little attention by the legal
fraternity, it is a serious offence which indignifies a woman. According to Indian law, a
woman under sixteen years of age having consensual sex qualifies to be a victim of rape.
However, a married woman even if compelled to enter into sexual intercourse is not said to
have been raped. The idea that a woman cannot seek legal protection on being forced by her
husband to have sexual intercourse is in itself is disturbing.
The United Nations through its Committee on Elimination of Discrimination Against Women
had brought about the recommendation that India must criminalize marital rape. The Justice
Verma Committee that was formed in light of the brutal Nirbhaya gang rape case criminalized
37
38 The Sex Right: A Legal History Of The Marital Exemption, Rebecca M. Ryan, American
Bar Foundation, Vol. 20, 946
39 Modern Hindu Law, Paras Diwan, 3rd ed., 62.
40 Sec. 13(1)(i-a), Hindu Marriage Act, 1955.
41 Sec. 27(1)(d), Special Marriage Act, 1954.
42 Sec. 2(viii), Dissolution of Muslim Marriage Act, 1939.
43 Sec. 10(1)(x), Indian Divorce Act, 1869.
44 Sec. 32(dd), Parsi Marriage and Divorce Act, 1936.

various sexual offences but the opinion that marital rape should be made illegal was
disregarded completely. This was solely based on the view of the parliamentarians that
criminalizing marital rape would bring under stress the institution of marriage and would go
against the principles of family harmony. Arguments have also been put forth that if a law
criminalizing marital rape is brought forth, it will be abused greatly.
Marital rape leads to the breakdown of the marriage and also destroys the sanctity of the
spousal relationship. Despite this situation, it is expected of the wife that she remains silent
and continues with the marriage. The worst disadvantage in this scenario is that the woman is
compelled to live with the husband, the rapist himself. Hence, there lies an urgent need to
bring about substantial changes with regard to the laws relating to sexual offences. For
instance, inequalities should be eliminated and gender neutral laws should be framed.
Women today who suffer from such crimes must be made aware of their rights and the
remedies available to them against such heinous acts. Women should raise their voice against
such mistreatment backed by support from the society. Indian culture has always emphasized
on equality, strength and not on abuse, control or power. It is therefore expedient to the need
for justice for women that the Indian judicial system criminalizes marital rape and includes it
as a fault ground for divorce. The researchers have come up with the following suggestions in
respect of the current scenario:

Marital rape must be criminalized under the Indian Penal Code, 1860. This must be done
by way of amending Section 375 of the Code, in light of the recommendations given by

the Justice Verma Committee.


The punishment for marital rape should be the same as provided for rape under Section

376 of the Indian Penal Code, 1860.


The husband should not be allowed to take the plea that there was a lack of resistance on

the part of the wife in a case of marital rape.


Marital rape should be included as a direct ground for divorce under all personal laws.
General awareness with regard to marital rape must be spread among the public.
The Court must carefully scrutinize the facts and circumstances of each case to find out if
there were circumstances that could lead to the victim being compelled to not raise her
voice against all harassment.

Conclusion.
The researchers have tried to provide an understanding as to the nature of the crime of marital
rape. This write up has not been restricted to the issue of marital rape as a ground for divorce.
Throwing light upon the relevant provisions of different divorce laws in the country, the
researchers have tried to point at the loopholes existing in the current system that follows the

archaic belief of non inclusion of marital rape as a ground for divorce. Further, another issue
at hand is the non criminalization of marital rape. These issues coupled together bring forth
the intention of the Legislature that indirectly promotes patriarchal supremacy in the society.
Apart from the legislative and legal justifications for the same, theorists all over the world
have also come up with various theories that justify the non criminalization of marital rape. In
India, some form of progress is seen in the form of the provisions of the Domestic Violence
Act that prohibits any form of sexual abuse in a marriage. However, this Act providing civil
remedies only is not a sufficient tool in the hands of the women. The Legislature must look
into the issue of enacting new laws and provisions for a crime as heinous as marital rape.