DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

FAMILY LAW PROJECT

ON
MARITAL RAPE
SUBMITTED BY
PRIYA SEWLANI
2014083
IIIrd SEMESTER

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ACKNOWLEDGEMENTS
I would like to sincerely thank the Family law teacher Dr S Radhakirshan for giving me this
project on the MARITAL RAPE which has widened my knowledge on the scope and
relevance of it in the Indian Legal System. Her guidance and support has been instrumental in
the completion of this project.
I would also like to thank all the authors, writers, columnists and social thinkers whose ideas
and works have been made use of in the completion of this project.
My heartfelt gratitude also goes out to the staff and administration of DSNLU for the
infrastructure in the form of our library, that was a source of great help in the completion of
this project.
I also thank my friends for their precious inputs which have been very helpful in the
completion of this project.

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ABSTRACT
Marital rape violates the right of dignity of a married woman. It breaches the trust of wife.
Even then, it is not criminalized as rape in India. It raises a question, is a married woman
being considered an object or the property of the husband. It also raises the question, as to
does a married woman has right to save her body from the lust of her husband. No doubt the
purpose of the marriage is to provide right to have sex with wife. This paper points out
whether this right can be coupled with force or right to have sex is only coupled with will or
consent of wife. The purpose of the marriage in point of view of right to have sex should only
be providing satisfaction of biological need without any check or burden of society and law.
India has been a male dominated society and it is also a fact that Indian culture gives special
status to the women. Today, we talk about women empowerment. But in a male dominated
society, would women be empowered in real sense without criminalizing marital rape. The
main purpose of this paper is to find out as to whether sex without the consent of wife should
be considered as rape. Doctrinal method of research will be applied in this paper. Rape is a
most heinous crime committed on a woman. It is immaterial whether women are married or
unmarried. Marital rape also violates the human right of a married woman i.e. safety and
integrity .Government of India is reluctant in making marital rape a crime. If a woman who is
under 16years of age and consensual intercourse is done with her it will be rape but if she is
married and husband forcefully committed sex with her, it will not be rape. Why marital rape
is not being covered under Indian penal code. This discrimination should be deleted.
Moreover, on one hand there are talks of empowering women and at the same time we are not
protecting the dignity and right to life of married women.

OBJECTIVE
The objective of the study is to do the analysis of the case and the concept of this ground.
Also it is to see the response of the judiciary regarding this ground and how court use this
ground as a result of the interpretation made by it.
Is to improve the condition of the women in India and should be physically and mentally
strong to handle every situation.

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Scope OF The Study

The study will cover the concept of marital rape and important cases of marital rape and also
articles related to it. Research will include the analysis of the case laws.

RESEARCH METHODOLOGY
For this project titled, Marital Rape as a ground for divorce the doctrinal method was judged
to be most appropriate. Primary resources referred to in the course of research include books,
journals, law reports and cases. Other sources like articles, surveys, and the like were
accessed online through the use of online databases.

INTRODUCTION
Rape has time and again, been defined to be the most heinous crime that can be committed
against a women. A crime which can be regarded as the most brutal attack that can be
inflicted upon virginity, youth, motherhood and womanhood itself. A wife getting raped by
her husband is still a taboo and the Indian Penal Code, 1860 still stands shamelessly
chauvinistic in its approach, for it denies to see forceful intercourse by the husband on his
spouse as rape at all and the Personal Laws lay no ground for divorce based on marital rape.
In these conditions where the woman has to continue living with her rapist husband, she has
to undergo the trauma of being abused-physically, mentally, psychologically and in all such
ways undermining her dignity- she continues to live getting raped, often in ignorance and
mostly, in helplessness. Marital rape violates the right of dignity of a married woman. It
breaches the trust of wife. Even then, it is not criminalized as rape in India. It raises a
question, is a married woman being considered an object or the property of the husband. It
also raises the question, as to does a married woman has right to save her body from the lust
of her husband. No doubt the purpose of the marriage is to provide right to have sex with
wife. This paper points out whether this right can be coupled with force or right to have sex is
only coupled with will or consent of wife. The purpose of the marriage in point of view of
right to have sex should only be providing satisfaction of biological need without any check
or burden of society and law. India has been a male dominated society and it is also a fact that
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Indian culture gives special status to the women. Today, we talk about women empowerment.
Many rights have been provided to the women in India. But in a male dominated society,
would women be empowered in real sense without criminalizing marital rape. The main
purpose of this paper is to find out as to whether sex without the consent of wife should be
considered as rape. Marriage is an institution which admits men and women to family life. It
generates love and trust. It is a stable relationship in which a man and a woman are socially
permitted to have children implying the right to sexual relations. Institution of marriage gives
permission to a male and a female to live together under customary and statutory law. It is a
special bond shared between two souls, who tie the wedding knot after promising to be
companions for a lifetime. It is the physical, mental and spiritual unison of two souls.
When a male marries with a female, it means man is duty bound to give due respect to the
dignity of wife. Now question arises whether marriage gives right to the husband to have sex
with his wife forcefully or in other words, is marriage takes away the right of a lady to refuse
to have sex with her husband. It is a debatable question in India in present scenario. Marriage
generates confidence in wife that husband will provide safety and respect her dignity and
when he commits unwanted/forcefully intercourse with his wife, it breaks this confidence and
breaches the trust of the wife. Indian criminal law also demands changes and inclusion of
marital rape in section 375 of Indian Penal Code. In the present scenario in India husband and
wife both are having separate legal entity. Women in India are not only giving their major
assistance in home but also outside the home. Marital rape breaches her trust on her husband.1

Historical Background
Historically, a man could not and to this day, cannot be criminally prosecuted for raping his
wife under the Indian legislation. This inability to prosecute a husband, criminally, is based
on the common law definition of rape itself. The foundation of this exemption can be traced
back to the statement made by Sir Matthew Hale, C.J., in 17th century England. Hale wrote:
The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by
their mutual matrimonial consent and contract, the wife hath given herself in kind unto the
husband, which she cannot retract.
This established the notion that once married, a women does not have the right to refuse sex
with her husband. This allows husbands rights of sexual access over their wives in direct
1 International Journal in Management and Social Science http://www.ijmr.net
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contravention of the principles of human rights and provides husbands with a licence to
rape their wives.2

History
Origins and Theories
Recognition of marital rape as a crime is a recent development in the history of law.
State laws on marital rape in the United States can be traced to England, where the
first Chief Justice Sir Matthew Hale pronounced that a husband cannot be guilty of
rape of his wife "for by their mutual matrimonial consent and contract the wife hath
given herself in this kind unto the husband which she cannot retract." 2 This
statement became known as the Lord Hale doctrine and represented a common-law
marital rape exemption, under which husbands could not be accused of committing
the crime of rape against their wives. His doctrine relied on a theory of irrevocable
consent to justify the exemption; that is, the view that by entering into the contract of
marriage, the parties consent once and forever to all future acts of sex Almost two
centuries later, this principle was embraced by the U.S. legal system, which formally
recognized the exemption in the 1857 Commonwealth v. Fogarty decision.

Physical And Psychological Effects Of Marital Rape

Despite the historical myth that rape by ones partner is a relatively insignificant event
causing little trauma, 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, lacerations, soreness, bruising, torn muscles, fatigue and vomiting. Women who have
been battered and 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 gynaecological consequences of marital rape include miscarriages,
stillbirths, bladder infections, infertility and the potential contraction of sexually transmitted
diseases including HIV.3

2 http://www.lawteacher.net
3 http://www.ebc-india.com/lawyer/articles/645.htm
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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, problems in establishing trusting
relationships, and increased negative feelings about themselves. Psychological effects are
likely to be long-lasting. Some marital rape survivors report flashbacks, sexual dysfunction,
and emotional pain for years after the violence.

Types of marital rape

The following three kinds of marital rape are identified by legal scholars as generally
prevalent in the society:
Battering rape: In battering rapes, women experience both physical and sexual violence in
the relationship and they experience this violence in various ways. Some are battered during
the sexual violence, or the rape may follow a physically violent episode where the husband
wants to make up and coerces his wife to have sex against her will. The majority of marital
rape victims fall under this category.
Force-only rape: In what is called force-only rape, husbands use only the amount of force
necessary to coerce their wives; battering may not be characteristic of these relationships. The
assaults are typically after the woman has refused sexual intercourse.
Obsessive rape: Other women experience what has been labelled sadistic or obsessive
rape; these assaults involve torture and/or perverse sexual acts and are often physically
violent.4

Current Situation
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). 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
4 http://www.ebc-india.com/lawyer/articles/645.htm
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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. [7] 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 among clinical samples of
battered women. Sexual assault by ones 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 Todays 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.5

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

5 http://www.lawteacher.net
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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 doesnt come under the ambit of cruelty.6
In India marital rape exists de facto but not de jure. While in other countries either the
legislature has criminalized marital rape or the judiciary has played an active role in
recognizing it as an offence, in India however, the judiciary seems to be operating at crosspurposes. In Bodhisattwa Gautam v. Subhra Chakraborty7

the Supreme Court said that

rape is a crime against basic human rights and a violation of the victims most cherished of
fundamental rights, namely, the right to life enshrined in Article 21 of the Constitution. Yet it
negates this very pronouncement by not recognizing marital rape. Though there have been
some advances in Indian legislation in relation to domestic violence, this has mainly been
confined to physical rather than sexual abuse. Women who experience and wish to challenge
sexual violence from their husbands are currently denied State protection as the Indian law in
Section 375 of the Indian Penal Code, 1860 has a general marital rape exemption. The
foundation of this exemption can be traced back to statements made by Sir Matthew Hale,
C.J., in 17th century England. Hale wrote:
The husband cannot be guilty of a rape committed by himself upon his lawful wife,
for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto
the husband, which she cannot retract.
This established the notion that once married, a women does not have the right to refuse sex
with her husband. This allows husbands rights of sexual access over their wives in direct
contravention of the principles of human rights and provides husbands with a licence to
rape their wives.
6 http://www.lawteacher.net
7 1996 AIR 922, 1996 SCC (1) 490t5
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Only two groups of married women are covered by the rape legislation those being under
15 years of age and those who are separated from their husbands. While the rape of a girl
below 12 years of age may be punished with rigorous imprisonment for a period of 10 years
or more, the rape of a girl under 15 years of age carries a lesser sentence if the rapist is
married to the victim. Some progress towards criminalizing domestic violence against the
wife took place in 1983 when Section 376-A was added in the Indian Penal Code, 1860,
which criminalized the rape of a judicially separated wife. It was an amendment based on the
recommendations of the Joint Committee on the Indian Penal Code (Amendment) Bill, 1972
and the Law Commission of India. The Committee rejected the contention that marriage is a
licence to rape. Thus, a husband can now be indicted and imprisoned up to 2 years, if firstly,
there is a sexual intercourse with his wife, secondly, without her consent and thirdly, she is
living separately from him, whether under decree or custom or any usage. However, this is
only a piecemeal legislation and much more needs to be done by Parliament as regards the
issue of marital rape. When the Law Commission in its 42nd Report advocated the inclusion
of sexual intercourse by a man with his minor wife as an offence it was seen as a ray of
hope. The Joint Committee that reviewed the proposal dismissed the recommendation. The
Committee argued that a husband could not be found guilty of raping his wife whatever be
her age. When a man marries a woman, sex is also a part of the package.
Many womens organizations and the National Commission for Women have been
demanding the deletion of the exception clause in Section 375 of the Indian Penal Code
which states that sexual intercourse by a man with his own wife, the wife not being under
fifteen years of age, is not rape. However, the Task Force on Women and Children set up by
the Woman and Child Department of the Government of India took the view that there should
be wider debate on this issue. The mandate of the Task Force was to review all existing
legislation and schemes pertaining to women. Of the four recommendations made by the Task
Force vis--vis rape under the Indian Penal Code, the most significant pertains to the
definition of rape. It took the position that the definition of rape ought to be broadened to
include all forms of sexual abuse. As per the recommendation, the Law Commissions
proposed definition of sexual assault could be adopted in place of the existing definition of
rape in Section 375 IPC as it is wide, comprehensive and acceptable. However, like the
Law Commission, the Task Force also stopped short of recommending the inclusion of
marital rape in the new definition. As of now, the law in India is wholly inadequate in

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providing supporting mechanisms for women to exercise bodily integrity and sexual
autonomy 8

Legal position in other countries

In United States researchers estimate that 10% to 14% of married women experience rape in
marriage. When researchers examined the prevalence of different types of rape, they found
that marital rape accounts for approximately 25% of all rapes. Despite the prevalence of
marital rape, this problem has received relatively little attention from social scientists,
practitioners, the criminal justice system, and larger society as a whole. In fact, it was not
until the 1970s that the society began to acknowledge that rape in marriage could even occur.
Till recently, the general rule was that a husband could not be convicted of the offence of
raping his wife as he is entitled to have sexual intercourse with his wife, which is implied
under the contract of marriage. In 1993, marital rape became a crime in all fifty States, under
at least one section of the sexual offence codes. However, it is remarkable that only a
minority of the States have abolished the marital rape exemption in its entirety, and that it
remains in some proportion or other in all the rest. In most American States, resistance
requirements still apply. In seventeen States and the District of Columbia, there are no
exemptions from rape prosecution granted to husbands. However, in thirty-three States, there
are still some exemptions given to husbands from rape prosecution. When his wife is most
vulnerable (e.g. she is mentally or physically impaired, unconscious, asleep etc.) and is
legally unable to consent, a husband is exempt from prosecution in many of these thirty-three
States. The existence of some spousal exemptions in the majority of States indicates that rape
in marriage is still treated as a lesser crime than other forms of rape. Importantly, the
existence of any spousal exemption indicates an acceptance of the archaic understanding that
wives are the property of their husbands and the marriage contract is entitlement to sex.
In England, earlier as a general rule, a man could not have been held to be guilty as a
principal of rape upon his wife, for the wife is in general unable to retract the consent to
sexual intercourse, which is a part of the contract of marriage. However, the marital rape
exemption was abolished in its entirety in 1991. The House of Lords held in R. v. R.9 that the
rule that a husband could not be guilty of raping his wife if he forced her to have sexual
intercourse against her will was an anachronistic and offensive common-law fiction, which
8 http://www.ebc-india.com/
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no longer represented the position of a wife in present-day society, and that it should no
longer be applied. Corresponding amendment to the statutory law was made through Section
147 of the Criminal Justice and Public Order Act, 1994. This judgment was also affirmed by
the European Court of Human Rights in the decision of SW v. UK10.
In New Zealand, the marital rape exemption was abolished in 1985 when the present Section
128 to the Crimes Act, 1961 was enacted. Sub-section (4) now provides that a person can be
convicted of sexual violence in respect of sexual connection with another person
notwithstanding that they are married at the time the sexual connection occurred. Further, the
fact that the parties are married or have been in a continuing relationship will not warrant a
reduction in sentence.12 There is now, therefore, no distinction in principle to be drawn
between sexual violation in marriage and outside of marriage.
In Mexico, the countrys Congress ratified a bill that makes domestic violence punishable by
law. If convicted, marital rapists could be imprisoned for 16 years. In Sri Lanka, recent
amendments to the Penal Code recognize marital rape but only with regard to judicially
separated partners, and there exists great reluctance to pass judgment on rape in the context of
partners who are actually living together. However, some countries have begun to legislate
against marital rape, refusing to accept the marital relationship as a cover for violence in the
home. For example, the Government of Cyprus, in its contribution to the Special Rapporteur,
reports that its Law on the Prevention of Violence in the Family and Protection of Victims,
passed in June 1993, clarifies that rape is rape irrespective of whether it is committed within
or outside marriage.

Marital Rape or Spousal Rape

Marital or spousal rape is rape committed by one spouse against the other. Now the question
that arises is, whether to have sex with wife without consent is to be considered as rape or
rape by male spouse will only be non-consensual sex with wife and not rape. Indian law does
not criminalize marital rape. It also raises a question why it is not rape. Why it cannot be
criminalized under section 375 of Indian Penal Code. It is a debatable issue. Under Indian
penal code it is marital rape if the wife is below 15 years of age. The view of the Indian
society regarding marital rape is shown in this example when a lady confided to her parents
that she was being sexually abused by her husband, who forced her into violent intercourse
with him, she was castigated for not giving the marriage her best. 15 The court in a case said
Defence counsel rightly argued that IPC does not recognise concept of martial rape. If
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complainant was a legally-wedded wife of accused, the sexual intercourse with her by
accused would not constitute offence of rape even if it was by force or against her wishes9
According to the UN Population Fund, more than two-thirds of married women in India,
aged 15 to 49, have been beaten, or forced to provide sex. In 2011, the International Men and
Gender

Conclusion and Suggestions

Rape is a most heinous crime committed on a woman. It is immaterial whether
women are married or unmarried. Rape is rape irrespective of the fact that who
commits it either husband or stranger. Marital rape also violates the human right of a
married woman i.e. safety and integrity. Government of India is reluctant in making
marital rape a crime. If a woman who is under 16 years of age and consensual
intercourse is done with her it will be rape but if she is married and husband forcefully
committed sex with her, it will not be rape. Why marital rape is not being covered
under Indian penal code. This discrimination should be deleted. Moreover, on one
hand there are talks of empowering women and at the same time we are not protecting
the dignity and right to life of married women. Rape is rape either committed by her
husband or committed by third person. Marital rape should be covered under anti-rape
laws in India because she should be allowed to protect her dignity. The study points
out that married women are being raped frequently by their husbands. While official
data on marital rape is meager, activists and lawmakers maintain there is plethora of
evidence to imply it is on the rise. If a woman marries, it should not mean that she has
lost her dignity against her husband. She cannot be considered as a property of the
husband. She should be empowered to say no, if she is not willing to have sex with
her husband. Husband should not be allowed to force his wife to
have sex with him. Rape should be considered only rape without any exception of
marital rape. Marriage should not be considered as a license of committing rape.
Justice Verma Committee recommended criminalizing marital rape as rape but this
recommendation was not considered. So, Section 375 of Indian Penal Code should be
amended in light of recommendations of Justice Verma. Any type of excuse such as
that it will be hard to prove marital rape or criminalizing marital rape would destroy
9 International Journal in Management and Social Science http://www.ijmr.net
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the institution of marriage, should not give right to the husband to play with dignity
and sentiments of his wife. When husband commits marital rape, he also breaches his
promise made by him at the time of marriage. Majority of the Indian women mainly
agree with the occasional domestic violence. This mentality is the reason of violence
against this much widespread violence. As soon Indias women achieve consensus
that sexual abuse is not acceptable, the lawmakers can follow the track and revise
Indias backward laws.
Succinctly, it can be said the dissimilarity between marital rape and non-marital rape
should be removed because marriage does not provide license for committing rape
and the dignity of women either married or unmarried is alike.

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