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Table of Contents
1. Introduction:
a. Defining rape and marital rape
b. What does the IPC specifically criminalize?
2. Culture/society of India
3. Reasons why Marital Rape is not criminalized
a. Idea of marriage
i. Implied consent and contract theory
ii. Women as property
iii. Marital unity
iv. Public and Private divide
4. Why it should be criminalized
6. Reforms
7. Conclusion
1
According to Section 375 of IPC (Indian Penal Code) the rape has been defined as:
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:-
Thirdly- With her consent, when her consent has been obtained by putting her or any person in
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
stupefying or unwholesome substance, she is unable to understand the nature and consequences
2
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
(1) Whoever, except in the cases provided for by sub- section (2), commits rape shall be
punished with imprisonment of either description for a term which shall not be less than seven
years but which may be for life or for a term which may extend to ten years and shall also be
liable to fine unless the woman raped is his own wife and is not under twelve years of age, in
which case, he shall be punished with imprisonment of either description for a term which may
3
2. Culture/Society of India
India is probably the only country where husbands enjoy the status of a god; the idea of a pati-
parmeshwar (literally, ‘husband god’) manifests itself in inequitable ways in the dynamic
between a husband and his wife. Being part of this Indian culture, women accept and endure
abusive behavior by their husbands with extremely bad resignation. India feels some sense of
pride in having one of the lowest divorce rates in the world. Divorce is available as an option
mostly to women who are financially independent or to those who have the support of their
family. Research indicates that marital rape often has severe and long-lasting consequences for
women. The physical effects of marital rape may include injuries to private organs, soreness,
bruising, torn muscles, fatigue and vomiting. Women who have been raped by their husbands
may suffer other physical consequences including broken bones, black eyes, bloody noses, and
knife wounds that occur during the sexual violence. Specific consequences of marital rape
include miscarriages, stillbirths, bladder infections, infertility and the potential contraction of
sexually transmitted diseases including HIV1. Women who are raped by their partners are likely
to suffer severe psychological consequences as well. Some of the short-term effects of marital
rape include anxiety, shock, intense fear, depression, suicidal ideation, and post-traumatic stress.
Long-term effects often include disordered eating, sleep problems, depression, and problems in
sexual dysfunction, and emotional pain for years after the violence. And the woman has to live
There are many reasons which lead to non-criminalization of marital rape under Indian Penal
Code. The main of all is the idea of marriage. These reasons are briefly explained below:
• Implied consent and contract theory: The most common rationale for the marital rape
exemption is Hale's notion that a marriage constitutes a contract. According to him, there
is an implied consent and contract between husband and wife. The terms of this contract
state a women’s irrevocable consent to have sexual intercourse with her husband,
whenever he wishes. According to the theory of implied consent, marital rape can never
occur because all sexual contact within a marriage is assumed to be consensual. Under
the contract theory, as stated by Hale, when a woman marries, she forms a contract with
to have sexual intercourse with her wife. Here the consent of the wife does not matter as
2
Garg, Shivani, Marital Rape (September 4, 2012), http://dx.doi.org/10.2139/ssrn.2152311.
5
• Women as property: Another common law origin which was a building-block in the
foundation for the marital rape exemption was the idea that a husband owned his wife as
property. A husband was no more capable of raping her wife since he could not take what
he already owned. Since women were regarded as property, the common law treated rape
not as a crime against women, but rather as a violation of a man's property interest.
• Marital unity: A marital unity generally talks about the non-existence of woman as soon
as she gets married. It means that after marriage, the wife's identity merges into the
• Public and private divide: Marital rape cannot be considered real rape the argument
being that public law cannot enter the confines of the bedroom. There is a distinction
between a public and personal life and Law cannot interfere in someone’s personal
matters. Compulsory sexual relations in marriage are always advantageous to the male, as
he can muster up more resources - material and physical. It is not logical to consider that
law respects the public-private divide only in regard to the regulation of abortion and
unnatural acts but not marital rapes. Although it is also a very serious crime to be
considered.
6
4. Why it should be criminalized
Though the IPC is clear in that it does not criminalize marital rape and subsequent
amendment petitions have failed, it may be argued that the court decisions defining the
parameters in which rape can be found, can also be used to facilitate the argument to
criminalize marital rape. As discussed previously, the two major reasons for not
criminalizing are that proving that a rape has occurred in a marriage would be too difficult
and that criminalizing marital rape would negatively affect the sacred institution of marriage.
As to the former point, several court decisions in the late 20th century have systematical
reduced the burden on rape victims to prove their assault. As that is the case, there is no
reason why similar latitude should not be applied to cases in marital rape thereby making the
crime a little easier to prove. Additionally, the aspect of marital sanctity in the 21st century
has evolved and the application of it as a reason to not criminalize marital rape should be
seriously questioned.
The major question evaluated by the courts in cases of rape is whether the woman consented
to having sex. In the past, the main factor that prohibited all rape victims from having the
court rule in their favor was the fact that, as the plaintiff, the burden of proof was on the
woman to show that she did not consent. However, in the 1995 case of Karnel Singh v. State
of M.P.,thhe Court held that the woman should not be considered an accomplice of the crime,
7
but rather as the victim. As the victim, her testimony should not be considered with the same
amount of suspicion as you would the offender’s. 3 At present rape is one of the few crimes
in which the burden of proof lies with the defendant to prove that the woman did, in fact,
consent to the sexual act. As this burden has shifted for all unmarried rape victims, it is only
just that the same be applied to married victims as well. As far as proving rape, the burden
One of the problems that would still exist for all rape victims, even when the burden of
proof falls on the husband, is that of believing the woman’s testimony over that of her
husband. The principle that judges may use a woman’s past sexual history or her moral
character in determining the veracity of her testimony was overruled in Haryana V Prem
Chand.4 As this is the case for rape victims, the same should be allowed for marital rape
victims. Based on this principle, the idea that married women cannot be raped because they
have had a sexual history with their husbands is no longer valid. Regardless of a woman’s
past or her character, rape must be determined based on the particular facts of the incident.5
Additionally, the argument that a married woman’s testimony cannot be relied upon because
it may be tainted with malice is wholly unreasonable. The rape trial procedure, harsh cross
examinations and the general shame of publically admitting to have been raped, is an ordeal
3
(1995) 5 SCC 518
4
1990 AIR 538
5
Malik, Sumit. Reforming Criminal Law, New Trends in Rape Law 53
8
that most women would not put themselves through willingly. In fact, it would be much
The second issue faced by marital rape victims is that they generally do not have injuries
showing their resistance. One reason for this is because they feel overpowered by their
husband’s authority and submit to his will without putting up a physical fight.7 In the past,
courts had ruled that injuries were a significant part of determining whether or not the
woman has consented. In fact, in the Mathura case, the fact that she did not have any injuries
was treated as one of the conclusive pieces of evidence that she did not put up a fight and
therefore consented to the sex.8 However the Supreme Court has changed its opinion and
has held that injuries are not mandatory signs of resistance. In fact, it was ruled that in the
case of the accused being a person in uniform, a lack of resistance could not be construed as
sexual consent by the woman.9 Though this case was specifically dealing with a police
officer, the reasoning used was that the officer had so much authority over the woman as to
make her physical resistance not necessary. The same principle can be used to argue that in
marriage is so overwhelming as to make the wife’s physical resistance to his sexual advances
moot.
6
Garg, Shivani, Marital Rape (September 4, 2012),
http://dx.doi.org/10.2139/ssrn.2152311
7
The Dark Side of Families: Current Family Violence Research 126
8
AIR 1979 SC 185
9
Malik,
Sumit.
Reforming
Criminal
Law,
New
Trends
in
Rape
Law
54
9
Lastly, though the previously prohibitive issues of testimonial veracity and a lack of injury
may have changed slightly in the favor of marital rape victims, the underlying issue of
proving non consensual sex still remains difficult. However, this issue is not limited only to
married women. It is often the case that even in stranger rape, the presence of consent in
difficult to prove one way or another. It is somewhat more of an issue with married women
because some tend to “consent” or at least not resist due to socio economic conditions.
Specifically, they submit to the will of their husbands because the women are not only
physically weaker, but feel themselves to be weaker in a general sense. This thought it
perpetuated by the social conditions in most rural villages in India.10 Like single rape
victims, married women also submit in order to protect themselves from physical violence.
However, this is found to be even more relevant in the case of married women because they
have usually been subjected to domestic violence in the past, and know what their husbands
are capable of doing. Lastly, there is a tendency for married women to “consent” to having
sex because they feel that they deserve it. They feel themselves responsible for whatever ill
temper or marital dispute that may have initiated the rape. They also feel that it is their
responsibility to have sex with their husbands even when they do not want to.11 The notion
that neither the offender nor the victim understands that an offence against the human and
10
The Dark Side of Families: Current Family Violence Research 126
11
Id.
10
constitutional rights of the woman is being committed is not a valid excuse for legislation to
EPIDEMIC OF UNDER-REPORTING
In a conservative country like India, marital rape is too tricky to deal with. Indian society
is a dominant factor affecting the wife’s decision to stand-up for her rights. Two-thirds of
the married women in our country have been subject to rape, no matter what their socio-
economic condition is. Marital rapes usually go unidentified and unreported in many
parts of our country. There are several reasons for under-reporting of this the cases of
marital rape. Marital rape, in legal terms, means an act which is a result of coercion and
which is non-consensual. The various risk factors associated with marital rape are early
age of marriage, lack of social and legal support and lack of familiarity with the husband-
to-be. The survey conducted in the states of west Bengal and Gujarat observes that
perpetrated by their husbands12. Young women are not matured enough to be married and
understand the relation properly. In Law Commission's 1955 report on the Hindu
Marriage Act, they wrote "the essence of marriage is a sharing of common life, a sharing
of all the happiness that life has to offer and all the misery that has to be faced in life...
Living together is a symbol of such sharing in all its aspects. In today’s world, studies
indicate that between 10 and 14% of married women are raped by their husbands.
12
(IIPS
and
Population
council
2004)
11
Women do not even report these cases for the fear of husband’s family and domestic
violence by them. Wife is more likely to be advised to serve better the sexual needs of her
husband. Due to this dominant authority given to husband by our society, women feel
inferior and also are courageous enough to report these cases. A victim of marital rape is
not harmed just physically but also her self-respect is harmed, especially because the
From a study of 6600 married men between the age of 15 to 65 in UP, it was found
whether they had ever had sex with their wives “even if she was not willing’ and whether
they had ever ‘physically forced’ their wives to have sex. Study suggested that one third
of younger men and one quarter of older men reported having non-consensual sex with
their wives at some time in their married life. Men’s report of forced sex on their wives
underscore the likelihood of women under reporting marital rape cases. Lack of
familiarity with the husband-to-be because of early marriage and sometimes, marriage
without the consent of the girl can make the situation of non-consensual nature of sex
even worse. In a study in west Bengal young women who had an arranged marriage were
‘love’ marriage.13 Another risk factor associated is the lack of legal and social support.
Dependence of young women on their husbands may compromise their ability to prevent
non-consensual sex. They passively accept unwanted sexual relations for the survival of
her marriage and to have financial security. Data from the national family health survey
show that 62% of women who married at the ages of between 21 and 25 believed that a
13
Id.
12
husband is justified in beating his wife for certain reasons. The wife’s financial
independence plays a major role in aiding her to protect her body and her dignity.
REFORMS
There is a need to amend the existing provisions of the law with regard to procedure
evidence, punishment and conviction to ensure that the sexual assault is perceived as a
social evil. The under-reporting is possibly because of organizations that want to help,
but by making law more strict they cause more judges to no convict and therefore make
society think that women are lying about their rapes, which in turn make less women
want to report their cases for fear that they will be called liars as well. The 172nd Law
Commission report had made the recommendations for change in the law with regard to
rape such as rape laws should be made gender neutral as custodial rape of young boys has
been neglected by law. 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
recommended the deletion of section 376A, along with the marital exception to section
375, to avoid the discriminatory classification between an offending husband and other
offenders.
13
CONCLUSION
The immediate need is criminalization of marital rape under the Indian Penal Code. Mere
marital rape can only be achieved if the society challenges the prevailing myth that rape
by spouse is not significant. Something more is required to be done for sensitizing the
judiciary and the police. 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
The traditional concept of "marital privacy" is subversive of women's liberty and bodily
integrity. It is that very concept that makes it so difficult, even today, to get marital rape
14
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