MARITAL RAPE AS A GROUND FOR DIVORCE

RESEARCH SUBMITTED IN PARTIAL FULFILLMENT OF THE SUBJECT

FAMILY LAW - I FOR OBTAINING THE DEGREE B.B.A. LL.B (Hons.) DURING
ACADEMIC SESSION 2019-20.

SUBMITTED BY

ARFATUL AZAM

ROLL NUMBER -2012

SUBMITTED TO

POOJA SHRIVASTAVA

FACULTY FOR FAMILY LAW – I

CHANAKYA NATIONAL LAW UNIVERSITY,

NAYAY NAGAR, MITHAPUR, PATNA – 800001.

August 2019.

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 TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................................... 2

DECLARATION ....................................................................................................................... 3

ACKNOWLEDGEMENT ......................................................................................................... 4

CERTIFICATE .......................................................................................................................... 5

I. MARITAL RAPE – AN INTRODUCTION .......................................................................... 6

1.1 Rape............................................................................................................................. 6

1.2 Marital Rape ................................................................................................................ 6

1.3 Key Constituents of Marital Rape ............................................................................... 6

1.4 Legal Position of Marital Rape Under the Indian Law ............................................... 6

1.5 Types of Marital Rape ................................................................................................. 7

1.6 Justification of Marital Rape Exemption .................................................................... 7

1.7 Aims and Objectives ................................................................................................... 9

1.8 Hypothesis ................................................................................................................... 9

II. DIVORCE RELATED PROVISIONS FOR WIFE IN DIFFERENT PERSONAL LAWS

.................................................................................................................................................. 10

2.1 Grounds for divorce under the Hindu Marriage Act, 1955 ................................... 10

2.2 Grounds for divorce under the Indian Divorce Act, 1869 ..................................... 12

2.3 Grounds for divorce under the Muslim Marriage Act, 1939 ................................. 12

2.4 Grounds for divorce under the Parsi Marriage and Divorce Act, 1936 ................. 13

III. PRESENT PROVISIONS REGARDING MARITAL RAPE ........................................... 14

IV. ROLE OF JUDICIARY ..................................................................................................... 17

V. CONCLUSION AND SUGGESTION ............................................................................... 20

BIBLIOGRAPHY .................................................................................................................... 22

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 DECLARATION

I hereby declare that the project entitled “Marital Rape As a Ground For Divorce” submitted
by me at Chanakya National Law University is a record of bona fide project work carried out
by me under the guidance of our mentor Mrs. Pooja Shrivastava. I further declare that the work
reported in this project has not been submitted and will not be submitted, either in part or in
full, for the award of any other degree or diploma in this university or in any other university.

ARFATUL AZAM

Roll Number – 2012

B.B.A. LL.B (Hons.)

Session – 2018-23

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 ACKNOWLEDGEMENT

It is a fact that any research work prepared, compiled or formulated in isolation is inexplicable
to an extent. This research work, although prepared by me, is a culmination of efforts of a lot
of people who remained in veil, who gave their intense support and helped me in the completion
of this project.

Firstly, I am very grateful to my subject teacher Mrs. Pooja Shrivastava, without the kind
support and help of whom the completion of this project was a herculean task for me. He
donated his valuable time from his busy schedule to help me to complete this project. I would
like to thank him for his valuable suggestions towards the making of this project.

I am highly indebted to my parents and friends for their kind co-operation and encouragement
which helped me in completion of this project. I am also thankful to the library staff of my
college which assisted me in acquiring the sources necessary for the compilation of my project.

Last but not the least, I would like to thank the Almighty who kept me mentally strong and in
good health to concentrate on my project and to complete it in time.

I once again thank them all…

ARFATUL AZAM

ROLL NUMBER – 2012

B.B.A. LL.B (Hons.)

SESSION – 2018 – 2023.

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 CERTIFICATE

This is to certify that the project report entitled “Marital Rape As a Ground For Divorce”,
submitted by Arfatul Azam in partial fulfilment of the required for the award of degree of
B.B.A. LL.B(Hons.) to Chanakya National Law University, Patna is a record of the candidate’s
own work carried out by him under my supervision. The matter embodied in this project is
original and has not been submitted for the award of any other degree.

Date - ______/______/2019.

Pooja Shrivastava

Faculty for Family Law - I

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 I. MARITAL RAPE – AN INTRODUCTION
1.1 Rape
Section 375 of Indian Penal Code Under Family Law defines rape as a criminal offence wherein
a male makes sexual intercourse/contact with a female forcibly without the consent of female
or will be enforcing pressure, threats, violence, abuse, molestation, etc… Irrespective of
attaining the age of majors or being in the minors, a rape is termed as a criminal offence in the
eyes of law1.

1.2 Marital Rape

Marital Rape or rape in marriage or spousal rape refers to unwanted and non-consent sexual
intercourse by a man with his wife wherein the man dominates, pressurizes and threatens his
wife subjecting with the physical violence, force, fear generations, etc… Marital Rape is a non-
consensual act of violent perversion undertaken by a husband against his spouse.

1.3 Key Constituents of Marital Rape

Following are the key constituents of marital rape

• Forced sexual activity along including intercourse, anal sex, oral sex, forced sex or any
physical activity that leaves the victim in a painful state.
• In a situation where in a woman is asleep or unconscious.
• Subject the victim to domestic violence, physical abuse, force, threat, etc…

1.4 Legal Position of Marital Rape Under the Indian Law

• Section 3752 identifies rape as a criminal offence and subjects the accused for being
punished in the eyes of law.
• However, section 3763 has defined Marital rape in an altogether different position.
• As per the section, the accused will be punished for a term not less than 7 years. Also,
it can be changed into a life imprisonment or can be extended to 10 years.
• Ironically, the Law Commission of India does not recognize marital rape as a criminal
offence.
• Moreover, in the year 2005, the act passed for the protection of women from domestic
violence Act, 2005 did not consider or subject marital rape as a criminal offence instead
it was termed as a form of domestic violence.

1
Section 375, Indian Penal Code, 1860.
2
Indian Penal Code, 1860
3
Indian Penal Code, 1860

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 • However, under the Domestic Violence Act, 2005, the woman who has been a victim
of marital rape can approach the court for getting a legal separation from the husband.

1.5 Types of Marital Rape

There are three kinds of marital rapes;

1. Force-only Rapes- The husband uses only enough force to coerce the wife to
intercourse.
2. Battering Rapes- Women are raped and simultaneously battered by their husbands-
beaten, slapped, pushed, shoved etc. In battering rapes, women experience both
physical and sexual violence.
3. Sadistic/ Obsessive Rape- These involve torture and/or other perverse sexual acts.
Pornography is frequently involved in sadistic forms of rape.

1.6 Justification of Marital Rape Exemption

Traditional Justifications

The traditional justifications, as have been given by various theorists and jurists, are discussed
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. The terms of this contract include a wife’s irrevocable consent to have
sexual intercourse with her husband, whenever he wishes. This has fostered the notion that a
husband has a “marital right” to sexual intercourse. According to the theory of implied consent,
marital rape can never occur because all sexual contact within a marriage is assumed to be
consensual. The contract theory, also based on Hale’s statement, is intertwined with the implied
consent theory. Under the contract theory, Hale stated that when a woman marries, she gives
up her rights to her body because she has formed a contract with her husband that cannot be
retracted. And this ‘contract’ justifies any forceful demand of sex from the husband.

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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 chattel. Since a husband could not
take what he already owned, a husband was no more capable of raping his wife than an owner
was of stealing his own property. 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.
The rape laws were concerned with protecting a husband’s property interest in his wife’s
fidelity, and a father’s interest in his daughter’s virginity.

Marital Unity

The final common law rationale for the marital rape exemption was that, upon marriage, the
wife’s identity merged into the existence of her husband. In 1765, Blackstone stated “by
marriage, the husband and wife are one person in law: that is, the very being or legal existence
of the woman is suspended during the marriage, or at least is incorporated and consolidated
into that of the husband; under whose wing, protection and cover, she performs everything….”
This became known as the marital unities doctrine, which provided that a woman could not
own property, make contracts, or take part in litigation. This doctrine made the rape of a woman
by her husband a legal impossibility since a man could not rape ‘himself’’. [26]

Modern Justifications

In addition to the traditional justifications, as discussed above, the following modern

justifications have also arisen.

Not as Serious as Non-Marital Rape

It has been suggested that marital-rape is not as serious a crime as non-marital rape and is not
common. But a survey conducted by the Joint Women Programme, an NGO found, one out of
seven married women had been raped by their husband at least once, and hence the frequency
points out otherwise.

Impossible to Prove

Defendants of the exemption to marital-rape have also pointed out that marital-rape would be
a crime so personal in nature that it would be difficult to prove. However, crimes such as
treason and incest also require a great degree of proof, and this hasn’t meant that the law should
overlook their criminality. And also, The Protection of Women from Domestic Violence Act,

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2005 lists out crimes, otherwise personal in nature, as punishable. Thus such a justification to
not provide for marital rape is unjust.

Possible Abuse for Ulterior Purpose

Also provided as a justification to the exemption to marital rape is that women would
incriminate their husbands for ulterior purposes. Though it is a comparatively reasonable
justification as has been witnessed in the cases relating to Dowry, where misuse of sec. 498(A)
of the Indian Penal Code, 1860 but the legal framework is designed to identify false claims,
and hence abuse cannot be speculated unless legislation for marital rape is put into force

Sacred Institution of Marriage

The intervention that law should not involve itself in the sacred institution of marriage is a bad
justification. In today’s age of personal laws, when divorce and separation are approachable
through the court of law, there goes without a say that this justification stands void. Also, the
interference of law is less detrimental to a marriage where non-consensual sex is already
causing damage- as the guardian of the right to life, the law has a valid interest in addressing
violent sexual acts, and therefore, its ‘interference’ in dealing with marital rape is entirely
justified.

1.7 Aims and Objectives

a) To understand the concept of marital rape

b) To know the position of Marital rape as a ground for divorce

c) To understand the role of judiciary in the process of interpreting marital rape

1.8 Hypothesis
The researcher aims to prove that the position of marital rape as a ground for divorce in India
is yet not incorporated and hence the researcher has validated this hypothesis in the research
paper and has suggested the need to form one law.

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 II. DIVORCE RELATED PROVISIONS FOR WIFE IN DIFFERENT PERSONAL
LAWS
A cursory glance at the Indian legislative setup with respect to marriage and divorce laws
reflects that marriage in India can be dissolved based on two grounds, either by mutual consent
or by contested divorce. Divorce petitions filed under the former category need to be coupled
with the consensus of both the parties with respect to the amount payable as alimony or
maintenance and the over the matter of child custody. Whereas in the latter category where
mutual consent lacks, there are several grounds on which a divorce petition can be filed. In the
Indian legislative setup, due to the secular mindset, people belonging to different religious
faiths are governed by separate laws on marriage and divorce. Therefore, Hindus, Muslims and
Christians are governed by separate personal laws.

2.1 Grounds for divorce under the Hindu Marriage Act, 1955 4

Judicial Separation and Divorce is defined under Section 10 and 13 of the Hindu marriage Act,
1955 respectively. A petition for divorce can be made by either of the parties by specifying the
ground on which decree of divorce can be passed. After passing of the decree for judicial
separation, it will no longer be obligatory for the petitioner to live with the respondent in future.
According to it, there are several grounds over which a solemnised marriage can be dissolved.

Firstly, if the other party, after the solemnisation of marriage had sexual intercourse with any
person other than his or spouse or in other words has committed adultery, then a valid ground
for divorce exists. An amendment brought by this law in 1976 specifies adultery need not be
continuous in its course of occurrence. Even a single act of indulging in a sexual relationship
with another person shall be enough under this section.

Secondly, if after the solemnisation of marriage, the petitioner has been treated with cruelty,
mental or physical, being dangerous for his/her life, limb or health then a petition for divorce
can be filed. Unlike adultery, under this ground, it is important that a series of acts be committed
in furtherance of cruelty. Such acts may include denial of food, continuous ill behaviour or
maltreatment, continuous demand for dowry etc.

Thirdly, if any one of the spouses has deserted the other for a period not less than two years,
and the desertion of the petitioner by the respondent was without a reasonable cause and

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absence of consent or against the wishes of the former then the other partner can file a petition
for divorce on the ground of desertion.

Fourthly, if any one of the partners converts his or her religion and has ceased to be a Hindu
then the other partner can file a divorce based on this ground of conversion.

Fifthly, a divorce petition can be filed if one of the partners is suffering from a terminal or an
incurable or a venereal disease which is easily communicable or mental disorders. Sexually
transmitted diseases like HIV-AIDS can be accounted as venereal diseases. The concerned
disease should be of such a kind that that the petitioner could not be reasonably expected to
live with the respondent. Mental disorders under this section could be of such a kind which
may include mental illness, arrested or incomplete development of mind, psychopathic disorder
or any other disorder or disability of mind or schizophrenia. Psychopathic disorders may
include continuous disorder or disability of mind which causes abnormal, aggressive or
irresponsible conduct of the other party.

Sixthly, a divorce petition can be filed on the ground that the respondent has renounced the
world affairs by embracing a religious order.

Seventhly, if after the passing of the decree of judicial separation, there has neither been a
resumption of cohabitation between the two parties nor observance of conjugal rights for
a period of one year or more, it becomes a ground for divorce.

Eighthly, if either of the partners is not heard of being alive by those persons who would
naturally have heard of it for a period of seven years or more, a divorce petition can be filed.

Apart from these grounds, there are several other grounds under the Indian statute that provide
for additional grounds for divorce. An important distinction between the former category of
grounds and the grounds of divorce under the present heading is that these grounds are available
to wives only. They consist of firstly, indulgence of the husband in rape or sodomy, secondly,
if a marriage has been solemnized before the Hindu Marriage Act, and the husband has
remarried in spite of the fact that the first wife was alive then the first wife can file a divorce
petition, thirdly, if a girl has been married before the attainment of 15 years of age and
renounces her marriage before she has attained 18 years of age, fourthly, in cases of non-
cohabitation for a period of one year and the husband has neglected the judgement of fulfilling

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the maintenance awarded to the wife by the court. Considering any one of the above grounds,
a wife can file a divorce petition.

2.2 Grounds for divorce under the Indian Divorce Act, 1869 5

Under the said legislation following are the grounds on which a divorce petition can be filed.
According to Section 10, a husband may file a petition for dissolution of marriage on the ground
that since the solemnization of marriage, the wife has been guilty of adultery. Under the same
section a wife can file divorce petition on the ground that her husband has converted his religion
from Christianity to any other religion and has married another woman or is guilty of incestuous
adultery or bigamy coupled with adultery or is guilty of rape, sodomy or bestiality or is guilty
of cruelty or has committed adultery coupled with desertion without providing a reasonable
excuse for two years or more. Apart from this there are certain additional grounds available
under this act where any one of the partners can file a divorce petition such as one of the
partners suffering from mental illness, leprosy or a communicable or lethal disease for two
years before the filling of the petition of divorce or non-observance of conjugal rights and their
corresponding restitution for a period of two years.

2.3 Grounds for divorce under the Muslim Marriage Act, 1939 6

Under the Muslim Marriage Act of 1939, any woman married under the Muslim law can claim
for a divorce if any one or more of the following grounds are fulfilled. Firstly, if the
whereabouts of the husband are not known for a period of four years, secondly, the husband
has not paid or neglected the payment of maintenance for a period of two years, thirdly, the
husband has been convicted and sentenced for a term exceeding seven years, fourthly, the
husband has failed to comply with his marital obligations for three years, fifthly, it is found
that the husband was at the time of solemnization of marriage and continues to be impotent,
sixthly, insanity or suffering from leprosy for a period of two years, seventhly, if it is found the
husband is guilty of cruelty i.e. prevents his wife from exercising her legal rights or disposes
off her property or does not respect her equally in cases where he has more than one wives or
restrains her from following her religious practices or habitually assaults her etc., eighthly, if a

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girl has been married before fifteen years of age and has decided to renounce her marriage
before attainment of eighteen years of age. In addition to all these grounds a necessary
condition which exists with respect to this section is that the marriage should not have been
consummated.

2.4 Grounds for divorce under the Parsi Marriage and Divorce Act, 1936 7

Section 32 of the Parsi Marriage and Divorce Act, 1936 lays down the grounds of divorce with
respect to parties belonging to the Parsi community. Under this section, any married person
can claim divorce against his or her partner if any one or more grounds stand to be fulfilled.
The grounds for divorce under this section are first, that the marriage has not been
consummated within one year of solemnization of marriage due to wilful denial on the part of
defendant to consummate it; secondly, at the time of marriage the defendant was of unsound
mind and remains so till the date of filing of petition, provided that the plaintiff was not aware
of this fact at the time of marriage and that the divorce petition has been filed within three years
of marriage. Also this mental disorder should be of such a kind that it cannot be reasonably
expected on the part of plaintiff to live with the defendant; thirdly, the wife is found to be
pregnant by a man other than her husband provided that the husband was unaware of this fact
at the time of marriage and on realisation has restrained himself from any sexual intercourse
with his wife; fourthly, the defendant is guilty of cruelty, adultery, bigamy, rape or any
unnatural offence; fifthly, the defendant has caused grievous hurt, infected the plaintiff with
some venereal disease or the husband has compelled his wife to enter prostitution; sixthly, the
defendant is convicted and undergoing a sentence of more than 7 years; seventhly, desertion;
eighthly, the defendant has converted his religion and has ceased to be a Parsi.

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 III. PRESENT PROVISIONS REGARDING MARITAL RAPE
According to the Ministry of Home Affairs, a crime is committed against a woman in India
every three minutes. The National Crime Records Bureau reports 1,85,312 crimes committed
against women in 2007 – 75,930 of which were considered to be of domestic violence (Cruelty
by husband or relatives)8. Torture and molestation were the most widespread felonies. The
actual figure could be ten times higher as many cases go unreported with victims unwilling to
speak out, fearing the shame and stigma associated with being a divorced or separated woman
in traditional Indian society. While attitudes towards women in educated, urbanized areas have
improved, those of rural India remain unenlightened. Both men and women see violence as a
part of gender relations. The UNFPA report found that some 70 percent of Indian women
believed that wife-beating was justified under certain circumstance, such as refusal to have sex
or for not preparing food on time Approximations have quoted that every 6 hours; a young
married woman is burnt or beaten to death or driven to suicide from emotional abuse by her
husband.

In the present day, studies indicate that between 10 and 14% of married women are raped by
their husbands: the incidents of marital rape soars to 1/3rd to ½ among clinical samples of
battered women. Sexual assault by one’s spouse accounts for approximately 25% of rapes
committed. Women who became prime targets for marital rape are those who attempt to flee.

And even with the implementation of Protection of Women from Domestic Violence Act, 2005,
marital rape continues to go largely unreported and usually comes out as figures in covert polls
conducted by agencies like the one carried out by AC-NIELSEN ORG-MARG for India
Today’s annual sex-survey which reports that 46% of Indian women have, at some point of
married life, undergone some form of sexual abuse- including marital rape.

3.1 Legal Position in India

The Personal Law Aspect

Marriage has always been thought of as a social institution, and thus there has always been a
social interest in protecting and preserving it, it cannot be dissolved like any ordinary contract.
There are specific theories that govern the grounds on which divorce may be sought, and unless
the ground is appropriated under these theories and expressly enumerated under the various
Personal Laws governing the Mohammedans, Hindus, Christians and Parsis, the Court cannot

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pass a decree for marriage. The grounds on which the divorce is granted are generally
categorized into the following theories9;

Offence/Guilt or Fault Theory: If either of the parties is guilty of committing any matrimonial
offence, the aggrieved party is entitled for divorce. The other party is supposed to be innocent.
For instance if one of the parties committed adultery or treated the other party with cruelty or
deserted the other party, the other party is entitled for divorce.

Consent Theory: This theory is based upon the premises that the marriage is entered into by
the parties out of their free consent and volition and hence they must also be free to put an end
to the marriage if both of them agree.

Breakdown Theory: This theory provides that if the marriage is irretrievably broken down
and became a wreck, leaving no substance in the marriage except the form, the parties must be
free to put an end to the marriage.

Under the current set of guidelines provided under the Personal Laws for divorce, marital rape
is not included in any of the Personal Laws. The grounds for divorce include cruelty however
marital rape doesn’t come under the ambit of cruelty- and surprisingly so.

3.2 The Protection of Women from Domestic Violence Act, 2005

Protection of Woman from Domestic Violence Act, 2005- Protection of Women from
Domestic Violence Act, 2005 offers civil remedies for crimes against women including marital
rape; it provides protection against domestic violence and sexual perversions.[xvii] 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.

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 3.3 Law Commission Report-
In the 42nd Report by the Law Commission it was recommended that criminal liability should
be attached to intercourse of man with his minor wife. However, the Committee refused the
recommendation stating that husband cannot be guilty of raping his wife of whatever age since
sex is a parcel of marriage. Further in 1983 with addition of Section 376A IPC, rape of
judicially separated wife was criminalised.

Even the Justice J.S. Verma Committee Report recommended that exceptions allowing marital
rape should be removed. It also included that marriage or an intimate relationship should not
be mitigating factor in reducing sentences for rape. Till now, this has been the only major
recommendation made by any of the committee on marital rape.

3.4 Criminal Amendment Act, 2013

The recent Criminal Amendment Act, 2013 satisfies some of the requirements that were
proposed in the Law Commission Report in 172nd Commission.[xviii] Section 375 has been
expanded and the definition of rape under sub-section (a) states that rape includes penetration
of penis in the mouth, urethra or anus of a woman against her will.[xix] Further by addition of
Section 376A, 376B, 376C and 376D rape laws have been made more stringent.

Even though there are many positive reforms brought by Criminal Amendment Act, 2013 yet
it has a number of shortcomings. One of them being non-inclusion of marital rape within the
ambit of the definition of rape. Various criminal law reports and recommendations given by
Justice J.S. Verma Committee have fallen on deaf ears and it should be realised that punishment
of marital rape is important to protect the woman.

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 IV. ROLE OF JUDICIARY
4.1 Present Scenario
The role of Indian Judiciary in case of Marital rape is silent . Whereas the Parliament is to make
law and judiciary is to interpret. The judicial activism by the judiciary is silent in the matter of
the crucial act over the married women -The marital rape ,even the judiciary is of the view that
a husband can have forced sex with his wife. The Delhi High Court on February 2015 and The
Kerala High Court on October 2015 refused to entertain a PIL challenging a provision section
375 exceptional clause as unconstitutional. Even though there have been massive protests
against rape all over the country .Special Fast Track Court in New Delhi has ruled that
intercourse between husband and wife, even if forcible, is not rape. Further the judgment came
from Additional Sessions Judge, Virender Bhat, in October last year stated a controversial
statement that “girls are morally and socially bound not to indulge in sexual intercourse before
a proper marriage, and if they do so, it would be to their peril and they cannot be heard crying
later that it was rape.”

These cases show rape in marriage is not an offence , and to be notable- even rape outside
marriage will not a rape if the rapist marries the victim ,this subject is came arise from Justice
Devadass judgement in madras high court bench, he granted bail to the rapist to’ mediate’ with
the victim. Later supreme court judgement ruled that out, “as under no circumstances rape case
can be compromised”. If not the marriage after rape will the remedy to the victim of rape.

Although the marital rape is not a ground for divorce in India yet the judiciary has granted
divorce under cruelty making this under the ambit of cruelty through interpretation of various
case laws;

In Francis Corallie Muin v. Union Territory of Delhi case, the idea of right to life under Article
21 of the Constitution was highlighted. As per this case Article 21 incorporates the right to live
with human dignity and all that accompanies it, to be specific, the minimum essentials of life,
for example, adequate nutrition, clothing and shelter over the head and facilities for reading,
writing and expressing oneself in diverse forms, freely moving about and mixing and mingling
with fellow human beings. The right to live with human dignity is a standout amongst the most
fundamental component of the right to life which perceives the independence of a person.

The Supreme Court has held in a catena of cases that the offense of rape abuses the right to life
and the right to live with human dignity of the victim of the crime of rape. One such example

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is The Chairman, Railway Board v. Chandrima Das. The Supreme Court has observed that rape
is not merely an offence under the Indian Penal Code but is a crime against the society as whole.

In Bodhisattwa Gautam v. Subhra Chakraborty court held that rape is to a lesser degree a sexual
offense than a demonstration of hostility gone for corrupting and mortifying the ladies. In this
manner the marital exception principle is violative of spouse's entitlement to live with human
dignity. Any law which damages ladies' entitlement to live with dignity and gives spouse
appropriate to drive wife to have sexual intercourse without her will is along these lines
unlawful.

4.2 Right To Sexual Privacy

Right to privacy is not mentioned in the Indian Constitution. Nevertheless, in a series of cases
like Kharak Singh v. State of U.P. ; Govind v. State of Madhya Pradesh, ; Neera Mathur v.
LIC etc, the Supreme Court has perceived that a right to privacy is intrinsically ensured under
extent of Article 21. The Right of Privacy under Article 21 incorporates a right to be allowed
to sit unbothered and not aggravated. Any type of intense sex damages the right of protection,
sexual security. It is presented that the teaching of marital exclusion to rape damages a wedded
lady's entitlement to protection by driving her to go into a sexual relationship without wanting
to.

In the case of State of Maharashtra v. Madhkar Narayan the Supreme Court has held that every
woman is entitled to her sexual privacy and it is not open to for any and every person to violate
her privacy as and whenever he wished. In the landmark case of Vishakha v. State of Rajasthan
the Supreme Court extended this right of privacy in working environments also. Further, along
a similar line we can translate that there exists a right of privacy to go into a sexual relationship
even inside a marriage. Subsequently by decriminalizing rape inside a marriage, the marital
exception teaching damages this right of privacy of a wedded lady and is consequently is
illegal.

4.3 Right To Bodily Self- Determination

The privilege to substantial self-assurance can likewise go under the ambit of Article 21 in spite
of the fact that the Constitution does not explicitly remember it, such a correct exists in the
bigger system of the right to life and personal liberty. The idea of right of self-assurance
depends on the conviction that the individual is a definitive chief in matters intently connected
with her/his body or prosperity and the more private the decision, the more vigorous is the
privilege of the person. There will be the main creators of his own destiny which decides his

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reality. Sexual relationship is a standout amongst the most individual decision that a lady holds
for herself. Decisions identified with sex is a type of self-expression and self-assurance. On the
off chance that the law tries to take away the privilege of communicating and repudiating such
assent certainly denies a lady her protected right of real self-assurance. In this way, It is
presented that the marital exclusion principle successfully denies a wedded lady her entitlement
to substantial to self-assurance and meddles in her most individual decision making.

4.4 Judicial Stand

he Supreme Court, in State of Maharashtra vs. Madhukar Narayan Mandikar has alluded to one
side of security over one's body. What is tragic here is to watch how court has advantageously
put spouse out and has yet not given her protection over her own body while ladies who have
been subjected to rape by stranger have that perfectly fine is criminalized however not marital
rape. For this situation it was chosen that a prostitute has the right to deny sex on the off chance
that she was unwilling.

In Sree Kumar vs. Pearly Karun, the Kerala High Court watched that the offense under Section
376A, IPC won't be pulled in as the spouse is not living independently from her husband under
a declaration of partition or under any custom or use, regardless of the possibility that she is
liable to sex by her better half without wanting to and without her assent. For this situation, the
spouse was subjected to sex without her will by her husband when she went to live respectively
with her husband for 2 days as result of settlement of separation procedures which was going
ahead between the two parties . Subsequently the spouse was held not liable of raping his wife
however he had done as such.

The judiciary appears to have totally consigned to its benefit rape inside marriage is impractical
or that the disgrace of assault of a lady can be rescued by getting her hitched to the attacker.

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 V. CONCLUSION AND SUGGESTION

While getting married under any religion, may it be Hinduism, Christianity, Islam or any other
religion practiced across the nation, certain vows are exchanged- about trusting each other,
living for each other with respect protecting each other’s dignity and never compromising on
the sanctity of marriage. Marriage is not just an institution; it is solemnizing of coming together
of two persons. And under these circumstances, protecting the interest of the parties to a
marriage is imperative.

Marital rape is no less an offence than murder, culpable homicide or rape per se. It denigrates
the honour and dignity of a human being and reduces her to a chattel to be utilized for one’s
self convenience and comfort. It reduces a woman to a corpse, living under the constant fear
of hurt or injury. Medical evidence proves that rape has severe and long lasting consequences
for women.

• Physical injuries to vaginal and anal areas, lacerations, soreness, bruising, fatigue,
vomiting
• Broken bones, black eyes, bloody noses etc.
• Anxiety, shock, intense fear, depression and suicidal thoughts.
• Gynaecological effects include miscarriage, still-births, bladder infections, STDs and
infertility.
• Long drawn symptoms of marital rape include disordered eating, insomnia, intimacy
problems, negative self-image and sexual dysfunction.

Research has also indicated that marital rape survivors often report flashback, sexual
dysfunction and emotional pain, even after years of violence.

In not providing for divorce laws in the event of rape within marriages, the law is lacking, and
must be amended. Additionally the belief that women would prefer to remain silent than go
public with the story of sexual assault by her husband affords no reason for adhering to the
exemption.

Criminal law cannot turn a deaf ear towards the injustice and inhumanity perpetrated in society.
It must interfere and impose the stamp of criminality to unlawful acts that occur, irrespective
of the fact as to whether such recognition bears the desired fruits. Complaints against marital
rape may be few, yet it is of utmost necessity that the law declares it to be a penal offence.

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The lawmakers must realize that if the sanctity of the Constitution is to be maintained, the
dignity and honour of the women must be vindicated. The fundamental duty of every citizen
of India to denounce practices derogatory to the dignity of women as well as to value and
preserve the rich heritage of our composite culture is pointer to that very fact. The culture and
tradition of India emphasizes on strength does not abuse, equality, not power and control.

The researcher humbly submits that the current provisions creating an exemption for marital
rape, either as a ground for either criminal punishment or as a ground for divorce, needs a
review in view of the seriousness of this matter- this matter must be dealt in the light of it being
a heinous crime against women and also as a crime as to.

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 BIBLIOGRAPHY
Books

• Family Law , Dr. Paras Diwan, Allahabad Law Agency, Eleventh Edition, 2018.

Statutes

• Hindu Marriage Act, 1955

• Divorce Act, 1869
• Dissolution of Muslim Marriage Act, 1939
• Parsi Marriage and Divorce Act, 1936
• The Indian Penal Code, 1860
• The Constitution of India, 1950
• The Protection of Women from Domestic Violence Act, 2005

Websites

• https://www.lawctopus.com/academike/marital-rape-need-criminalisation-india/
• https://indiankanoon.org/doc/1279834/
• https://www.mapsofindia.com/my-india/society/is-marital-rape-a-crime#
• http://www.legalservicesindia.com/article/2369/Marital-Rape.html
https://www.lawteacher.net/free-law-essays/family-law/marital-rape-should-it-
be-grounds-for-divorce-law-essays.php#ftn6
• http://www.legalserviceindia.com/article/l393-Divorce-under-Muslim-Law.html
• https://www.lawdonut.co.uk/personal/divorce-and-family-law/grounds-for-
divorce/grounds-for-divorce-overview
• https://www.advocatekhoj.com/library/lawareas/divorceinindia/7.php?Title=Gro
unds%20for%20Divorce%20in%20India
• https://www.lawteacher.net/free-law-essays/family-law/marital-rape-should-it-
be-grounds-for-divorce-law-essays.php

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