1

LIST OF ABBREVIATIONS
AIR - All India Reporter

& - AND

AIR - All India Reporter

All E.R - All England Reporter

Anr - Another

Art .- Article

Cr.L.J. – Criminal Law Journal

Cr.L.R. - Criminal Law Review

Cr.P.C. - Criminal Procedure Code

D.L.R. – District Law Review

D.L.T. - Delhi Law Times

Ed - Edition

e.g. - For Example

GJLS - Galgotias Journal of Legal Studies

i.e. - idest (that is)

ibid - idem (in the Same Place)

I.P.C. - Indian Penal Code

JILI - Journal of Indian Law Institute

Malaya L.Rev. - Malaya Law Review

 2

MDU.L.J. - MaharshiDayanand University Law Journal

Minn. L.Rev. - Minnisotta Law Review

N. E. L.REV. - New England Law Review

No. - Number

Ors. - Others

P - Pages

Para - Paragraph

Pub .- Publication

SA - South Africa

SC - Supreme Court

SCC - Supreme Court Cases

Sec. - Section

SCJ - Supreme Court Journal

Supra - In the work previously cited

U.K. - United Kingdom

U.S.A. – United States of America

UOI - Union of India

V - versus

Vol. - Volume

********
 3

LIST OF CASES
 BoddhisatvaGautamvSubhra Chakraborty, 1996 SCC(1) 490
 Naz Foundation v Government of NCT of Delhi, 160 Delhi Law Times 277
 Suresh Kumar Koushal&Anr. vNaz Foundation &Ors
 Tukaramv State of Maharashtra AIR 1979 SC 185
 NandiniSatpatyvP.L.Dani(1978) 2 SCC 424
 State of West Bengal v Anwar Ali Sarkar AIR 1952 SC75, 80
 Weishauptv. Commonwealth 315 S.E.2d 847 (1984)
 State v. Smith 85 N.J. 193, 426 A.2d 38 (1981).
 R v Clarke (1949) 2 All ER 448
 R v. Miller (1954) 2 QB 282.
 Regv. Reid(1972) 2 ALL E.R.1350.
 R v. Roberts (1986) Cri.LR.188.
 R v R (1991) 2 All ER 747.
 R v. C (1991)1 ALL.E.R. 755.
 Common wealth v.Forgarty 74 Mass.(8Gray)489(1857).
 Smith v State 85 NJ 426A2d.
 People v. Liberta 64 NY 2 ed,474NE2d( 1984).
 R v. J.A [2011] 2 SCR 40.
 R v.L (1991) 174 CLR 379.
 Griswold v. Connecticutt 381 U.S. 479 (1965)
 People v. DeStefano, 467 N.Y.S.2d 506, 517 (County Ct. 1983).
 Kokkula Suresh v. State of Andhra Pradesh I (2009) DMC 646 AP.
 Ashok Kumar v. State, I (2009) DMC 120 P&H.
 JitenBouriv State of West Bengal, AIR 2001 All 254.
 Vivek Kumar @ Sanju and Anjali @ Afsanav. The State, Crl M C No 3073-
74/2006
 Khanu v. Emperor AIR 1925 Sind 286
 LohanaVasantlal v. State AIR 1968 Guj 352
 FazalRab v. State of Bihar AIR 1963, Mihir v. Orissa 1991 Cri LJ 488
 Norris v Ireland 13 Eur Ct HR 149 (1981)
 Dudgeon v Great Britain 4 Eur Ct HR 149 (1981)
 Modinos v Cyprus 16 Eur Ct HR (1993)

********
 4

CONTENTS
LIST OF ABBREVIATIONS ........................................................................................... i
LIST OF CASE .......................................................................................................... iii

CHAPTER-I
INTRODUCTION
1.1. STATEMENT OF THE PROBLEM .........................................................................3
1.2. HYPOTHESIS.....................................................................................................4
1.3. OBJECTIVES .....................................................................................................4
1.4. SCOPE AND LIMITATION ...................................................................................5
1.5. NATURE OF THE STUDY ...................................................................................5
1.6. SURVEY OF LITERATURE ..................................................................................5
1.7. SOURCES OF DATA ...........................................................................................5
1.8. SCHEME OF THE WORK ....................................................................................6

CHAPTER-II
RAPE LAWS IN INDIA- PAST AND PRESENT
2.1. RAPE LAWS IN ANCIENT INDIA ........................................................................8
2.2. RAPE LAWS IN MEDIEVAL INDIA ...................................................................10
2.3. RAPE LAWS IN MODERN INDIA ......................................................................10
2.4. PHULMONEEDASSEE’S CASE AND THE AGE OF CONSENT BILL, 1891 ............12
2.5. RAPE LAWS IN INDIA SINCE 1891 TILL INDEPENDENCE ..................................13
2.6. LAW SINCE INDEPENDENCE TILL MATHURA RAPE CASE ................................14
2.7. MATHURA RAPE CASE, MASS CAMPAIGN FOR AMENDMENT AND THE
CRIMINAL LAW AMENDMENT ACT, 1983 ......................................................16
2.8. RAPE LAW REFORMS DURING 1983 AND 2013 ...............................................20
2.9. NIRBHAYA CASE, J.S. VERMA COMMITTEE REPORT AND CRIMINAL LAW
AMENDMENT ACT, 2013 ................................................................................23
 5

CHAPTER-III
MARITAL RAPE AND THE LAW IN INDIA
3.1. RAPE OF A WIFE BELOW 15 YEARS OF AGE ...................................................29
3.2. RAPE OF A WIFE LIVING SEPARATELY ...........................................................32
3.3. RAPE OF A WIFE ABOVE 15 YEARS OF AGE AND NOT LIVING SEPARATELY ..34
3.4. TOWARDS CRIMINALIZING MARITAL RAPE ...................................................37
3.4.1. Recommendation of Justice J.S. Verma Committee on Marital Rape
..........................................................................................................37
3.4.2. Recommendation of Department related Parliamentary Standing
Committee on Home Affairs on marital rape....................................38
3.4.3. Parliamentary Debates on the issue of criminalization of Marital
Rape .................................................................................................41
3.5. MARITAL RAPE AND THE INTERNATIONAL LAW OF HUMAN RIGHTS .............44
3.6. MARITAL RAPE AND THE CONSTITUTION OF INDIA ........................................45
3.7. MARITAL RAPE AND THE OPINION OF PHILOSOPHERS....................................47
3.8. HISTORICAL BACKGROUND OF MARITAL RAPE EXEMPTION..........................48
3.9. MARITAL RAPE AND THE COMPARATIVE ANALYSIS OF THE LAW IN
DIFFERENT COUNTRIES ..................................................................................51
3.9.1. England .............................................................................................52
3.9.2. European Union ................................................................................53
3.9.3. United States of America ..................................................................53
3.9.4. Canada ..............................................................................................54
3.9.5. New Zealand .....................................................................................54
3.9.6. South Africa ......................................................................................55
3.9.7. Australia............................................................................................55
3.9.8. Nepal .................................................................................................55
3.9.9. Bhutan ...............................................................................................55
3.10. ARGUMENTS AGAINST THE CRIMINALIZATION OF MARITAL RAPE.................56
3.10.1. Historical Arguments against the Criminalisation of Marital Rape
.........................................................................................................56
3.10.1.1. The "Implied Consent" Theory ..........................................56
3.10.1.2. The "Unity" and "Women as Marital Property" Theories .57
3.10.1.3. The "Narrow Constructionist" Theory ...............................57
3.10.2. Modern Arguments Against the Criminalization of Marital Rape .. 58
3.10.2.1.
Marital Privacy ........................................................................ 58
3.10.2.2.
Marital Reconciliation .......................................................59
3.10.2.3.
Evidentiary Concerns and the Fear of Women Lying .......59
3.10.2.4.
Marital Rape is Less Harmful than Non-Marital Rape ......61
3.11. ARGUMENTS IN FAVOUR OF CRIMINALIZATION OF MARITAL RAPE ..............62
3.12. MARITAL RAPE AND THE REALITY OF THE INDIAN SOCIETY ........................65
 6

CHAPTER-IV
STATUTORY RAPE AND THE LAW IN INDIA
4.1. Overview .......................................................................................................70
4.2. THEORETICAL FOUNDATIONS OF STATUTORY RAPE LAWS ............................71
4.3. POSITION OF INDIAN LAW WITH RESPECT TO THIS ISSUE ...............................72
4.4. JUDICIAL RESPONSES ................................................................................73
4.5. CONSEQUENCES OF INCREASE IN THE AGE OF CONSENT FROM 16 TO 18
YEARS............................................................................................................76
4.6. COMPARATIVE POSITION OF INDIAN LAW WITH RESPECT TO OTHER
COUNTRIES ....................................................................................................79
4.6.1. The United Kingdom .........................................................................80
4.6.2. Northern Ireland ...............................................................................80
4.6.3. Scotland.............................................................................................81
4.6.4. U.S.A. ................................................................................................82
4.6.5. Canada ..............................................................................................85
CHAPTER-V
UNNATURAL OFFENCES AND THE LAW IN INDIA
5.1. SCOPE AND AMBIT OF SECTION 377 ...............................................................89
5.1.1. Ingredients ........................................................................................90
5.1.2. Punishment ........................................................................................90
5.2. HISTORICAL BACKGROUND ...........................................................................90
5.2.1. Ancient India .....................................................................................91
5.2.2. England .............................................................................................91
5.2.3. Modern India ...................................................................................92
5.3. THE WOLFENDEN COMMITTEE REPORT .........................................................93
5.4. HART- DEVLIN DEBATE .................................................................................95
5.5. OPINION OF THE LAW COMMISSION OF INDIA ................................................98
5.6. POSITION IN OTHER COUNTRIES ....................................................................98
5.7. NAZ FOUNDATION V GOVT OF NCT OF DELHI ...............................................100
5.8. SURESH KUMAR KAUSHAL VNAZ FOUNDATION ..............................................101
CHAPTER-VI
CONCLUSION AND SUGGESTION
6.1. CONCLUSION .................................................................................................106
6.2. SUGGESTIONS ................................................................................................112

BIBLIOGRAPHY ........................................................................................... i-v

 7

INTRODUCTION

Sexual offences are as old as the civilization itself. They have been a cause of concern for
almost all the societies at all times and at all places. Thus, almost all the legal systems of
the world enacted laws to prohibit and punish sexual offences. India, being no exception,
always had laws to deal with these offences. In ancient times, the Smritis written by
Manu, Yajnavalakya, Narada and Brihaspati prescribed punishments for most of the
sexual offences. During medieval period, it was the Muslim Law (consisting of the Quran
and the Hadith), which used to deal with these offences. In the modern period, sections
375 to 377 of the Indian Penal Code drafted by Lord Macaulay contained the substantive
law dealing with the sexual offences in India but surprisingly unlike other parts of the
Penal Code, this part has not remained static rather it has seen extensive amendments so
far. It was the researchers whose work have always given the Parliament valuable
suggestions to reform the Law relating to Sexual Offences in India but these suggestions
are seldom accepted unless they are accompanied by activism or mass movement.
There have been three landmark instances when the research accompanied with mass
movement has forced the Legislature of our country to amend the Law relating to sexual
offences in India. First instance is the death of an 11 years old child bride
PhulmoneeDasee, who died of bleeding caused by ruptured vagina after her much older
husband tried to consummate the marriage. This incident triggered a mass protest
demanding the increase of the age of consent. Forty-four woman doctors brought out long
1
lists of cases where child wives had been maimed or killed because of rape. They were
ably assisted by the reformers of that time and thus the then British government was
compelled to increase the age of consent from 10 to 12.

1
Suruchi Pant, “ Understanding Rape: society, law and government policy”, available at:
http://shodhganga.inflibnet.ac.in/bitstream/10603/17049/9/09_chapter%205.pdf, (accessed on Feb 12,
2019)
 8

The second instance was the infamous judgment of the Supreme Court of India in
Tukaram v State of Maharashtra2(popularly known as Mathura Rape case), in which a
sixteen year old tribal girl was declared to be the consenting partner in the entire sexual
act committed by two Policemen in the compounds of the police station as no injury
marks were found on her person.
The Supreme Court’s judgment was criticised by four eminent law teachers of that time -
UpendraBaxi, VasudhaDhagamwar, Raghunath Kelkar, and Lotika Sarkar in an open
letter3, which was quite uncommon in those days. This triggered wide public protests led
by women’s rights activists, popularly known as Anti-rape movement. This movement
forced the Indian Parliament to bring Criminal Law Amendment Act, 1983, which
included situations of aggravated rape and inserted sections 376A to 376 E in the Indian
Penal Code and section 114A to the Indian Evidence Act.
Thereafter, the ‘Law relating to Sexual Offences’ has attracted constant attention of
academicians, law researchers, social scientists and women’s rights organisations alike.
Several noteworthy suggestions were made, most important among them was to widen
the definition of rape to include non- penile and non- vaginal penetration within the
definition of rape but all these suggestions were not accepted by the Parliament. It was
the unfortunate incident of brutal gang rape of a 23 year old paramedical student
Nirbhaya in a moving bus on the night of 16th December, 2012, which brought the masses
on streets of Delhi to protest against the Rape Laws in India. It was this incident (third
incident in this series), which again forced the Parliament of India to enact Criminal Law
Amendment Act, 2013 , which not only widened the definition of rape under section 375
of the Indian Penal Code but brought several others reforms, which were suggested by
the researchers from time to time.
Thus, we find in all these three instances that it was ultimately the mass movements and
public protests, which brought positive changes in the Rape Laws in India but the
researchers ranging from doctors, law teachers, lawyers or social scientists also have their
own significant contribution in the Rape Law Reforms in India.

2
(1979)2SCC 143
3
Justice Verma Committee Report, p-91 available at:
http://www.thehindu.com/multimedia/archive/01340/Justice_Verma_Comm_1340438a.pdf, (accessed
on Feb 15, 2019)
 9

There is one more instance, where without any mass movement or public protest; the
researchers were able to bring reforms in the Law relating to Sexual Offences in India.
Till 2012, the cases of child sexual abuse were dealt by the general Criminal Law of the
Land (i.e. the Indian Penal Code, the Criminal Procedure Code and the Indian Evidence
Act). Several lawyers, social scientists, women rights organisations and child rights
organisations recommended to the government to bring a special law to deal with the
cases of child sexual abuse, keeping in mind the vulnerable status of children.
Sakshi, a non-governmental organisation working for women’s rights filed a writ petition
before the Supreme Court of India demanding a special legislation to deal with the cases
of child sexual abuse in India.4 The Supreme Court directed the Central government to
look into the demands of the petitioner. Several other persons from different walks of life
supported this demand of Sakshi. Satyamev Jayate, a popular television programme
hosted by a renowned film actor Amir Khan dedicated one of its episodes to this issue
and organised signature campaigns to request the Parliamentarians to enact a strong law
on this issue. All these demands prompted the Indian Parliament to enact Protection of
Children from Sexual Offences Act, 2012. It is a comprehensive legislation, which
defines several forms of child sexual abuse and prescribes punishment for them. This Act
prescribes the establishment of Special Courts to deal with the cases of child sexual abuse
and makes it mandatory for them to follow child friendly procedure so that justice could
be done to the innocent victims of these heinous offences. But in this success also, the
researchers were ably assisted by the activists from all walks of life and it was an
achievement of research coupled with activism.
The success of the researchers in bringing reforms in the Law relating to sexual offences
in India from 1892 to 2013 and the absence of any major work critically analysing the
Law relating to Sexual offences India post Criminal Law Amendment Act, 2013 has
inspired this researcher to undertake this study. It is hoped that this research will be
successful in bringing further reforms in the Law relating to Sexual Offences in India.

1.9. STATEMENT OF THE PROBLEM

4
MaharukhAdenwalla, ‘Child Sexual Abuse and the Law’, Human Rights Law Network, New Delhi
(2008), p-137
 10

The specific problem chosen for research by the researcher is ‘ what is the law relating to
sexual offences in India at present’ and ‘what reforms are required in this branch of law’

1.10. HYPOTHESIS
While engaged in the pilot study, the researcher opined that
(i) The Law relating to sexual offences in India requires immediate reforms.
(ii) At present, there is no legal remedy available to a victim of marital rape, who
is above 15 years of age, in India and thus the law needs to be suitably
amended to provide some relief to the victims of marital rape.
(iii) The increase in the age of consent from 16 to 18 vide Protection of Children
from Sexual Offences Act, 2012 and Criminal Law Amendment Act, 2013 is
going to have devastating consequences and thus the law should be suitably
amended to insulate the adolescents, who engage in consensual sexual activity
from being punished as criminals.
1.11. OBJECTIVES
The general objective of this work is to critically examine the Law relating to sexual
offences in India i.e. both the legislations and the judicial decisions relating to this branch
of law.
The specific objectives are:-
(i) To study in detail the Law relating to sexual offences in India i.e. both the
legislations as well as the judicial decisions
(ii) To examine the Historical evolution of the Law relating to sexual offences in
India
(iii) To critically examine exception 2 to section 375 of the Indian Penal Code
(iv) To examine whether any remedy is available to a victim of marital rape at
present under the Indian law
(v) To critically evaluate the consequences of the increase in the age of consent
from 16 to 18 vide Protection of Children from Sexual Offences Act, 2012
and Criminal Law Amendment act, 2013
(vi) To critically examine and compare the judgments of the Delhi High Court in
the historic Naz Foundation v Government of NCT of Delhi 5and that of the
Supreme Court of India in Suresh Kumar Koushal&Anr.vNaz Foundation
&Ors.6 and to critically evaluate the constitutional validity of section 377 of
the Indian Penal Code so far as it criminalizes the consensual sexual activity
between two adults in private
1.12. SCOPE AND LIMITATION

5
Naz Foundation v Government of NCT of Delhi, 160 Delhi Law Times 277 (Delhi High Court, 2009)
6
Suresh Kumar Koushal&Anr.vNaz Foundation &Ors., available at:
http://judis.nic.in/supremecourt/imgs1.aspx?filename=41070, (accessed on 18 Feb, 2019)
 11

The study is limited to the Law relating to the sexual offences in India. Pure Sociological
and Psychological aspects of the problem are not touched upon except where the
occasion so demanded.
International dimensions of this problem are covered only incidentally and to the extent
necessary to explain the corresponding law or amendments in India. The study also
makes a reference to judicial pronouncements but only landmark decisions of the
Supreme Court and certain High Courts have been referred by the researcher in this work.

1.13. NATURE OF THE STUDY

This is a partly descriptive and partly analytical doctrinaire study.

1.14. SURVEY OF LITERATURE

Existing Literature on the relevant topic has been extensively surveyed. Books and
research papers on the aspects of Law relating to sexual offences in India have been
referred to. Law Journals and other periodicals have been surveyed and bibliographic
Indexes have been prepared.

1.15. SOURCES OF DATA

It covers primary sources, secondary sources and tertiary sources. As a primary source
for the presentation and analysis of information, the relevant original texts of legislations,
conventions, judicial decisions and reports of the Law Commission of India,
Parliamentary Select Committees and various other Committees have been examined.
Books, Journals, Periodical, Reports and the Like have been used as primary as well as
secondary source materials. Further news items from various newspapers and news
magazines have also been utilized as secondary source.
The tertiary sources in the form of websites have been browsed extensively to get
information and the literature on the topic of the study both at the international and
national level.

1.16. SCHEME OF THE WORK

This work is structured into VI Chapters. All the chapters are interlinked and intra linked
with each other.
The First Chapter titled Introduction covers the domain- the problem and its
consequences, the need, the object, the methodology and the limitation of the study.
 12

The Second Chapter titled Rape Laws in India – Past and Present first of all discusses the
History of the Rape Laws in India including the Definition of rape and Punishment
prescribed for rape in ancient, medieval and modern India. Then, it critically analyses the
changes brought about by the Criminal Law Amendment Act, 1983 and Criminal Law
Amendment Act, 2013. It also discusses some landmark judicial decisions on this area.
The Third Chapter dealing with Marital Rape and the Law in India first of all discusses
what marital rape is, then what the present position of the Indian law with respect to
marital rape is, i.e. how far it is considered as a punishable offence and how far it is
considered a civil wrong, then recommendation of Justice J.S. Verma Committee with
regard to this issue is looked into, then the issue of marital rape is analysed with human
rights angle and is tested on the touchstone of the Indian Constitution. Then, a
comparative study of the Indian Law with respect to the Laws of certain other countries is
done. After that, arguments against and arguments in favour of the criminalisation of
marital rape are carefully analysed. Then, at last an attempt has been made to have a look
at the reality of the Indian society with regard to this issue and suggestions for law
reforms are made.
The Fourth Chapter dealing with Statutory Rape and the Law in India first of all
discusses what statutory rape is, then it discusses the present position of Indian Law with
respect to this issue, then an attempt is made to evaluate the consequences of increase in
the age of consent from 16 to 18 and then a comparative study of the Indian Law with
respect to certain other countries is done. Then at last, suggestions for law reforms are
made.
The Fifth Chapter dealing with Unnatural Offences and the Law in India first of all
discusses the scope and ambit of section 377 of the Indian Penal Code and then an
attempt has been made to look into the historical, philosophical and religious background
of this section. Then, the judgments of the Delhi High Court in the historic
NazFoundation v Government of NCT of Delhi7and that of the Supreme Court of India in
Suresh Kumar Koushal&Anr. vNaz Foundation &Ors.8 are comparatively analysed and
an attempt has been made to critically evaluate the constitutional validity of section 377

7
Naz Foundation v Government of NCT of Delhi, 160 Delhi Law Times 277 (Delhi High Court, 2009)
8
Suresh Kumar Koushal&Anr. v Naz Foundation &Ors., available at:
http://judis.nic.in/supremecourt/imgs1.aspx?filename=41070, (accessed on 18 Feb, 2019)
 13

of the Indian Penal Code so far as it criminalizes the consensual sexual activity between
two adults in private. Then at last, a comparative study of the Indian law with respect to
certain other countries is done and then suggestions for law reforms are made.
The Sixth Chapter titled Conclusion summarises the results of the present research and
reiterates the suggestions for reforms in the Law relating to Sexual Offences in India.

********
 14

II

RAPE LAWS IN INDIA- PAST AND PRESENT

At present, the substantive Law relating to sexual offences in India consists of Sections
375, 376, 376A, 376B, 376C, 376 D, 376 E, 377 of the Indian Penal Code and the
Protection of the Children from Sexual Offences Act, 2012. They deal with three types of
sexual offences i.e. rape, unnatural offences and child sexual abuse. Out of these, Section
377 of the Indian Penal Code deals with the unnatural offences and thus it will be
discussed in detail in the Seventh Chapter. The Protection of Children from Sexual
Offences Act, 2012 deals with the cases of the child sexual abuse and thus it will be
discussed in the Fifth Chapter. So, in this chapter, we will limit our discussion to Sections
375, 376 and 376A to 376 E of the Indian Penal Code as these provisions at present
constitute the rape laws in India. But to have a proper understanding of the present, let us
have a look at the past of the rape laws in India.

2.1. RAPE LAWS IN ANCIENT INDIA

Even during ancient period, sexual offences were punishable by law. As per Hindu Law,
they were mainly divided into two classes- rape (Sahasa) and adultery (StriSangraha)
though the term Strisangrahawas generally used to denote both the clauses. The ancient
law givers described rape as one of the most heinous offences and prescribed severe
punishments for the rapists. Sexual offences, whether against married or unmarried
women or against mature or immature girls, with or without consent, were with a few
exceptions, punishable by law but those with married women were generally more
severely dealt with than those with maidens.9 Rape of the prostitutes were also punishable
by law though the quantum of sentence was much lower in case of an ordinary prostitute
and was comparatively higher in case of a prostitute attached with the court. Rape on
slave girls or female servants was also punishable in ancient India.
Consent was the most important factor. If a man had any intercourse with a woman with
force or fraud (i.e. without her consent), it was regarded as a more serious offence.
Consent extenuated the guilt to a great extent, though not wholly as sexual offences were
9
R.D. Das Gupta , “Crime and Punishment in Ancient India”, Vishvabaharati Publications, New
Delhi (2006) p-76
 15

regarded as offences not only against human body but also against morality and
matrimonial rights.10
There were several other factors also, which determined the nature of sexual offence.
Some of them are as follows11:-
(i) Caste of the man and the woman involved
(ii) The civil condition of the woman (i.e. whether married or unmarried)
(iii) Whether the woman is guarded or unguarded
(iv) Who takes the initiative
(v) Personal merits of the offender and the victim
Importance of the caste as factor in deciding the punishment for rape can be seen from
one of the verse of Manu, in which he states that;
“Those who commit rape on the wives of others should be marked by punishments which
caused terror and then be banished.” 12
But he adds that “This punishment is for the men
of twice born castes and not for Sudras, who are to be capitally punished even for
adultery with protected women of twice born castes.”13
But Manu was not alone in prescribing different punishments for the same offence
depending upon the caste of the offender and the caste of the victim. All other
Smritikaras take the same stand. Lighter punishments were prescribed for the ravishment
of the girl of an inferior caste and severe punishment was prescribed for the rape of the
girl from a higher caste. An example can be seen from the book of Yajnavalakya, where
he states “If a man ravishes a maiden of inferior caste, his hand shall be cut off and in the
case of a maiden of higher caste, he shall be punished with capital punishment.”14
Narada also holds a similar opinion. In one of his verses, he states, “When a man violates
a maiden of an inferior or same caste against her will, two of his fingers shall be cut off,
but if the maiden belongs to higher caste, he shall be punished with death or confiscation
of entire property.”15

2.2. RAPE LAWS IN MEDIEVAL INDIA

10
Ibid
11
Ram Mohan Das, “Crime and Punishment in Ancient India (with special reference to the
Manusmriti)”, Kanchan Publiccations, Bodh-Gaya (1982)
12
Manu VIII 352 quoted in Gupta, R.D. Das, “Crime and Punishment in Ancient India”,
Vishvabaharati Publications, New Delhi (2006)
13
Manu VIII, 354 ibid
14
Yajnavalakya II, 288 ibid
15
Narada, 12 Tit., 71 ibid
 16

During the Medieval period, in most parts of the country Muslim Law was followed. The
Holy Quran and the Hadith (or Sunnah) are the main sources of Muslim Law, Ijma and
Qiyas being the others. Muslim Law condemned rape equally sternly with the
punishment ranging from stoning to death to the infliction of 100 lashes. Quran puts rape
among one of the worst crime committed by human beings. 16 The scanty literature
available on this area does not throw light on whether rape was considered as the crime
against the person of woman.17

2.3. RAPE LAWS IN MODERN INDIA

During the modern period, the courts set up by the East India Company administered and
adopted Muslim penal norms of criminal justice. 18 In 1834 Lord Macaulay came to India
and became Law Member of the Supreme Council, under the Charter of 1833. He started
working on a code of substantive criminal law for India. Clause 359 and 360 of the draft
Penal Code were devoted by him to deal with the offence of rape. Clause 359 defined the
offence of rape and clause 360 prescribed punishment for it.
Clause 359 of Macaulay’s draft code stated;
“A man is said to commit rape, who in except in the cases hereinafter excepted,
has sexual intercourse with a woman under circumstances falling under any of
the following descriptions:
First- Against her will
Second- Without her consent, while she is insensible
Thirdly- With the consent, when her consent has been obtained by putting her in
fear of death or of hurt
Fourthly- With her consent, when her consent is given because she believes that
he is a different man to whom she is or believes herself to be, married.
Fifthly- With or without her consent when she is under nine years of age
Exception- Sexual intercourse by a man with his wife is in no case rape.”
Clause 360 stipulated that the punishment for rape should not be more than 14 years and
not less than two years, with or without an additional fine.

16
http://submission.org/Rape.html, (accessed on 12 Feb, 2019)
17
Dr. Vandan, “Sexual Violence against women”, Lexis Nexis Butterworths Wadhwa, Nagpur (2009)
p- 95
18
Ibid
 17

A few peculiar features of this section were19

(i) The age of consent in the fifth sub clause was very low.
(ii) There is an unmistakable preference of the rights of the husband over his wife
against the wife’s right to herself as under no circumstances a husband can be
said to have raped his wife.
(iii) Only a married woman could claim that her consent had been given under a
false impression. Unmarried woman had no such right and their consent, no
matter how it was obtained, was sufficient to exonerate the accused.
According to VasudhaDhagmwar, clause 359 reflected the Victorian notions of morality.
This clause attracted several comments from the judicial officers of the East India
Company. Messrs Cmpbell and Pyne of Madras Presidency argued that a woman, who
submitted to threat of trivial hurt, was not reluctant and did not deserve the protection of
law. Greenhill, a judicial officer suggested that the hurt should be amended to read
‘grievous hurt’. This suggestion was accepted by the Law Commissioners but was
rejected by John Mc Leod in his notes on the Report of the Law Commissioners. He went
to remark that these sections were not intended to protect only rigid chastity. 20
JF Thomas, a judge in Madras Presidency, criticised the code for giving too wide a range
of punishment. He argued that once the commission of rape is proved, character of
woman should be no criteria and same punishment should be awarded to all offenders. 21
But the Law Commissioners took a different view and held that injury in case of a high
class woman is surely infinitely more than in case of a woman of low caste, who was
presumed to be without character.
Section 375 of the final version of the Indian Penal Code, 1860 differed from clause 359
as it incorporated an important amendment “the sexual intercourse by a man with his own
wife, the wife not being under ten years of age, is not rape.” No reasons for this change
were given by the Select Committee. Apart from that, most of the other things mentioned
in clause 359 found their place in section 375. For next 30 years, rape law remained the
same in India.
2.4. PHULMONEEDASSEE’S CASE AND THE AGE OF CONSENT BILL, 1891
In 1890, Phulmonee, an eleven year old girl, was raped to death by her husband, Hari
Maiti, a man of 35 years. Under existing Penal Code provisions, however, he was not

19
VasudhaDhagamwar, “Law, Power and Justice”, 1992 p112, quoted in Dr. Vandana, “Sexual
Violence against women”, Lexis Nexis Butterworths Wadhwa, Nagpur (2009) p- 96
20
Ibid
21
Ibid
 18

guilty of rape since Phulmonee had been well above the statutory age limit of ten. The
medical evidence showed that Phulmonee died of bleeding caused by ruptured vagina.
The court acquitted Hari Maiti of the charge of culpable homicide but convicted him for
causing death by rash and negligent act.
Though full justice was not done in this case, the event, however, added enormous weight
and urgency to Malabari's campaign for raising the age of consent from ten to twelve.
The reformist press began to systematically collect and publish accounts of similar
incidents from all over the country. Forty-four woman doctors brought out long lists of
cases where child wives had been maimed or killed because of rape. It was reported that
Phulmonee's case was not an isolated one. Investigations mentioned at least 14 cases of
pre-menstrual cohabitation that had come to be noticed. An Indian doctor reported in
court that 13 percent of the maternity cases that he had handled involved mother's below
the age of thirteen. The defence lawyer threw a challenge at the court: cohabiting with a
pre-pubescent wife might not have sastricsanction, yet so deep rooted was the custom
that they wondered how many men present in court were not in some way very complicit
with the practice.22
The definition of puberty proved to be the slamming block. Reformers proved that
puberty sets in properly only after 12. While revivalist-nationalists equated puberty with
menarche, medical reformers argued that puberty was a prolonged process, and menarche
was the sign of itscommencement, not of its culmination. The beginning of menstruation
did not indicate the girl's 'sexual maturity' which meant that her physical organs were
developed enough to sustain sexual penetration without serious pain or damage. Until
that capability had been attained, they argued, the notion of her consent was meaningless.
Sarkar highlights how all strands of opinion -colonial, revivalist, nationalist, medical-
reformer- agreed on a definition of consent that pegged it to a purely physical capability,
divorced entirely from free choice of partner, from sexual, emotional or mental
compatibility. Consent was made into a biological category, a stage when the female

22
Tanika Sarkar and Urvashi Butalia(1995) Women and the Hindu Right. New Delhi: Kali for
Women., quoted in Pant, Suruchi, “ Understanding Rape: society, law and government policy”,
available at: http://shodhganga.inflibnet.ac.in/bitstream/10603/17049/9/09_chapter%205.pdf,
(accessed on Feb 12, 2019)
 19

body was ready to accept sexual penetration without serious harm and damage. The only
difference lay in assessing when this stage was reached.23
Finally the efforts of the reformers bore fruit and in 1891, Sir Andrew Scoble introduced
the Age of Consent Bill, which culminated into the Age of Consent Act, 1891. This Act
amended the Indian Penal Code and increased the age of consent from 10 years to 12
years both in the cases of marital and extra marital rape. BehramjiMalbari, Parsi reformer
and a journalist from Bombay played an important role in bringing this reform.

2.5. RAPE LAWS IN INDIA SINCE 1891 TILL INDEPENDENCE

The agitation for increasing the age of consent received increased attention since the
beginning of the nineteenth century. In 1922, Rai Bahadur BakshiSohanLal , MLA, tried
to introduce a Bill to further raise the age of consent in both marital and extra marital
cases24. This attempt failed but it strengthened the agitation for law reforms, which
became stronger with every passing year.
In 1924, Dr. Hari Singh Gaur introduced a Bill to increase the age of consent to 14 in
both marital and extra marital cases. The Bill was referred to a Select Committee, which
made a material alteration by reducing the age from 14 to 13 years in the cases of marital
rape. On 1st September 1925, Sir AlexenderMuddiman introduced the Bill fixing 14 years
as the age of consent in extra marital cases and 13 years in marital cases and this resulted
in the Amendment Act of 1925. This amendment for the first time introduced a
distinction between marital and extra marital rape cases by providing different age of
consent in both the cases. The distinction was further emphasised in section 376 by
incorporating the words- ‘unless the woman raped is his own wife and is not under
twelve years of age’ in which case the punishment was diluted by prescribing a maximum
of two years. Thus the purpose for which the age of consent was raised to thirteen stood
mitigated to a large extent by the reduced punishment.
The question of age of consent was still not considered finally settled and Dr. Hari Singh
Gaur again introduced a Bill in 1927 to increase the age to 14 years in marital cases and
16 years in extra marital cases respectively. This led to the appointment of the Age of

23
Ibid
24
‘Report of the Age of Consent Committee’, Calcutta, Government of India, 1928-29, p11 quoted by
Dr. Vandana, “Sexual Violence against women”, Lexis Nexis Butterworths Wadhwa, Nagpur
(2009) p- 99
 20

Consent Committee.25 This Committee reviewed the existing circumstances and

recommended that in case a husband has sexual intercourse with his wife below 15 years
of age, this is a case of marital misbehaviour and thus the use of the term marital
misbehaviour would be more suited than the term rape. The Committee further
recommended that this offence should be included in chapter XX of the Indian Penal
Code and that section 375 and 376 of the Indian Penal Code should be confined to rape
outside marital relation. It also recommended maximum punishment of either description
for 10 years and fine where the wife is below 12 years of age and imprisonment, which
may extend up to one year or fine or both where the wife was between 12-15 years.26

2.6. LAW SINCE INDEPENDENCE TILL MATHURA RAPE CASE

In 1949, rape laws were further amended in respect of the age of consent. The age of
consent was raised to 16 years in the extra marital cases and 15 years in the marital cases.
In the year 1955, another amendment was brought in the Penal Code, which substituted
the word transportation for life by imprisonment for life in section 376.
In the year 1959, the Law Commission of India stated its intention to revise the Indian
Penal Code27 but it was only after 12 years i.e. in the year 1971, it was able to send its
report to the Union Law Minister. The major recommendations of the 42nd Report of the
Law Commission of India were28:-
(i) Section 375 should be amended to include the situations where the consent of
the woman has been obtained after she has been put in fear of death or
grievous hurt not only to herself but also to anyone else present on the spot.
(ii) The punishment prescribed for rape should be enhanced to a maximum of
fourteen years rigorous imprisonment and thus section 376 should be
accordingly amended
(iii) The cases of sexual intercourse by a husband with his own wife below 15
years of age and also the cases of sexual intercourse by a man with a girl
below sixteen years of age with her consent, i.e. the cases of statutory rape
should not be called rape even in a technical sense. They recommended
separate section 376A and 376 B for such cases.
(iv) One of the very important recommendations of the Law Commission was that
if a woman is living separately from a husband after getting a decree of
judicial separation or by mutual agreement, she should not be treated as the

25
Ibid
26
Ibid
27
Law Commission of India , Forty Second Report p- 2
28
Id p-276
 21

wife of that man and if he has sexual intercourse without her consent, it
should be punishable as rape.
(v) With respect to the sexual intercourse by a man with his child wife, the Law
Commission prescribed maximum punishment of seven years in such cases.
(vi) With respect to the illicit intercourse by man with a girl between twelve and
sixteen years of age, the Law Commission recommended that such offences
should not be equated with rape and they should not be as severely dealt with
as rape. Maximum punishment of seven years was prescribed for such
offences and bonafide mistake as to the age of the girl being above sixteen
years of age was recommended to be treated as valid defence.
(vii) The most significant suggestion of the Law Commission of India was with
respect to custodial rape. The Law Commission observed that under certain
circumstances, woman’s submission to sexual intercourse is really not a
willing consent, whereby men in authority take advantage of the woman under
their custody. It recommended addition of section 376 C, 376D and 376E.
These sections prescribed punishment for the cases of illicit intercourse by a
public servant, superintendent of women’ s or children’s institution or by any
person, who is the manager or staff of a hospital.

This report of the Law Commission of India was followed by the Indian Penal Code
(Amendment) Bill, 1972. A Joint Committee was appointed to review the Bill which
presented its report on 29th February 1976. Its main observations were as follows29:-
(i)The Committee was of the opinion that sexual intercourse by a man with his
own wife whatever might be her age, should not be regarded as rape.
(ii) It diluted the maximum punishment to 10 years from life imprisonment, which
could be imposed depending upon the gravity of offence.
(iii) Punishment of three years was recommended in the case of judicially
separated wife.
(iv) The case of custodial rape, cases of seduction by the public servant, etc.,
taking undue advantage of his position, were recognised and compulsory
imprisonment with fine were imposed as punishment.
These recommendations could not see the light of the day as the Bill of 1972 lapsed. In
1979, again a Bill to amend the Indian Penal Code was introduced. It was passed by the
Rajya Sabha and was pending in Lok Sabha. This Bill also lapsed due to the dissolution
of the Lok Sabha in 1979. Thus, for more than 100 years, the same rape law continued to
exist in India only with minor amendments with respect to the age of consent.

2.7. MATHURA RAPE CASE, MASS CAMPAIGN FOR AMENDMENT AND THE
CRIMINAL LAW AMENDMENT ACT, 1983

29
Report of the Joint Committee on the ‘India Penal Code (Amnedment) Bill, 1972’ , Government of
India, Rajya Sabha Secreatariat, 29 February 1976
 22

In the year 1979, the country witnessed mass campaign for the amendment of rape laws.
This campaign was unprecedented and was triggered by the infamous decision of the
Supreme Court of India in Tukaramv State of Maharashtra30(popularly known as
Mathura Rape case). The facts of this case were that Mathura, an orphan girl, was living
with her brother Gama. Both of them worked as labourers to earn a living. Mathura
developed an intimacy with one Ashok and they decided to get married. On 26th March,
1972, Gama filed a complaint of kidnapping against Ashok and two of his relatives with
Desai Ganj police station. On his complaint, Mathura, Ashok and two others with whom
Ashok were living, were brought to the police station at 9 p.m. Statements of Mathura
and Ashok were recorded. By that time it was 10:30 p.m. and everyone was about to
leave, the accused asked Mathura to wait and others to move out. The direction was
compiled with. Immediately thereafter, Ganpat, one of the police constables on duty, took
Mathura to a toilet and raped her despite protest and stiff resistance. The second
constable Tukaram then went to Mathura and sexually molested her. He also wanted to
rape her, but was unable to do so for the reason that he was in a highly intoxicated
condition.
In the meantime, Ashok and two others who were waiting outside saw the lights of the
police station were turned off and its entrance door was closed from within. They were
behind the police station and started shouting for Mathura. A crowd gathered outside the
police station. Tukaram then came out and told them that Mathura had already left. But,
immediately thereafter, Mathura came out from the rear of the police station and
informed the others that the accused Ganpat had compelled her to undress herself and had
raped her. Thereafter a complaint was lodged and Mathura was examined by a doctor.
The medical report found no injury on her person. An old rupture was found on her
hymen and the vagina admitted two fingers easily. The age of the girl was estimated by
the doctor to be between 14 and 16 years. The presence of semen was detected on the
girl’s clothes.
The Sessions court termed Mathura a shocking liar and stated that she was habituated to
sexual intercourse and thus acquitted the accused of all charges. The Nagpur Bench of
the Bombay High Court however reversed the order of acquittal and stated that sexual

30
Tukaramv State of Maharashtra AIR 1979 SC 185
 23

intercourse was forcible and thus amounted to rape. The High Court was of the opinion
that mere passive submission or helpless surrender of the body cannot be equated with
consent. The appellants convicted by the High Court moved the Supreme Court by way
Special Leave to Appeal, which was granted. The Supreme Court set aside the order of
the High Court on the ground that the primary burden of proof was on the Prosecution,
which they failed to discharge. The Supreme Court was of the opinion that as per clause
thirdly of section 375, it was only the fear of death and hurt which could vitiate the
consent and since the girl was taken away from amongst her near and dear ones and thus
there was no fear. The Supreme Court thus acquitted both the accused of all charges.
The decision drew the attention of four law teachers UpendraBaxi, Raghunath Kelkar,
Lotika Sarkar and VasudhaDhagmwar. In October 1979, they wrote an ‘Open Letter to
the Chief Justice of India’31. In this letter, they criticised the judgment of the Supreme
Court as an extra ordinary decision sacrificing the human rights of the woman under the
law and the Constitution. They raised the following questions:-
(i) Why was she asked to remain in the police station even after her statement
was recorded and when her friends and relatives were asked to leave?
(ii) Why were the lights puts off and doors shut?
(iii) Does the Indian Supreme Court really expect a young girl 14-16 years old to
put up such a stiff resistance against well built police men so as to have
substantial marks of physical injury?
(iv) Does the absence of such marks necessarily imply absence of stiff resistance?
(v) Does the absence of shouts imply easy inference of consensual intercourse in
a police station?
(vi) Is the taboo against pre marital sex so strong as to provide a license to Indian
police to rape young girls? or to make them submit to their desire in police
station?
The open letter emphasised on the difference between consent and submission both in
law and in common sense. It also expressed its displeasure with the Supreme Court on
not condemning the very act of calling a girl to the police station in utter disregard to the
law of the land made by the Parliament and so recently reiterated by the Supreme Court
in NandiniSatpatyvP.L.Dani.32The letter also expressed its surprise over the fact that the
Supreme Court judgment did not utter even a single word condemning the use of the

31
UpendraBaxi, Raghunath Kelkar, Lotika Sarkar and VasudhaDhagmwar, ‘Open Letter to the
Chief Justice of India’; (1979) 4 SCC 1, available at: http://pldindia.org/wp-
content/uploads/2013/03/Open-Letter-to-CJI-in-the-Mathura-Rape-Case.pdf, (accessed on 20
February, 2019)
32
NandiniSatpatyvP.L.Dani(1978) 2 SCC 424
 24

police station as a theatre of rape or submission to sexual intercourse and urged the
Supreme Court to hear the Supreme Court to rehear the case afresh.
This letter received tremendous publicity from the Press and gave rise to a Nation-wide
movement for the amendments of the law. Many demonstrations, meetings and mass
protests were organised by the women organisations, lawyers, teachers, students, social
workers, etc. An academic protest by a group of four got transformed into a national
wave and thus became a unique event in the History of Criminal Law.33
The judgment was widely criticised both inside and outside Parliament and thus the
government took serious note of the rare degree of public and Parliamentary criticism of
the law and thus the Law Commission was directed to submit its report on rape and
allied offences in 1980. The Law Commission submitted its report in a remarkable time
period of less than one month. The Law Commission in its 84th report recommended
several significant amendments to the Indian Penal Code, Criminal Procedure Code and
the Indian Evidence Act. After considering the recommendations of the Law
Commission, the Criminal Law (Amendment) Bill was introduced in the Lok Sabha on
12th August, 1980. The Bill was referred to a Joint Committee of both Houses on 23rd
December, 1980. The Joint Committee made several departures from the
recommendations of the Law Commission. The Criminal Law (Amendment) Bill as
reported by the Joint Committee was introduced in the Lok Sabha by the Minister of
Home Affairs. After being vigorously debated, it was passed by both the houses of the
Parliament. It received President’s assent on 25 December 1983. The main changes
brought about by the Criminal Law Amendment Act, 1983 were as follows:-
(i) The concept of aggravated form of rape was for the first time recognized. The
cases of gang rape, rape of a minor girl, rape of a pregnant woman, custodial
rape committed by public servants, police officers, persons on the
management or staff of jail, remand home, women’s or children’s institution
or hospital found mention in the list of aggravated forms of rape. Enhanced
punishment were provided under section 376 (2) for the cases of aggravated
forms of rape.
(ii) New clause fifthly was added to section 375. It made the consent of a woman
of unsound mind or the consent which is given under intoxication or
administration of some stupefying or unwholesome substance, irrelevant
against a rape charge.

33
VasudhaDhagmwar, ‘Law, Power and Justice”, 1992 p252 quoted by Dr. Vandana, “Sexual
Violence against women”, Lexis Nexis Butterworths Wadhwa, Nagpur (2009) p- 113
 25

(iii)A new section 376A was added. It prescribed maximum punishment of two
years for the rape of judicially separated wife.
(iv) The Act provided for minimum mandatory punishment of seven years in
normal rape cases and 10 years in aggravated rape cases.
(v) Section 228A was added in the Indian Penal Code. It prescribed punishment
for the disclosure of the identity of the victim punishable except with the
permission of the victim.
(vi) Subsections 2 and 3 were added to Section 327 of Criminal Procedure Code,
1973. Subsection 2 provided that inquiry or trial of the cases under sections
376 or 376A to D shall be conducted in camera. Subsection 3 prohibited
printing and publication of any matter in relation to the proceeding without the
permission of the court.
(vii) Section 114A was added to the Indian Evidence Act, 1872, which shifted the
burden of proof on the accused in the cases of aggravated rape once the sexual
intercourse was proved and the victim stated that she did not consent.
Falvia Agnes has observed that the 1983 act was inadequate answer to the campaign for
34
change in rape laws and what started with a bang ended in a whimper but at the same
time the Act was welcomed as a progressive step and it symbolised the beginning of
future changes. 35

2.8. RAPE LAW REFORMS DURING 1983 AND 2013

Despite several progressive steps, some lacunae still existed in the existing law. To fill
them, National Commission for Women made certain suggestions. These suggestion were
considered by the Law Commission of India, which came up with its 156th report.
Unhappy with the existing law and the recommendation of the Law Commission, a Non
Governmental Organisation Sakshi approached the Supreme Court for directions
concerning the definition of the expression sexual intercourse as contained in section 375
and certain other issues. The Supreme Court directed the Law Commission to examine
these issues. In response to the order of the court, the Law Commission came up with its
172nd report.
The major recommendations of the Law Commission in its 172nd report were as follows:-
(i) It was felt necessary by the Law Commission to include non penile and non
vaginal penetration including the penetration of any other body part or an
object within the definition of rape.

34
Flavia Agnes, “The Anti Rape Cmpaign- The Struggle and the Setback”, in the Struggle Against
Violence, ChhayaDatar (ed), 1993, p99, quoted by Dr. Vandana, “Sexual Violence against women”,
Lexis Nexis Butterworths Wadhwa, Nagpur (2009) p- 113
35
Ibid
 26

(ii) The Law Commission further recommended that the provision relating to rape
should be made gender neutral as not only women and girls but young boys
are also being subjected to rape.
(iii) The Commission favoured retaining of the Marital Rape exception though
recommended the increase in the age to 16 in such cases.
(iv) It recommended the retention of the adequate and special reasons clause to
section 376.
(v) It further recommended enhancement of punishment to a maximum of seven
years in the cases of rape by husband during judicial separation.
(vi) It recommended deletion of section 377 of the Indian Penal Code.
(vii) The Commission reiterated its suggestion made in the 84th Law Commission
Report that a new section 166A should be inserted in the IPC. It punishes a
public servant who knowingly disobeys the law prohibiting from requiring the
attendance at any place of any person for the purpose of investigation into any
offence or during the course of conduct of investigation and such an act
results in prejudice to another person.
(viii) The Commission recommended that subsection (3) and (4) be inserted in
section 160, Cr.PC. to the effect that the statement of the victims shall be
recorded by a female police officer or in her absence a female government
servant.
(ix) It further recommended that proviso to section 160 should provide for
recording of the statement of the victim in presence of one of her relatives of
her choice, who shall not interfere with the recording of the statement.
(x) It also recommended the insertion of section 164A to Criminal Procedure
Code for medical examination of victim with her consent by a medical
practitioner without delay.
(xi) It also recommended the insertion of new section 53A to Criminal Procedure
Code for the medical examination of the accused without delay.
(xii) It also strongly recommended that proviso to section 273 of Criminal
Procedure Code be modified so that minor victim is not confronted by the
accused while at the same time ensuring the right of the accused to cross
examine.
(xiii) The Law Commission recommended insertion of section 53A in the Indian
Evidence Act, which provides that where consent of the victim is in issue, her
past sexual experience with any person will not be relevant.
(xiv) The Commission was of the view that section 146 (4) should be inserted to
Indian Evidence Act prohibiting the questions regarding general character of
the victim.
In the year 2005, the Criminal Procedure Code was amended by the Parliament. Some of
the recommendations of the Law Commission were accepted. The major changes brought
in 2005 are as follows:-
(i) Section 164A was inserted in the Criminal Procedure Code. It contemplates
the medical examination of the rape victim within 24 hours of the receiving of
the information. Such medical examination is to be done by a registered
 27

medical practitioner employed preferably in a hospital run by the

Government.
(ii) A new additional clause was added to section 176 Criminal Procedure Code,
which provided for a case where rape is alleged to have been committed on a
woman while in custody, an inquiry shall be held by the Judicial Magistrate or
Metropolitan Magistrate having local jurisdiction over the case. The inquiry
will be in addition to the police investigation.
(iii) Section53 A was added to the Criminal Procedure Code. It provided for the
medical examination of the accused in a rape case by medical praticioner
employed in the government hospital or by any other medical practitioner who
is acting on the request of a police officer not below the rank of a sub
inspector. The section further states that it will be lawful for such medical
practitioner or any other person acting in good faith and under his direction to
use such force as is reasonably necessary for the purpose of medical
examination of the accused.
2.9. NIRBHAYA CASE, J.S. VERMA COMMITTEE REPORT AND CRIMINAL
LAW AMENDMENT ACT, 2013
On the unfortunate night of 16 December, 2012, a 23 year old girl, an aspiring paramedic,
was returning back after watching a movie with her male friend. It was 9 p.m. and she
found difficulty in finding transportation for her way back home. She boarded a bus, not
a regular one, but without sensing anything amiss. Her male friend was assaulted and she
was brutally gang raped by six men inside that bus. And the inhumanity did not end
there; an iron rod was forced into her body which totally destroyed her intestine. She
fought for life for few days and finally died in a hospital in Singapore. This incident, not
only because it happened in the heart of Delhi, the National Capital but also because of
the extreme brutality shown by the rapists shocked the public conscience36. People came
out in hordes, organized protests and demanded justice for the victim. Slowly this
movement took a nation- wide character and people started campaigning for reforms in
the rape laws.
Public protests took place even at India Gate and Raisina Hills, the latter being the site of
both RashtrapatiBhawan and Parliament. Thousands of protesters battled police and
Rapid Action Force Units. Demonstrations were lathi-charged, shot with water-canons
and teargas shells. Hundreds of protesters were arrested. The government closed metro
stations to discourage protesters to gather at Raisina Hills but then also protesters
gathered in large numbers and demanded justice and legal reforms. After the death of

36
Justice Usha Mehra Commission of Inquiry Report, p-6
 28

victim on 29th December 2012, the movement became even more widespread and public
protests were organised in almost all the parts of the country. Even inside the Parliament,
the members cutting across the party lines demanded justice, swift action on the part of
the government and stricter laws for crime against women.
The Government of India appointed Justice (retd.) Usha Mehra Commission of Inquiry
to inquire into the very aspects of this incident, to identify the lapse on the part of the
police, any authority or any person and also to give suggestions to improve the safety and
security of women.37
Another Committee headed by Justice J.S. Verma and consisting of Justice Leila Seth
and Gopal Subramanium as members was constituted to look into amendments into
possible amendments of Criminal Law to provide for quicker trial and enhanced
punishment for criminals committing sexual offences of extreme nature against women.38
The major recommendations of Justice Verma Committee Report were as follows:-
(i) The definition of the term rape in section 375 should be broadened to include
non-penile and non-vaginal penetration i.e. penetration by any other body part
or any object.
(ii) The broader gender neutral term sexual assault should be used but the term
rape should also be retained within its confines.
(iii) The marital rape exception should be deleted and an explanation should be
added to section 375 that the relationship between the accused and the victim
should neither be a defence for the charge of rape nor it should be a mitigating
factor to determine the quantum of sentence. 39
(iv) The Committee did not favour the lowering of the age of the juvenile from 18
to 16. It did not also recommend increase in the age of consent.
(v) It was recommended that any officer who fails to record the information given
to him commits an offence which should also be punishable.
(vi) The protocols of medical examination of victims of rape were also suggested
by the Justice Verma Committee. The Committee recommended the
discontinuation of two finger test.
(vii) The Committee rejected the proposal to introduce chemical castration as one
of the punishment for rape.
(viii) The Committee also recommended introduction of various other offences
against women in the Indian Penal Code like acid attack, stalking, voyeurism,
disrobing, etc.
(ix) The Committee recommended that in the conflict area, the requirement of
sanction for initiating the prosecution of armed forces personnel should be

37
Ibid p-1
38
Justice Verma Committee Report, p-2
39
Ibid p-117
 29

specifically excluded when sexual offence is alleged. Complaints of sexual

violence must be afforded witness protection.
(x) The Committee further recommended certain steps for police reforms. These
include the establishment of State Security Commissioner to ensure that the
influence of the state government on state police is minimized.
(xi) The Committee also recommended electoral reforms. It was of the view that
filing of charge sheet and cognizance by the court should be sufficient for
disqualification of the elected representatives.
(xii) The Committee also recommended educational reforms. It was of the view
that children’s experiences should not be gendered. It has recommended that
sexuality education should be imparted to children.
On the basis of the recommendations of the Verma Committee, the Criminal Law
Amendment Ordinance was promulgated by the President. It replaced the offence of rape
with sexual assault and made the offence gender neutral. It increased the age of wife in
the cases of marital rape to 16. The age of consent in other cases was increased to 18.
Punishment in the cases of rape was increased and the rape laws were made stricter.
Thereafter Criminal Law Amendment Bill, 2013 was presented in the Parliament. It was
referred to a Select Committee, which in its report differed with some of the
recommendations of the Verma Committee, especially with regard to marital rape and the
age of consent. The new Bill was passed by both the Houses of the Parliament and
received the assent of the President on 2nd April, 2013 and thus became Criminal Law
Amendment Act, 2013.
The major changes brought about by the Criminal Law Amendment Act, 2013 are as
follows:-
(i) The most important change brought up by it was the change in the definition
of the term rape. Long standing demand of the women’s organisation,
academicians and activists was accepted. Now even non-penile and non-
vaginal penetration either by any body part or any object was included within
the definition of rape.
(ii) The age of consent was increased to 18 years in normal case but in the cases
of marital rape, it remained 15 years.
(iii) The recommendation of the Verma Committee report with respect to
criminalization of marital rape was not accepted.
(iv) In the cases of aggravated rape case, the punishment was increased to life
imprisonment, which shall mean imprisonment till the remainder of one’s
natural life.
(v) Minimum Punishment of twenty years was prescribed in the cases of gang
rape.
(vi) Enhanced punishment of imprisonment for the rest of the natural life or death
penalty was prescribed for repeat offenders.
 30

(vii) Exception to section 376, which gave the court discretion to give punishment
less than the minimum prescribed, was deleted.
(viii) Several new offences of stalking, voyeurism, disrobing, acid attack, sexual
harassment etc. were included in the Indian Penal Code.
(ix) Punishment prescribed for section 354 was increased to minimum one year
and maximum five years and that for section 509 was increased to maximum
three years.
(x) A new section 166A was added in the Indian Penal Code. This section
prescribes punishment for a public servant, who does not record an
information given to him under section 154 of the Cr.P.C. in relation to the
offence punishable under section 376, 376A, 376B, 376C, 376D, 376 E, 354,
509, 326A, 326B or 354B of the Indian Penal Code or who knowingly
disobeys any direction of law with regard to investigation of the offence.
(xi) A new section 166B was added in the Indian Penal Code, which imposed an
obligation on the hospitals not to deny treatment to any victim of sexual
offence or acid attack. Denying the same has been made a punishable offence.
(xii) A proviso was added to section 154 of the Criminal Procedure Code that in
case, the information is given by a woman against whom the aforementioned
offences have been committed; the information shall be recorded by a woman
police officer.
(xiii) Section 160 of the Criminal Procedure Code was also amended and it was
provided that the statement of the victim in such cases should also be recorded
by a woman police officer.
(xiv) An explanation was inserted to Section 197 of the Criminal Procedure Code
and it was declared for the clarification of doubt that no sanction will be
required for the prosecution of a public servant accused of the aforementioned
offences.
(xv) An explanation was added to section 273 of the Criminal Procedure Code and
it was declared that while recording the statement of a minor victim of sexual
offence, the court shall take appropriate measure to ensure that such woman is
not confronted by the accused while at the same ensuring that the accused is
able to listen to her statement.
(xvi) Section 357B was added to the Criminal Procedure Code. It states that
compensation payable by the state government under section 357A will be in
addition to the fine paid to the victim under section 326A or 376D of the
Indian Penal Code.
(xvii) Section 357C was added to the Criminal Procedure Code. It imposes an
obligation on all hospital, whether public or private to immediately provide
medical treatment or first aid to the victim of sexual offences or acid attack
free of cost.
(xviii) Section 53A was added to the Indian Evidence Act. It states that evidence of
character or previous sexual experience of the victim shall be irrelevant in the
aforementioned cases.
(xix) Proviso was added to section 146 of the Indian Evidence Act. It states that it
shall not be permissible to adduce evidence or to put questions to the victim in
 31

cross examination as to her general immoral character or her past sexual

experience.
In this way, we have traced the History of the Rape Laws in India from 1860 to 2013.
The Amendment Act of 2013 has been welcomed by different sections of the society. No
doubt it contains several progressive steps and has accepted several longstanding
demands of legal reforms in India but even then there are several lacunae, which still
exist in these laws. Some of them are very old like marital rape and some of them are
comparatively new and have been highly aggravated by the Amendment Act of 2013 like
statutory rape. Thus, in the next two chapters, we will critically analyse the Law relating
to Sexual Offences in India with respect to the issues of Marital Rape and Statutory Rape
respectively.
2.10. Criminal Law (Amendment) Act, 2018
The Indian Penal Code, 1860 governs the substantive part and the Code of Criminal
Procedure, 1973 along with the Indian Evidence Act, 1872 governs the procedural part of
the criminal law of the country. These Acts have been amended several times to keep
pace with the changing needs of society. One major amendment in these laws was the
Criminal Law (Amendment) Act, 2013. This is also commonly known as the ‘Nirbhaya
Act’ and it amended the provisions relating to sexual offences. These amendments were
the consequence of the brutal rape and consequent death of a 23-year old woman in a bus
in Delhi and were based on the recommendations of Justice J.S. Verma Committee
Report.

The Criminal Law Amendment Act, 2018 is also a consequence of such barbaric
incidents which shook the conscience of the entire nation. The demand for making anti-
rape laws more stringent had started developing due to various child rape incidents. The
infamous Kathua rape case and the Unnao rape case triggered this demand and this gave
birth to the amendment of 2018.

2.10.1 Brief facts of Kathua rape case and Unnao rape case:-
An 8-year-old girl was raped in Kathua, a district of Jammu and Kashmir. It has been
alleged that she was kept in a Shrine for several days and raped continuously and later
murdered.
 32

The Unnao rape case was another shock to the nation where a teenage girl accused an
MLA of raping her in the year 2017. She tried to set herself on fire in front of the MLA’s
residence in Unnao, northern Uttar Pradesh.

2.10.2. Timeline of events which led to the amendment:-

Several state assemblies such as Madhya Pradesh, Haryana, Rajasthan, and Arunachal
Pradesh passed stringent anti-rape laws for committing rape of minor girls after the
Kathua rape and the Unnao rape incidents.

(i) Following this, the President had promulgated the Criminal Law Amendment
Ordinance on 21 April 2018.
(ii) The Criminal Law (Amendment) Bill was then tabled in the Parliament which
replaced the Ordinance.
(iii)The Bill was passed by the Parliament on 6th August 2018.
(iv) The President gave assent to the Bill and thus, the Criminal Law (Amendment)
Act, 2018 came into force.

2.10.3. What lead to enactment of Criminal Law Amendment Act, 2018:-

This followed the Criminal Law (Amendment) Ordinance, 2018 and brought
amendments in four major Acts.

(i) The Indian Penal Code, 1860

(ii) The Code of Criminal Procedure, 1973
(iii)The Protection of Children from Sexual Offences Act, 2012
(iv) The Evidence Act, 1872

2.10.4.The Indian Penal Code, 1860:-

Before the amendment, Section 376 dealt with punishment for the rape of women in two
circumstances.

(i) Section 376(1) dealt with punishment for rape of a woman in all the
circumstances except those mentioned in Section 376(2). The punishment in such
cases was rigorous imprisonment of a minimum seven years which may be
 33

extended to imprisonment for life. The punishment under this section has now
been amended.
(ii) Section 376(2) dealt with punishment for the rape of a woman done by police
officers, public servants, member of the armed forces, etc. This punishment has
not been amended and is a minimum ten years rigorous imprisonment which may
be extended to imprisonment for life.

After the amendment, Section 376 deals with three categories of punishment for rape,
apart from rape of women by police officers, public servants, member of the armed
forces, etc.

(i) Punishment for the rape of a woman to be a minimum ten years rigorous
imprisonment which may extend to imprisonment for life. {Section 376(1)}.
Thus, the quantum of punishment has increased from a minimum of seven years
to a minimum of ten years.
(ii) Punishment for rape on a woman under sixteen years of age has been added by
the amendment. Punishment in such cases has to be rigorous imprisonment of a
minimum twenty years which may extend to life imprisonment. {Section 376 (3}
(iii)Punishment for rape on a woman under twelve years of age has also been added
by the amendment. The punishment in such cases is defined as a minimum
twentyyears rigorous imprisonment which may extend to imprisonment for life.
The offender in such cases can also be punished with death penalty. {Section
376AB}
(iv) Thus, for the first time, death penalty has been introduced for the offence of rape
considering the gravity of the offence.
(v) Moreover, Section 376DA and 376DB have been added by the amendment which
deals with punishment for gang rape on a woman under sixteen years and twelve
years respectively. The punishment in such cases has to be invariably
imprisonment of life. However, for gang rape on a woman under twelve years of
age death penalty can also be awarded.
(vi) Clause (i) of Section 376(2) has been omitted.40

40
The Criminal Law (Amendment) Act, 2018
 34

2.10.5.The Code of Criminal Procedure, 1973:-

There have been simultaneous amendments in the Cr.P.C to meet the ends of justice in
such cases of rape.

(i) If a person is accused of rape on a woman of under sixteen years of age, he

shall not be granted anticipatory bail under Section 438 by a High Court or a
Court of Session.
(ii) The amendment has provided for speedy trial and investigation.
(iii)The investigation has to be mandatorily completed within two months.
(iv) The appeal in rape cases has to be disposed within six months.
(v) Moreover, the amendment has also made two changes in Section 439 of the
Code.
(vi) A proviso has been inserted which states that the High Court or the Session
Court has to give notice to the public prosecutor within 15 days of which it
receives the bail application of an accused of raping a girl under 16 years of
age.
(vii) A sub-section has been inserted which makes the presence of informant or
a person authorized by him mandatory during the hearing of bail application
of the accused in such cases.41

2.10.6. The Protection of Children from Sexual Offences Act, 2012:-

(i) Section 42 of the Act which deals with alternative punishment has been amended
to include Sections 376AB, 376DA, and 376DB.42

2.10.7. The Evidence Act, 1872:-

(i) Section 53A and Section 146 have been amended to make the provision of the Act
to be in consonance with the amendments in other Acts.43

2.10.8. Various views on the Amendment:-

41
Ibid
42
Ibid
43
The Criminal Law (Amendment) Act, 2018
 35

2.10.8.1. The debate on Death Penalty:-

The amendment in Criminal Law with respect to the introduction of the death penalty
triggered the debate whether such punishment addresses the issue at hand.

The supporters of the punishment of death for committing rape on a woman under twelve
years of age argue that the punishment is apt for such a heinous crime and it will act as a
deterrent. One of such supporters is retired Justice P.D. Kode of the Bombay High Court
who said that such offence is a “dastardly act” and is inflicted on minors who are actually
incapable of protecting themselves and therefore, the punishment of death penalty is not
harsh.44 Another opinion is that a person committing rape on a girl whose body has not
even matured is an evil and devious act and thus, to be punished by death penalty is the
best answer.

However, there are many activists and lawyers who argued against such punishment on
various grounds. The argument that the death penalty will act as a deterrent is dismissed
as a futile exercise as stringent punishments in a very few cases have led to a decrease in
the rate of commission of crimes. Such arguments have been mostly based on two points.

(i) The 2013 amendment of Criminal Law was targeted towards the same objective
i.e. to make the laws stringent so as to create deterrent in the minds of the
perpetrators. However, records show that the stringent laws have not helped much
in bringing down the rate of crime. Moreover, there was a strong demand after the
Nirbhaya incident too that death penalty should be included as a punishment for
rape but Justice Verma Committee recommended against it stating that “there is a
strong submission that the seeking of the death penalty would be a regressive step
in the field of sentencing and reformation.”45 A similar view was also reiterated
by the Law Commission of India in its 262nd report.

44
SonamSaigal, Activists, Lawyers split over death for minors’ rape, The Hindu,
https://www.thehindu.com/news/cities/mumbai/activists-lawyers-split-over-death-for-minors-
rape/article23639421.ece. (accessed on 24 Feb, 2019)
45
Justice Verma Committee Report, at 245.
 36

(ii) Another ground is that the death penalty is also a punishment in case of an
offence of murder. However, this has not stopped the crime and in fact, the crime
rate is on increase. The offender is not in the state of mind to analyse the
punishment before committing the crime and thus, the death penalty is not an
effective deterrent.

2.10.8.2. The death penalty will lead to under-reporting of cases:-

This is one of the arguments given by people opposing the death penalty. National Crime
Records Bureau (NCRB) data shows that rapes in India are mostly committed by a person
known to the victims or relatives of the victims. Out of 38,947 reported rape cases in
2016, 36,859 cases were such in which the victims knew the offenders.46 As a
consequence, there is massive underreporting of rape cases and with death penalty as a
punishment, this will only intensify. This is because “we are effectively asking the child’s
family to risk sending a family member or a known person to the gallows.”47

2.10.8.3. Introducing the death penalty has increased the chances of the
offender killing the victim:-
This is another view against the punishment of the death penalty. The punishment for
murder under Section 302, IPC is death penalty or imprisonment for life. Thus,
effectively the punishment for committing rape on a minor girl and committing murder
has become same. Therefore, now the chances are high that the offender will make sure
that the victim does not survive. This point was also raised by the Delhi High Court when
a Bench comprising of Acting Chief Justice Gita Mittal and Justice C. Hari Shankar
remarked “Have you thought of the consequence to the victim? How many offenders

46
Soibam Rocky Singh &JaideepDeoBhanj& Saurabh Trivedi, Better conviction rate not death
penalty will deter sexual offenders, The Hindu, https://www.thehindu.com/todays-paper/tp-
national/tp-newdelhi/better-conviction-rate-not-death-penalty-will-deter-sexual-
offenders/article23640863.ece. . (accessed on 24 Feb, 2019)
47
AnupSurendranath, Ineffective and arbitrary, The Hindu, https://www.thehindu.com/todays-
paper/tp-opinion/ineffective-and-arbitrary/article23166394.ece. (accessed on 24 Feb, 2019)
 37

would allow their victims to survive now that rape and murder have the same
punishment?”48 Thus, this might result to be of fatal consequence for the victims.

2.10.8.4. The shift in focus:-

One of the major arguments against the amendment is that this is a step to pacify the
public and a step away from addressing the real problem. The real and persisting problem
lies in the criminal justice system of the country.

(i) The focus should be on taking steps to increase the conviction rate. In 2016, a
total of 38,947 cases of rape were reported in the country. Of these, the Courts
completed trial in 18,552 rape cases. However, with a conviction rate of
25.5%, the accused in 13,813 cases were acquitted. Similar statistics can be
seen in cases of child rape. Out of 6,626 cases of which trial was completed,
4,757 resulted in the acquittal which means a conviction rate of 28.2%.49
Thus, the need of the hour is to focus on addressing these issues.
(ii) Another issue which requires greater attention is providing protection to the
victim as well as the witness. Because of lack of any such system, more often
than not the victim, witness or the family members face threats and
intimidation. There is a need to create a conducive environment for the victim
to report the crime and provide protection to the victim as well as the witness.
Thus, there are more intricate issues to deal with and until these are resolved it
is difficult to control the rate of such crimes.

2.10.9. The Amendment makes the difference of Section 376(1) and

376(2) ineffective:-
Section 376 (1), IPC deals with the punishment for the offence of rape in general, i.e. for
all the cases except for those provided in Section 376(2). The latter section deals with the
punishment for rape if the offence is committed by a specific person or the offence is
committed in specific circumstances. There are several categories mentioned in the
section such as a police officer, a public servant, a member of the armed forces, a person
in a position of trust or authority, etc. Before the amendment, the minimum punishment

48
Staff Reporter, Was any study done before bringing out rape ordinance, The Hindu,
https://www.thehindu.com/todays-paper/tp-national/tp-newdelhi/was-any-study-done-before-
bringing-out-rape-ordinance/article23652406.ece (accessed on 24 Feb, 2019)
49
Soibam Rocky Singh &JaideepDeoBhanj& Saurabh Trivedi, Better conviction rate not death
penalty will deter sexual offenders, The Hindu, https://www.thehindu.com/todays-paper/tp-
national/tp-newdelhi/better-conviction-rate-not-death-penalty-will-deter-sexual-
offenders/article23640863.ece. (accessed on 24 Feb, 2019)
 38

under Section 376 (1) was seven years imprisonment and in Section 376(2) was ten years
imprisonment. This difference was created as the crime becomes more heinous if
committed by persons who are held high in the eyes of the public due to their position or
if committed in specific circumstances. However, after the amendment, the minimum
punishment in both the sub-sections is ten years of imprisonment and thus, there remains
no difference.

2.10.10. The difference in the punishment for rape of minor boys and
minor girls:-
The Protection of Children from Sexual Offences Act, 2012 was enacted because the
sexual offences were dealt under IPC for all the victims and a need was felt that the
children who are victims of sexual violence need special protection and care and hence, a
separate legislation. This is gender neutral legislation as it defines a ‘child’ as the one
who is under the age of 18 years. The maximum punishment under this Act is
imprisonment for life and the maximum punishment for a sexual offence under IPC for
minor girls has become death penalty. Thus, a difference has been created by
theamendment of 2018 as punishment for rape on minor girls has become more stringent
as compared to rape on minor boys.50

2.10.11. The problem in case of no anticipatory bail:-

The amendment in Cr.P.C provides that no anticipatory bail shall be granted in cases of
rape on a woman less than sixteen years of age. Thus, now the accused has no provision
to get an anticipatory bail even if there are chances of being booked under a false case.

2.10.12. What other states should learn from Madhya Pradesh on

successfully implementing the Criminal Amendment Act of 2018:-
The Criminal Law (Amendment) Act, 2018 through the amendment of Code of Criminal
Procedure, 1973 provides for speedy trial and investigation in rape cases. Having
considered all the views in favour and against the amendment, it is also important to
throw some light on the practical results of the amendment.

50
https://www.hindustantimes.com/india-news/centre-to-make-sexual-assault-of-boys-under-age-of-
12-punishable-by-death-penalty/story-JRPmcyeu8pHgGupvJJICMI.html (accessed on 24 Feb, 2019)
 39

(i) The state of Madhya Pradesh has shown a successful implementation of the
provisions of the amendment. The state has completed the investigation of rape
cases within the time frame i.e. within 60 days in 72% of the cases.
(ii) In a rape case in Bhopal, the arrest was done within 12 hours and the investigation
was completed in 72 hours which also included recording the statement of 25
witnesses and the accused was awarded death penalty.
(iii)In another case, the trial for rape of a 4-year-old was completed in a day after four
days probe.
(iv) These statistics clearly show that the provision laid down in the amendment is an
achievable task and can lead to improvement of delivery of justice all over the
country.
(v) Even the Centre has applauded the government of Madhya Pradesh for the
successful implementation of the amendment Act and has asked other states to
follow the same.

********
 40

III

MARITAL RAPE AND THE LAW IN INDIA

Marital rape is non-consensual sex in which the perpetrator and the victim are related to
each other as spouse. It is also called spousal rape and rape in marriage. For a very long
time, marital rape was widely condoned or ignored by most of the societies around the
world but now a large number of countries have criminalized it. India is one of those
countries, where marital rape is a crime only in few exceptional circumstances. To have a
look on the present position of Indian Law with respect to marital rape, we need to
classify marital rape into three categories:-
(i) Rape of a wife below 15 years of age
(ii) Rape of a wife living separately
(iii) Rape of a wife above 15 years of age and not judicially separated
Let us discuss the position of law with respect to each of them one by one.

3.13. RAPE OF A WIFE BELOW 15 YEARS OF AGE

As per section 375 of the Indian Penal Code, at present the rape of a wife below 15 years
of age is a crime and is punished in a similar manner as any other rape. When the India
Penal code was prepared by Lord Macaulay, the age of consent was fixed at 10. We have
already seen in the last chapter how the public protests after PhulmoneeDasee’s case
forced the British government to increase the age of consent to 12 years in 1891. In 1924,
Dr. Hari Singh Gaur introduced a Bill to further increase the age of consent to 14 but the
Select Committee created a distinction and recommended 14 years of age in normal cases
and 13 years of age in the cases of marital rape. This recommendation was accepted and
thus it culminated into the Amendment Act of 1925. This amendment for the first time
created a difference between the cases of marital rape and the cases of extra marital rape,
which was further emphasised by the fact that a mild punishment of maximum of 2 years
imprisonment was prescribed for the rape of a woman between 12 to 13 years of age by
her husband.
In 1940, the age of consent was further increased to 16 years but in cases of marital rape
it was increased to 15 years only and the same continued till 2013. Before the
 41

Amendment of 2013, Section 376 prescribed a very mild punishment of maximum 2

years imprisonment if the age of the raped child wife was between 12 and 15 years.
Criminal Law Amendment Act, 2013 deleted this difference in punishment.
It was a significant change brought about by Criminal Law Amendment Act, 2013 but in
several other respects this Amendment could not stand up to the expectations of the child
rights activists. For a very long time, the activists have been demanding the same age of
consent in the cases of both marital and extra marital rape cases but Criminal Law
Amendment Act, 2013 further aggravated the difference by increasing the age of consent
in extra marital cases from 16 to 18 whereas leaving the age of consent in the cases of
marital rape at 15. Prohibition of Child Marriage Act, 2006 prohibits the marriage of a
girl child below 18 years but the Indian Penal Code does not recognise sex by a man with
his own wife aged 15-18 as rape. This has led to a standing confusion as to marital rape
within prohibited child marriages in India.
This confusion is further aggravated by the Protection of Children from Sexual Offences
Act, 2012 which prohibits any sexual relationship with a child below 18 years of age. The
consent of the child in such cases is immaterial. Section 5 (n) of this Act further states
that a person who is related to the child through marriage and commits penetrative sexual
assault shall be liable for committing aggravated penetrative sexual assault for which
section 6 prescribes minimum punishment of 10 years of imprisonment and maximum
punishment of life imprisonment.
Independent Thought, an organization working on the issue of child rights, has filed a
Public Interest Litigation in the Supreme Court of India on this issue and has requested
the Supreme Court to declare the exception allowing marital rape within prohibited child
marriage as unconstitutional51. The petitioner contends that Exception 2 to Section 375
of IPC, as amended by Criminal Law (Amendment) Act, 2013, is violative of Articles 14,
15 and 21 of the Constitution. The petitioner has also raised the following contentions52:
(i) The said provision discriminates between a girl child aged between 15 to 18 years
and those aged below 18 years on the ground of marriage which has no rationale
nexus to the purpose sought to be achieved. Thus, this classification is not a
reasonable classification and thus is violative of Article 14 of the Indian
Constitution.

51
http://ithought.in/action_pil.html, (accessed on 24 Feb, 2019)
52
http://www.ithought.in/download/2014/PIL-Short-Note.pdf(accessed on 24 Feb , 2019)
 42

(ii) The age for grant of consent for sexual relationship has increased over a period of
time from 10 years in 1860 to 16 years in 1940 and now the same has been
increased to 18 years in normal cases by way of Criminal Law (Amendment) Act,
2013. There is no justification whatsoever to maintain the age at 15 years only
because the girl child is married. Thus, the provision is arbitrary and violates
Article 14 of the Constitution.
(iii)By virtue of provisions of Juvenile Justice (Care and Protection of Children) Act,
2000 and provisions of Protection of Children from Sexual Offences Act, 2012,
Parliament has recognized that a girl less than 18 years is a child and therefore,
she is not in a physical and mental condition to take an informed decision as to
sexual relationship. In such circumstances, there is no reason for Parliament to
retain the age of 15 years in Exception 2 of Section 375 of IPC. Hence, the said
provision is arbitrary and violates Article 14 of the Constitution and thus is liable
to be struck down.
(iv) The Parliament has failed to take notice the recommendation of the Law
Commission made in 84th Report and 172nd Report. The Law Commission of
India, way back in 1971 in its 84th report, has recommended, “The minimum age
of marriage now laid down by law (after 1978) is 18 years in the case of females
and the relevant clause of section 375 should reflect the changed attitude. Since
the marriage with a girl below 15 years of age is prohibited (though it is not void
as it is a matter of personal law), sexual intercourse with a girl below 18 years of
age should also be prohibited.” 53
The Law Commission though in its 172nd report has changed its view and recommended
that the age of consent should be increased to 16 in the cases of marital rape 54 but the
Parliament completely ignored the views of the Law Commission and maintained status
quo in this respect.
(v) While Protection of Children from Sexual Offences Act, 2012 protects and
secured girls between ages of 15-18, the Exception Clause of Section 375 of
Criminal Law (Amendment) legalizes penetrative sexual assault; a clear
contradiction in law.
(vi) Parliament has failed to note that various medical studies and data show that
pregnancy in a girl, less than 18 years, is detrimental not only to the health of the
girl, but also to the child in the womb, Parliament by permitting lawful sexual
intercourse with a girl aged 16 to 18 years who is, in a matrimonial relation, has
put the lives of lakhs of such girls at risk and also the lives of children in their
womb at considerable risk.
(vii) For that Parliament could not have upheld the right of the parents to
violate the rights of their daughters who are less than 18 years, who have the
right, like any other citizen, to grow in the best way possible manner, without
being forced into sexual intercourse only on the ground that they have been
married of by their parents.

53
Law Commission of India 84th report, p- 9
54
Law Commission of India 172nd report, para 3.2.3
 43

The petition is still pending before the Supreme Court of India. There are demands from
several other quarters also from criminalizing marital rape within prohibited child
marriages. Let us hope that the Supreme Court will clear the legal confusion in this area
and declare the exception allowing marital rape within prohibited child marriage as
unconstitutional.

3.14. RAPE OF A WIFE LIVING SEPARATELY

At present under the Indian Law, non-consensual sexual intercourse by a man with his
own wife, who is living separately, is considered a crime. Section 376B of the Indian
Penal Code as amended by Criminal Law Amendment Act, 2013 states that “if a man has
sexual intercourse with his own wife, who is living separately either under a decree of
separation or otherwise, without her consent, shall be punished with an imprisonment of
either description of a term which shall not be less than two years but which may extend
to seven years and shall also be liable for fine.”
Thus, this provision is available not only for a judicially separated wife but also for any
wife who is living separately, whether under a decree of separation or due to any to other
reason.
Till 1983, the Indian Penal Code contained no such provision and Exception to section
375 imposed a blanket ban on the possibility of rape of a woman by his own husband if
she was above 15 years of age. It was for the first time the Law Commission of India,
which is in its 42nd report pointed out that the exception to section 375 of the Indian Penal
Code fails to take note of one special situation, namely, when the husband and wife are
living apart under a decree of judicial separation or by mutual agreement. In such a case
the marriage technically subsists and if the husband has sexual intercourse with her
against her will or without her consent, he cannot be charged with the offence of rape.
The Law Commission did not consider it to be right and was of the opinion that in such
circumstances, sexual intercourse by a man with his wife without her consent should be
considered as rape. In the light of the aforementioned reasons, the Law Commission
recommended to add an Explanation to section 375, which states that “a woman living
separately from her husband under a decree of judicial separation or by mutual agreement
shall be deemed not to be his wife for the purpose of this section”55

55
Law Commission of India 42nd Report, p- 278
 44

Though this report was submitted to the Government of India way back in 1971 but the
government failed to take any step in this direction till 1983. It was the Anti rape
movement of 1980s, which started after the infamous judgment of the Supreme Court of
India in Mathura Rape case, which forced the government to introduce a Bill to reform
the Rape Laws in India. The Bill has taken into account the recommendation of the Law
Commission but diluted the provision by prescribing a very mild punishment in such
cases. Criminal Law Amendment Act, 1983 inserted section 376 A (present 376 B) to the
Indian Penal Code, which criminalised the non-consensual sexual intercourse by a man
with his wife, who is living separately from him under a decree of separation or under
any custom or usage but this section prescribed a meagre punishment of maximum two
years imprisonment.
In 1997, Sakshi, a non-governmental organization working on women’s issues, filed a
writ petition before the Supreme Court of India and raised several issues related to law
relating to sexual offences in India. The Supreme Court by order dated 9th August, 1999
requested the Law Commission to examine the issues raised by Sakshi. The Law
Commission in response came up with 172nd report. This report, among other issues
discusses the issues of rape of judicially separated wife.
Representatives of Sakshi wanted the Law Commission to recommend the deletion of
section 376 A (present section 376B) as well as the exception to section 375. Their logic
was that when a man who causes hurt or any other physical injury to his own wife is
liable to be punished for such offence like any other person causing such hurt or physical
injury, why should a husband who sexually assaults his wife, who is living separately
under a decree of separation or under any custom or usage, be not punished like any other
person. Section 376A (present section 376B), which provides a lesser punishment to a
husband who sexually assaults his own wife living separately in the aforesaid
circumstances, they argued, is arbitrary and discriminatory. They were of the view that
once section 376A is deleted; the husband in such a case would be punished under
section 376(1) which carries higher punishment than section 376A. While the Law
Commission appreciated the force of the said argument in the context of the wife who is
living separately under a decree of separation or under any custom or usage but the Law
Commission was at the same time of the view that it cannot ignore the fact that even in
 45

such a case the bond of marriage remains unsevered. Because of the above mentioned
reasons, the Law Commission recommended that that this section should be retained on
the statute book56but it recommended the enhancement of the punishment to a minimum
2 years and maximum 7 years of imprisonment. Despite this recommendation being made
way back in 2000, the Parliament did not take any step in this direction and it was only
after the Nirbhaya movement, when again public protests forced the Parliament to
reconsider rape law reforms that in 2013, the Criminal Law Amendment Act, 2013 was
passed. This Amendment renumbered this section from section 376A to section 376B.
This Amendment among other things brought two significant changes with regard to this
issue. First, it is no more the wife, who is living separately only under a decree of judicial
separation or under a custom or usage but any wife, who is living separately due to any
reason can bring an action under section 376B (old 376A). Second, the punishment was
enhanced from a maximum of two years of imprisonment to minimum two years and
maximum seven years of imprisonment. Both these changes can be said to be positive
changes but most people are not yet aware of these changes.

3.15. RAPE OF A WIFE ABOVE 15 YEARS OF AGE AND NOT LIVING

SEPARATELY
If the wife is above fifteen years of age and is not living separately, the Indian Law gives
complete immunity to her husband from being liable for her rape. This coldly worded law
is contained in Exception 2 to section 375 of the Indian Penal Code, which states:-
“Sexual Intercourse or sexual acts by a man with his own wife, the wife not being
under fifteen years of age, is not rape”.
Thus, in India a wife unless she is below 15 years of age or is living separately, cannot
even put an allegation on her husband that he has raped her no matter what all might be
the circumstance no matter how brutally he might have acted. The validity of this
exception will be tested on the touchstone of the International Human Rights Instruments
and the Indian Constitution. The arguments in favour of and against this exception will
also be analysed in detail afterwards but at present we will try to find out whether any
remedy is available to the victim of marital rape under the Indian Law.

56
Law Commission of India 172nd Report para 3.3
 46

To our surprise, the research found that there are two legal provisions which can
somehow help the victim of marital rape. One remedy is available to such woman under
Criminal Law. She can file a case of cruelty under section 498A of the Indian Penal
Code. The definition of the term cruelty is contained in two clauses and some of the cases
of marital rape may fall under the first clause of this definition. This clause states that
‘cruelty’ means any wilful conduct, which is of such a nature as is likely to drive the
woman to commit suicide or to cause grave injury or danger to life, limb or health
(whether mental or physical) of the woman.
Thus, if a woman who has been forcibly subjected to sexual intercourse by her husband
in such a manner that it is likely to drive the woman to commit suicide or to cause grave
injury or danger to her life, limb or physical or mental health, then she can bring a
criminal case against her husband under this section and a maximum punishment of three
years imprisonment can be imposed on her husband. This remedy has been criticised
firstly on the ground that all the cases of marital rape will not fall under this clause and
secondly the punishment prescribed under this section is not proportionate to the gravity
of the offence of marital rape. The most unfortunate part is that there is wide ignorance of
the first clause of section 498A not only among common masses but also in the legal
circles. Interaction with lawyers, law students and even law teachers revealed that section
498A is famous only as anti dowry harassment provision and its misuse is more famous
than its potential use. Without going into the merits of the allegations of widespread
misuse of section 498A, it is felt that owing to ignorance, the first clause of this section is
hardly used for the purposes of saving the women from forcible sex by her husband. The
researchers were unable to find any case law, where the courts have convicted any
husband for forcible sex under section 498A. There is a need to popularize that this
provision could be used in the cases of marital rape.
The research found that since 2005 the victim of marital rape can get remedy under civil
law as well. Because of the efforts of women’s rights organisations, activists and
academicians, in 2005, the Parliament of India passed Protection of Women from
Domestic Violence Act, 2005. This legislation for the first time provided civil remedy to
the victims of domestic violence. Section 3 of this Act defined the term ‘Domestic
Violence’ and included sexual abuse within the definition of the term Domestic Violence.
 47

Explanation I (ii) of section 3 defines the term ‘sexual abuse’ as including any conduct of
a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of
woman.
Thus, forced or non consensual sexual intercourse by a husband with his wife will come
within the definition of the term sexual abuse and thus will fall within the category of
domestic violence. So, a victim of marital rape can approach either of the four authorities
under this Act i.e. the Protection Officer, Service Provider, Police or Magistrate. The
remedies, which can be made available to her by the Magistrate, are Protection Orders,
Residence Orders, Monetary Relief, Custody Order and Compensation Order.
The Magistrate may direct the respondent or the aggrieved person to undergo counselling
either jointly or singly with any member of a service provider. In the cases of marital
rape, the most important remedy which might be available to her will be Protection
Order. If the respondent commits the breach of protection order or interim protection
order, then he can be punished with an imprisonment of either description for a term
which may extend to one year or with fine which may extend to twenty thousand rupees
or with both.
Sadly there is wide ignorance about this provision as well and not only the common men
but law persons also have expressed their opinion that the victim of marital rape has no
remedy available under the India. It is reemphasised that everyone needs to be made
aware of the remedies available to such victims.
There is one more legal provision, which can be used in certain cases of marital rape i.e.
section 377 of the I.P.C. Recently, Additional Session Judge Kamini Lau of Delhi
admitted a petition and denied bail to the husband where the woman alleged being
sodomised by her husband.57 Though she stated in her order that the non –recognition of
marital rape in India, a nation set up on the bed rock of equality is gross double standard
and hypocrisy in law, which is central to subordination and subjugation of woman, she
was able to use law only because there was an allegation of sodomy in the petition as
well. Thus, it becomes clear that a woman who has been forced for oral or anal sex by her
husband can file a case against him under section 377 of the Indian Penal Code but

57
http://www.thehindu.com/news/cities/Delhi/nonrecognition-of-marital-rape-is-hypocrisy-
court/article6473013.ece, (accessed on 25 Feb, 2019)
 48

because of the effect of exception 2, a woman who has been forced for vaginal sex cannot
file a case under section 375 of the India. There has been consistent demand from various
quarters that this Exception needs to be deleted and marital rape should be criminalized in
all circumstances. One of the objects of this research is to find out whether this
exemption clause needs to be deleted or not. With that goal in mind, let us now have a
look upon the steps taken in India so far in this direction.
3.16. TOWARDS CRIMINALIZING MARITAL RAPE
Women’s Right Organizations, activists and academicians have been demanding the
deletion of Exception 2 of section 375 ( the old exception to section 375) of the Indian
Penal Code as amended by Criminal Law Amendment Act, 2013 for a very long time but
the recent years have seen a lot of activity going on in this direction. It was Justice J.S.
Verma Committee, which for the first time recommended criminalization of marital rape
in India and thus initiated a nationwide debate on this issue. Let us thus have a look on
the recommendation of Justice J.S. Verma Committee on the issue of marital rape.

3.16.1. Recommendation of Justice J.S. Verma Committee on Marital Rape

The brutal gang rape of a 23 year old physiotherapy student Nribahya on 16 December,
2012 by six men in a moving bus shocked the conscience of the society. People came on
street and started demanding justice for the victim. Slowly these public protests converted
into a Nation-wide movement for rape law reforms. This movement forced the
government of India to constitute a Committee, chaired by Justice J.S. Verma and
consisting of Justice Leila Seth and Gopal Subramanium as members. This Committee,
among other things, favoured criminalization of marital rape in India. The Committee
was of the opinion that the exemption for marital rape stems from a long outdated notion
of marriage which regarded wives as no more than the property of their husbands.58
According to common law, the wife was deemed to have consented at the time of the
marriage to have intercourse with her husband at his whim. Moreover, this consent could
not be revoked. The Committee further noted that this immunity has now been withdrawn
in most of the major jurisdictions of the world. The Committee cited the example of
England and Wales, European Union, Canada, South Africa and Australia. The

58
Justice J.S. Verma Committee Report, p- 125
 49

Committee therefore recommended that the exception for marital rape be removed. The
Committee further recommended that the law ought to specify that59
(i)
A marital or any other relationship between the perpetrator or victim is not a
valid defence against the crimes of rape or sexual violation.
(ii) the relationship between the victim and the complainant is not relevant to the
inquiry into the fact whether the complainant consented to the sexual activity
and
(iii) the fact that the accused and victim are married or in another intimate
relationship may not be regarded as a mitigating factor justifying lower
sentences for rape.
The Committee relied upon the view of Prof. Sandra Fredman of the University of
Oxford that “training and awareness programmes must be provided to ensure that all
levels of the criminal justice system and ordinary people are aware that marriage should
not be regarded as extinguishing the legal or sexual autonomy of the wife.”60
It is heartening to note that this recommendation of the Committee got wide publicity
and initiated a nationwide debate on the issue of marital rape. The debate reached the
Department related Parliamentary Standing Committee on Home Affairs, which was
scrutinizing the Criminal Law Amendment Bill, 2013. Let us have a look on the
recommendation of the Standing Committee in this regard.

3.16.2. Recommendation of Department related Parliamentary Standing

Committee on Home Affairs on marital rape
Criminal Law Amendment Bill, 2012 which was introduced in the Lok Sabha on 4 th
December, 2012 was referred to the Department related Parliamentary Standing
Committee on 28th December, 2012. Shri M. Venkaiah Naidu was the Chairman of the
Committee. The Committee invited suggestions from the states, union territories and
public at large. It scrutinized all these suggestions and initiated a discussion on the
Criminal Law Amendment Bill, 2012. Some members of the Committee suggested that
somewhere there should be some room for wife to take up the issue of marital rape. They
further opined that no woman takes marriage so lightly that she will just go and complain
blindly. They were further of the opinion that consent in marriage cannot be consent
forever. However several members felt that the marital rape has the potential of
destroying the institution of marriage. The Committee felt that if a woman is aggrieved

59
Id p-129
60
Id p-130
 50

by the acts of her husband, there are other means of approaching the court. The
Committee further observed that in India, for ages, the family system has evolved and it
is moving forward. Family is able to resolve the problems and there is also a provision
under the law for cruelty against women. The Committee further felt that if the marital
rape is brought under the law, the entire family system will be under a great stress and the
Committee may perhaps be doing more injustice.61
The view of the Committee was surprising when it said that marital rape has the potential
of destroying the institution of marriage. What it failed to look into is the fact that rape
occurs within marriage and criminalizing marital rape will deter men from raping their
wives and in this way, it will not only save the institution of marriage but also make
husband and wife equal partners in marriage. The immunity granted to the Husband
under the present law gives an unequal supremacy to husbands and some of them
consider this immunity as a license to rape their wives. A similar fear was felt by many,
when the Hindu Code Bill was being discussed inside and outside the Parliament that the
introduction of the concept of divorce under Hindu Law will destroy the institution of
marriage but sixty years have passed since the enactment of Hindu Marriage Act, 1955
the institution of marriage still survives. It is now proved beyond reasonable doubt that
their fear was baseless. Similarly the fear expressed by the Committee members at
present is also not well founded. 104 countries of the world have criminalised marital
rape but nowhere this criminalization has become a stress on the family system. In most
of these countries the problem, which still persists, is that very few women have the
courage to file complaints against their husbands. The purpose of the law has always
been to strengthen weak hands but the present law in India has strengthened the strong
hands by granting them a complete immunity from any possibility of prosecution for rape
of their own wives. In the garb of family system, majority of the Committee members
sided with patriarchy, which is unfortunately not considered a problem but as normal in
our country. It appears that the Committee was really fearful, fearful to take an opinion
against the dominant sections of the society and fearful to acknowledge before the world
that rapes occur within marriage, which they boast to be sacrament. The shame which has

61
Department related Parliamentary Standing Committee Report on Home Affairs One Hundred
Sixty Seventh Report on the Criminal Law (Amendment) Bill, 2012 p- 47
 51

been associated with the offence of rape and which prevents the victim and her family
members in large number of cases to report these cases seems to have affected the
Committee members, who are finding ways and means to hide that this problem exists in
our society as well. Had the family been so able to solve the problems, what was the need
of Family Courts? Why to waste so much of public resources on them? The Family
courts deal with the problems like divorce, maintenance, custody and guardianship which
are not as grave as marital rape. The patriarchy is so deep ingrained in our society that the
views of women, their rights and their well being hardly matter in a large number of
cases. If the family has to decide an issue, there is a fear that they might ignore what is
right and what is wrong and decide an issue in favour of the person who is more
powerful.
As far as the law relating to cruelty is concerned, it is hardly any remedy for the victim of
marital rape. Under section 498A, only those wilful conduct which are of such nature as
is likely to drive a woman to commit suicide or to cause grave injury or danger to life,
limb or health (whether mental or physical) of the woman. Though certain cases of
marital rape can be covered by this section but there will be many which might not fall
within the purview of this section. What if a woman has been raped by her husband but
this act is not likely to drive her to commit suicide or it does not cause grave injury or
danger to her life, limb or health? Even if it does, it will be very difficult to prove.
Moreover the courts, just after seeing the exception to section 375 are more likely to
dismiss the petition on the very threshold. Moreover the punishment of maximum three
years is nothing in comparision to the gravity of the offence of marital rape. It is a matter
of extreme regret that majority of the members of the Standing Committee have exposed
their double standards with respect to the same act when committed by a stranger and
when committed by husband.
But some progressive voices emerged from within the Select Committee. Shri D. Raja,
member, Rajya Sabha representing Tamil Nadu (Communist Party of India) and Shri
Prasanta Chatterjee, member, Rajya Sabha representing West Bengal (Communist Party
of India Marxist) submitted their notes of dissent on the 167th report of the Department
related Parliamentary Select Committee on Home Affairs on the Criminal Law
Amendment Bill, 2012. They expressed their dissatisfaction with the way in which the
 52

recommendations of the Verma Committee report have been diluted. They were of the
opinion that exemption of marital rape from being considered a crime under section 375
of the Indian Penal Code is contrary to the provisions of the Indian Constitution which
considers all women as equal human beings who have a right to live with dignity and free
from violence within and outside marriage. They were also of the opinion that this
exemption is also contrary to the Verma Committee report which had pointed out that the
exemption from marital rape stems from a long outdated notion of marriage which
regarded wives as no more than property of her husband whereas marriage in modern
times is regarded as partnership of equals. 62
The dissenting opinions of both these Honourable members show that even within the
Parliament, there is a small group of members who are in favour of criminalising marital
rape. It is hoped that in future these Parliamentarians may become successful in
convincing their colleagues and bring a Historic reform in the Law relating to Sexual
Offences in India.

3.16.3. Parliamentary Debates on the issue of criminalization of Marital

Rape
From the Select Committee, the debate on the issue of marital rape reached the
Parliament twice though both the times the government turned down the issue of
criminalization of marital rape but it is heartening to note that the discussion on this issue
has at least begun.
For the first time, the debate on the issue of criminalization of marital rape occurred
during the discussion on the Criminal Law Amendment Bill, 2012. Sandeep Dikshit, an
M.P. from Congress (the then ruling party at the Centre) requested fellow
Parliamentarians to enlighten him on the issue whether marital rape should be made a
crime or not. Sumitra Mahajan, then an M.P. from BhartiyaJanta Party (present Speaker
of Lok Sabha) speaking after him, was of the opinion that marital rape should not be
made a crime as it is not in accordance with our social system or family system. She told
the house that such issues need to be tackled through counselling and in our Indian
society; elders have been working as a buffer and playing a significant role in resolving
matrimonial disputes. She further opined that making marital rape a crime will not

62
Id p-81
 53

resolve matrimonial dispute rather it will increase the same. She even echoed the demand
of her party to delete section 376B, which deals with the rape of a wife living separately
but this demand was not accepted by the then government.
Mrs. Mahajan’s opinion reflects the widely prevalent thinking of considering marital rape
as a matrimonial dispute but that is far from truth. Rape is a rape, no matter who commits
it. In fact Psychologists and medical experts are of the unanimous opinion that marital
rape can be more traumatic than stranger rape. Suffering at the hands of a spouse, who is
usually a source of trust and care, produces feelings of betrayal, disillusionment, and
isolation in the woman. Thus there is no logic behind treating marital rape as just a mere
matrimonial dispute. Even Ms. Mahajan’s suggestion of resolving such issues through
counselling does not appear to be sound. Under the Protection of Women from Domestic
Violence Act, 2005, there is a provision of sending the victim and the respondent for
counselling. A female victim of sexual violence by her husband are also sent for
counselling but these counselling are hardly effective as the husbands many a times feel
that they have committed no wrong by raping their wives. This fact was revealed by
ShaminaShafiq, who is a member of National Commission for women and has a long
experience of working on women’s issues.63 Thus we find that the suggestion of Mrs.
Sumitra Mahajan is not supported by experts working in this area but sadly inside the
Parliament, nobody contradicted her opinion. Moreover many of the members of the
House were busy in expressing their fear that such provisions will be misused by women.
Mr. A. Sampath, member of Parliament from Attingal, Kerala representing Communist
Party of India (Marxist), was the only member who spoke in favour of criminalization of
marital rape. He raised the question why should the exception to section 375 which grants
exemption to husband for raping his wife not below 15 years be there. He further
countered the issue raised by many members that criminalising marital rape has the
potential of being misused by stating any law for that matter can be used or misused and
that fear should not stop the Parliament from making laws.
On 29 April, 2015, the issue of criminalisation of marital rape was again raised in the
Parliament. DMK MP Kanimozhi, through a question submitted in the Rajya Sabha,
asked Minister of State for Home Affairs HaribhaiParathibhai Chaudhary whether the

63
https://www.youtube.com/watch?v=ibTz9mSnUf4, (accessed on 25 Feb, 2019)
 54

government would bring in an amending Bill to the Indian Penal Code to remove the
exception of marital rape from the definition of rape in the light of the U.N. agencies’
findings and recommendations. Mr. Chaudhary, in his written reply, said that while the
U.N. Committee on Elimination of Discrimination against Women had recommended
that India criminalise marital rape, India’s Law Commission had not recommended this,
and the government had no plan to bring in an amendment.
“It is considered that the concept of marital rape, as understood internationally, cannot be
suitably applied in the Indian context due to various factors — e.g. level of
education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset
of society to treat marriage as a sacrament, etc,” Mr. Chaudhary said. 64
But Ms. Kanimozhi expressed her disagreement with the Minister in the following words,
“I accept that the institution of marriage is an integral part of our social structure. Many
people across many faiths hold it sacred. But it has not stopped us from bringing the anti-
dowry law or domestic violence legislation”. She further stated, “Today, we are more
receptive to women’s rights and issues. This is not against our culture. It is about
protecting our women from violence and abuse”. 65
She has also introduced a Private
Member Bill seeking the removal of the marital rape exception from the Indian Penal
Code.
While Mr. Chaudhary’s reply referred to the Law Commission’s report of 2000, it did not
talk of the more recent Justice Verma Committee report of 2013 on sexual violence laws
which said that the exemption for marital rape “stems from a long out dated notion of
marriage which regarded wives as no more than the property of their husbands” and
recommended the removal of the marital rape exception. However the Criminal Law
Amendment passed by the UPA following the report also avoided the marital rape
question.
Senior advocate Vrinda Grover said that this was against the principle of upholding a
woman’s bodily integrity which underlay the amendment. She further expressed her

64
‘Indian not to criminalize marital rape”, The Hindu, April 29, 2015
http://www.thehindu.com/news/national/concept-of-marital-rape-cannot-be-applied-in-
india/article7154671.ece , (accessed on 26 Feb, 2019)
65
Ibid
 55

opinion the reason why they are not bring a laws to make marital rape a crime is that
Parliament is full of Patriarchal and conservative people. 66
Thus, we find that the issue of criminalization of marital rape has been discussed in the
Parliament twice and though the majority did not agreed with it but there were some
forceful voices advocating the same. The Parliamentary debates have given rise to a
discussion on this issue even outside the Parliament. Various television channels have
organised panel discussion on this issue and several articles have been published on this
issue in various newspapers. This is good beginning for the Indian society, which was so
far reluctant to acknowledge that such things happen. Democracy is the government of
debates and discussions. Let us hope that this beginning will take us some more steps
ahead in this direction.

3.17. MARITAL RAPE AND THE INTERNATIONAL LAW OF HUMAN RIGHTS

The most cherished right of a human being available to him just by virtue of being born a
human is right to life. Right to life does not only mean mere animal like living rather it
means right to live with human dignity. Rape per se is an offence, violating the dignity
and self respect of a woman and when it occurs within the four walls of a matrimonial
home, it reduces the woman to the status of an object used merely for sexual gratification.
67
Thus marital rape is not merely an offence rather it is violation of the most precious
human right of woman i.e. the right to live with human dignity.
The Universal Declaration of Human rights in its Preamble has proclaimed that the
recognition of inherent dignity and equal and inalienable rights of human is the
foundation of justice, freedom and peace in the society. In its thirty articles, the
Universal Declaration has laid down a common standard of achievement for all people
and all nations. Article 16 of the Universal Declaration has declared that men and
women, of full age have right to marry and found family and they shall have equal rights
as to marriage, during the marriage and at its dissolution. The exception II of section 375
which grants complete immunity to the husband from the charge of rape of his wife
above 15 years of age and not living separately clearly violates this right and it gives
freedom to the husband to sexually exploit his wife whenever he wishes. In this way, it

66
Ibid
Dr. Bhavish Gupta and Dr. Meena Gupta, ‘Marital Rape: Current Legal Framework and Need for
67

change”, Galgotias Journal of Legal Studies 2013 GJLS Vol. 1, No. 1

 56

gives an upper hand to the husband and thus denies an equal right to woman during
marriage.
The International Covenant on Civil and Political Rights, which is a legally binding
document and has been signed and ratified by India, has under Article 23 (4) imposed an
obligation on the state parties to ensure that the no marriage shall be entered into without
the free and full consent of the intending spouse. Article 23(5) further imposes the
obligation on the states to take appropriate steps to ensure the equality of rights and
responsibilities of spouse as to marriage, during marriage and its dissolution. Indian
government has taken no step to ensure that the marriages are entered into by the free
consent of the parties and thus no attempt has been made so far to fulfil the first
obligation. By retaining the marital rape exception under Exception II of section 375 of
the Indian Penal Code, India is committing the breach of the second obligation as well.
India has also signed and ratified the Convention on Elimination of all forms of
Discrimination against women. Under Article 2 (g) of this Convention also, India is
under a duty to repeal all national penal provisions, which constitute a discrimination
against woman. 68 Declaration on Elimination of Violence against women, adopted by the
United Nations General Assembly in the year 1993 has firmly established marital rape as
violation of Human rights.
The United Nations Committee on Elimination of Discrimination against women in 2007
have called on the Indian government to remove the exception of marital rape from the
definition of rape and define marital rape as a criminal offence.69 The Special Rapporteur
on Violence against women has also asked the Indian government to include the
definition of marital rape as a criminal offence. 70 Indian government has retained the
marital rape exemption and has allowed the husbands to have complete sexual control
over their wives, which is in direct contravention to these human right regulations.71
3.18. MARITAL RAPE AND THE CONSTITUTION OF INDIA

68
http://www.ohchr.org/Documents/ProfessionalInterest/cedaw.pdf,( accessed on 2nd April, 2015)
69
Concluding Comments of the Committee on the Elimination of Discrimination against Women:
India (CEDAW/C/IND/CO/3), 2 February 2007, para. 23
70
http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session26/Documents/A-HRC-26-38-
Add1_en.doc,(accessed on 2 March, 2019)
71
StellinaJollly and M.S. Raste “Marriage and Rape: Reflections on Past, Present and
Future”, Journal of Indian Law Institute, Vol 48, No 2. April -June 2006, p 277
 57

The Constitution of Indian in Part III has guaranteed several fundamental rights to its
citizens. Some of these rights are available to non-citizens as well. All these rights are
available without any distinction to women as well. Under Article 13, the State is under a
duty not to make any law, which is inconsistent with the fundamental rights guaranteed
under this Part. Most important of these fundamental rights is the right to life guaranteed
under Article 21, which has been interpreted by the Supreme Court as right to live with
human dignity. In BoddhisatvaGautam v Subhra Chakraborty72,the Supreme Court of
India has declared that rape is a crime against human rights and a violation of the victim’s
most cherished right of fundamental rights, i.e. right to life contained in Article 21. If
rape is a violation of right to life, there can be no reason to believe why it will not be so if
the aggressor happens to be victim’s husband. Exception II of section 375 on the face of
it appears to be violative of this right and thus inconsistent with Article 21 of the
Constitution.
Article 21 has been interpreted to include right to privacy, which means right to be left
alone. Any form of forceful sexual intercourse violates the right to privacy. It is
submitted that the marital rape exemption violates right to privacy and in effect violates
Article 21 of the Constitution. This exception is also violative of right to bodily self
determination, right to privacy and right to good health, all of which are integral part of
right to life. At its core, this provision of Law is unconstitutional though so far the
Supreme Court has not got the opportunity to decide its Constitutional validity.
Under Article 14 of the Indian Constitution, right to equality has been guaranteed to all
the persons. This Article does not require everyone to be treated equally in all
circumstances rather it requires that equals within the society are not treated unequally
and the non-equals within a society are not treated equally. Thus, this article allows
classification but the classification has to be reasonable. The Supreme Court in State of
West Bengal v Anwar Ali Sarkar73has laid down the test of reasonable classification:-
(i) The classification has to be founded on the intelligible differentia, which
distinguishes those that are grouped together from others
(ii) The differentia must have rationale nexus with the object to be sought by this
legislation.

72
1996 SCC (1 ) 490
73
AIR 1952 SC75, 80
 58

Exception II of section 375 of the Indian Penal Code classifies women into two
categories- women who are raped by their husband and women who are raped by
someone else. This classification rests on the assumption that married women do not need
the protection of law within their private spheres. The assumption further stems from the
fact that in marriage, women are presumed to have given an irrevocable consent to sex to
her husband. It is submitted that such an assumption is wrong, irrational and not based on
any intelligible differentia. The rest of section 375 is interested in protecting the right of
the rape victim but this right is withdrawn in case the perpetrator is her own husband. It
takes away a woman’s right of choice and deprives her of her bodily autonomy and her
personhood. Thus, the classification is unnecessary and unintelligible and thus violates
the mandate of Article 14.74

3.19. MARITAL RAPE AND THE OPINION OF PHILOSOPHERS

From the beginning of the 19th century women’s movement, activists started challenging
the presumed right of men to engage in forced sexual intercourse with their wives. Lucy
Stone singled out women’s right to control marital intercourse as the core component of
equality. She once famously said, “It is very little to me to have the right to vote, to own
property, etc., if I may not keep my body, and its uses, in my absolute right. Not one wife
in a thousand can do that now.”75
Lucy Stine even in that time was quite vocal on this issue but she was not alone in her
fight against marital rape and was supported by many.
British Liberal Feminist John Stuart Mill and Harriet Taylor also attacked marital rape. In
their opinion, it was gross double standard in law and central to women’s subordination.
They compared the condition of a wife with that of a slave and found her condition to be
worse than that of the slave. John Stuart Mill once famously said, “Marriage is the only
actual bondage known to our law. There remain no legal slaves, except the mistress of
every house. A female Slave has an admitted right and is considered under a moral
obligation to refuse her master the last familiarity not so the wife however brutal and
unfortunate a tyrant she may be chained to…though she may know that she hates her ,

74
Supra note 56
75
Letter from Lucy Stone to Antoinette Brown (1855), quoted In Diana E.H.Russell, ‘Rape In Marriage’ p-
27 (2d ed. 1990)
 59

though it may be his daily pleasure to torture her , and though she may feel it impossible
not to loathe him …he can claim from her and enforce the lowest degradation of human
beings that being made the instrument of an animal function contrary to her
inclinations.”76J.S. Mill was far ahead of his time, he attacked the marital rape exemption
in the year 1869, at that time there were hardly any nation where this exemption was
abolished.
Bertrand Russel in his book Marriage and Morals deplored the situation of married
women. He wrote, “Marriage is for women the commonest mode of livelihood and the
total amount of undesired sex endured by women is greater in marriage than in
prostitution.”77 The views of Bertrand Russel have been substantiated by the research
conducted by Diana Russel, who interviewed over 900 randomly selected women and
found that while 3% had experienced completed rape by stranger, 8% had experienced
completed rape by husband.

3.20. HISTORICAL BACKGROUND OF MARITAL RAPE EXEMPTION

Originally, the word ‘rape’ was akin to Latin term ‘rapine’ or ‘rapere’ and referred to the
more general violations – looting, destruction, enslavement, talking away and capture of
citizens-inflicted upon a tribe, town, city or country during war.78 Compensating the
father for the rape of daughters was institutionalized in ancient law. Susan Brown Miller
stated that “Rape entered the law through the back door, as it were as a property crime of
man against man. It was theft of virginity, an embezzlement of his daughter’s fair price in
the market”.79 Sexual connotation associated with it came much later and then developed
an inseparable link between rape and marriage as both sort to regulate sexuality. The
relationship between marriage and rape can be traced backed to some religious texts like
the Bible provides “if a man happens to meet a virgin who is not pledged to be married
and rapes her and they are discovered he shall pay the girl’s father fifty shekels of silver.
He must marry the girl, for he has violated her. He can never divorce her as long as he

76
J.S. MILL, The Subjection of Women, in Three Essays (1912) p-463 quoted in Sandra L. Ryder &
Sheryl A. Kuzmenka, Legal Rape: The Marital Rape Exemption, 24 J. Marshall L. Rev. 393 (1991)
77
http://www.notable-quotes.com/r/russell_bertrand.html, (accessed on 3rd March, 2019)
78
Stellina Jolly and M.S Raste “Rape and Marriage :Reflections On the Past Present and Future.” 48
JILI 283 (2006)
79
Ibid
 60

80
lives.” Following this the Babylonians considered and put down that if the rapist is
unmarried, he should pay the father of the victim three times the marriage price and
81
marry the victim. This historic relationship between rape and marriage is seen to have
given rise to the exemption of marital rape.
Throughout the history of most societies it has been acceptable for men to force their
wives to have sex against their will.82The traditional definition of Rape in most countries
was “sexual intercourse with a female not his wife without her consent”. This provided
husbands with an exemption from prosecution for raping their wives .The marital rape
exemption came to be seen as a licence to the husband to rape their wives.83 The
foundation of this exemption can be traced back to the Statements made by Sir Mathew
Hale Chief justice in 17th century England. Lord Hale wrote that “the husband cannot be
guilty of rape committed by him on his lawful wife, for by their mutual matrimonial
consent and contract the wife hath given herself up in this kind unto her husband which
she cannot retract.”84 For over a period of 330 years this statement has been used to
justify the concept of marital rape exemption and has served the backbone for judicial
recognition of spousal immunity.85the basic principle behind this provision is that the
husband is the lord and master of his wife and has full authority and control over the
person and body of his wife and sexual intercourse between the husband and the wife
,even without her consent is lawful as it is the husbands marital right.86Lord John Holt,
CJ described the act of a man having sexual relations with another man's wife as "the
highest invasion of property".87
Thus we can Marital rape exemption was a vestige of the common law. 88 However what
is surprising to note is the fact that when Sir Mathew Hale made this statement which
became the backbone of spousal immunity for centuries, he had no argument, case law or
legal basis to support his statement. Some critics believe that this exemption had its

80
The NIV Bible, Deuternomy 22:28.Also see supra note 25 at 279
81
Ibid
82
Subash Chandra, ‘‘Marital Rape: How offensive is it’’, Cri.L.J 194-203 (2009)
83
Id. at 194
84
Sir Mathew Hale, History Of the Pleas Of the Crown, 629 (1736)
85
ManjulaBatra ‘‘Marital Rape- Is there a remedy’’, 10(1) MDU.L.J 216 (2005). P 207
86
Ibid
87
Ibid
88
Sudhansu Roy and Iti Jain, ‘‘Criminalization Marital Rape in India: A Constitutional Perspective”,
Cri. L.J 81-92 (2008)
 61

origin in the concept of ‘marital debt’ in medieval moral theology and the law of church.
The concept derived from biblical statement on marriage that” both the husband and the
89
wife had a duty to perform sexually at the request of the mate” Some say that it was
hales on creation based on the contractual principles. This theory of implied consent
came up as both a novel idea as well as a fallacious one.90
Hale's comments were discussed in the Virginia case of Weishauptv. Commonwealth,91
the court held that "the true state of English commonlaw was that marriage carried with it
the implied consent tosexual intercourse; but that consent could be revoked.The court
stated that "Hale's statement was not law, common or otherwise. At best it was Hale's
pronouncement of what he observed to be a custom in 17th century England."92 The court
concluded that English common law never recognized an absolute irrevocable marital
exemption that would protect a husband from rape charges in all circumstances.
Similarly, in State v. Smith,93the Supreme Court of New Jersey criticized Hale's statement
when confronted with the defendant's argument that New Jersey's rape statute
incorporates the common law marital rape exemption. The court criticized Hale for citing
no authority for his extrajudicial proposition. Nonetheless, Hale's statement has
traditionally been accepted as the origin for the marital rape exemption.
However apart from the concept of implied consent there were two other theories that the
courts traced back to justify the marital rape exception .the first of this rested on the
origin of the offence of rape .As discussed above rape was seen as an offence against
property rather than a crime against the person.
Women were chattel, and men had a property interest in their wives and daughters’
sexuality.94Therefore the original purpose of rape statutes was to protect property rights
of men rather than the body and person of women.95 The second was the doctrine of

89
Ibid See, Elizabeth M. Makowski “The Conjugal Debt and Medieval Cannon Law” 3 J. Medieval.
Hist. 99(1977)
90
Id at 82.
91
315 S.E.2d 847 (1984).
92
Ibid
93
85 N.J. 193, 426 A.2d 38 (1981).
94
Supra note 76 at 83. See, Emily Brown ,”Changing the Marital Rape Exemption :I am
Chattel?!:Hear Me Roar” 18 AM.J Trial Advoc 657 (1995).
95
Lotika “Emancipation From Rape: Discovering The Self Of Women Beyond the Body” 3 The
Bangalore Law Journal 98 (2010).
 62

marital unity propagated by Blackstone. Blackstone was of the opinion that “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; and is therefore called in our law-French a feme-covert, feminaviro co-
operta; is said to be covert-baron, or under the protection and influence of her husband,
her baron, or lord; and her condition during marriage is called her coverture.”96 Marriage
merged the identity a woman’s identity into her husband’s, and the two were considered
as one this premise made it physically impossible to commit rape within marriage
because the man could not rape himself. This legal euphemism reinforced the notion of
women being man’s own (property).
Katherine O’Donnonvan states in the context of marital rape that: “Its immunity from the
purview of criminal law is explained on the grounds that the female victim is wife .This
justification can be understood in the context of the dominant family ideology and female
sexuality which treats wife as the property and as having no sexual agency or decision
making ability in sexual activity within the marital context”97
Another traditional justification behind emergence of this exemption can be traced back
to the biblical phrases which laid down that ‘any carnal knowledge outside marriage was
deemed unlawful, while any carnal knowledge within the marriage contract was
considered lawful’.
Such type of societal perceptions laid the foundation for the common law principle that
was cemented by the infamous statement of Sir Mathew Hale, which became the basis of
the marital rape exemption in law over centuries.

3.21. MARITAL RAPE AND THE COMPARATIVE ANALYSIS OF THE LAW IN

DIFFERENT COUNTRIES

96
Tan Cheng Han “Marital Rape – Removing the Husband Legal Immunity.”31 Malaya L. Rev. 112
(1989).
97
Subhash Chandra Singh “Marital Rape: A Feminist Critique” 3 SCJ 47 (2002)
 63

Let us compare the Law relating to Marital Rape in different countries of the world.
The countries that were early to criminalize marital rape are Czechoslovakia 98, and
99
Poland (which have a law dating back to procommunist days of 1932). In those
countries, husbands may be charged with marital rape. Marriage does not give a right to
force one’s wife to have sexual intercourse with him. In Sweden it has been possible to
prosecute a husband for marital rape since 1965, though the crime is considered less
grave in view of the spousal relationship. Rape by a stranger carries a prison term of no
less than two and not more than ten years. Husbands can be prosecuted only for
valdforande(sexual coercion or assault), which carries a maximum sentence of four years'
imprisonment. In Denmark, the Penal Code defines rape as sexual intercourse obtained
by force with any woman. Once again the penalties to which husbands-and others who
have had a sexual relationship of a lasting kind-are lighter.' The Norwegian law is similar
to the Danish law in this regard.

3.21.1. England
Sir Mathew Hale gave birth to common law’s ‘marital exemption’ in rape in 1736.100Ever
since then up till 1991 the marital rape immunity in England was given institutional
legitimacy. Research have shown that there were no circumstances in which the wife
could be held to have retracted her matrimonial consent to sexual intercourse It was for
the first time in the case of R v Clarke101 , that an exemption to the general common law
rule of marital exemption was first recognized. An allegation of rape made by wife
against husband as the forceful sexual intercourse occurred when there was a separation
order in force. The court held that in such a situation the wife was under no obligation to
cohabit with the husband. Bryne J. held that ‘‘in those circumstances consent of wife had
been revoked by an order of the court for non-cohabitation’’. However in 1954 in R

98
C. Z. CRIM. CODE Section 238 (1950)
99
POL. CODE Art. 204 (1932)
100
Ibid
101
(1949) 2 All ER 448
 64

v.Miller102 in a regressive decision by LynskeyJ., court granted the benefit of marital

exemption and held that the wife had not legally revoked her consent despite having
presented a divorce petition. In this case the act was held to be an assault and not
considered as ‘rape’. Later in Regv. Reid103the court observed that “the notion that a
husband can ,without incurring punishment treat wife whether she be a separated wife or
otherwise ,with any kind of hostile force is obsolete”.104
Similarly in R v. Roberts105the court of Appeals further expanded the definition of marital
rape and held that forceful sexual intercourse after order of separation would amount to
rape. However it was in the year 1991 in case of R v R106that the ‘marital rape exemption’
was finally completely abolished by the Appellate Committee of the House of Lords. The
court held thus: “Accepting that it is implied or presumed that a wife consents to sexual
intercourse when she marries her husband on agreement between the parties sufficient to
displace the marital exemption to law of rape may both be informal and implied from
conduct .Furthermore a wife may unilaterally withdraw implied consent to sexual
intercourse by withdrawal from cohabitation accompanied by a clear indication that the
consent to sexual intercourse has been terminated”
Again in R v. C,107the court held that there is no “ marital exemption” to the law of rape
and accordingly the husband may be convicted of rape of his wife in case of non
consensual sexual intercourse whether he is living together or apart from his wife.
Lord Keith of Kenkel held that “the fiction of implied consent has no useful purpose to
serve today in the law of rape and that the marital rights exemption was a common law
fiction which had never been a true rule of English law’’. Court further held that
‘‘marriage in modern times is regarded as partnership of equals. And Hales position
involves that by a marriage a wife gives her irrevocable consent to sexual intercourse
with her husband under all circumstances irrespective of her health……but a wife is not
obliged to obey her husband in all things nor to suffer excessive sexual demands on part

102
(1954) 2 QB 282
103
(1972) 2 ALL E.R.1350
104
Id. at 1353
105
(1986) Cri.LR.188
106
(1991) 2 All ER 747
107
(1991)1 ALL.E.R. 755.
 65

of her husband.’’ Lord lone CJ. held this common law fiction as ‘anachronistic and
offensive’.
In 1994, Sexual Offences Amendment Act was passed which by way of Section 147
abolished the ‘marital exemption’ in England.108
3.21.2. European Union
European Commission of Human Rights in C.R. v U.K.109endorsed the conclusion that a
rapist remains a rapist regardless of his relationship with the victim. It was acknowledged
that this change in the common law was in accordance with the fundamental objectives of
the Convention on Human Rights, the very essence of which is respect for human rights,
dignity and freedom.110
3.21.3. United States of America
For over 330 years Sir Mathew Hale’s statement alone served as a justification for a
spousal immunity involving rape charges, and was the origin for judicial recognition of
the marital rape exemption in the United States.It also served to maintain the position of
men in our society as dominators and women as their property.111 In Common wealth
v.Forgarty112 court following the Sir Hales preposition held that ‘a husband cannot be
convicted of raping his wife’. This was the first case where Hales preposition was first
time followed. And after this there is plethora of cases where this preposition was
followed in United States
The state of Michgan was the first states to have achieved rape law reforms with the
initiative and support of women activists. One of the most significant changes was the
redefinition of “rape” to criminal sexual conduct”.113
In Smith v State114, the court observed that ‘the principal of implied consent’ should be
abandoned. Forced sexual intercourse is a violation of the person’s bodily integrity
whether it is committed within or outside marriage’’. And in 1984 People vLiberta115
New York court held ‘marital exemption’ clause as unconstitutional and violative of the

108
Rakesh Singh, “Trauma of Marital rape: Husband turns Predator”, CrLJ104 (2006)
109
Government Of India, Committee on Amendments to Criminal Law, ‘‘Report on Amendments to
Criminal law” 114 (Minstry Of Home Affairs ,January23, 2013).
110
Id at p-116
111
Sallee Fry Waterman “For Better or Worse :Marital Rape” 15 N. Ky. L. Rev. 611( 1988).
112
74 Mass.(8Gray)489(1857).
113
Id. at 215.Also see Nena Bohra, “A Comparative Study Of Rape Law”, Lawyer’s Collective 1991
114
85 NJ 426A2d
115
64 NY 2 ed,474NE2d( 1984)
 66

equal protection clause guaranteed under the constitution. The court in this case could not
find a rational basis for distinguishing between marital rape and non-marital rape. Marital
rape is now illegal in almost all American states.
In the state of South Dakota, there is a classification of rape cases into two degrees. Rape
is of the first degree if the victim is not the defendant’s voluntary social companion on
the occasion of crime and has not previously permitted him sexual contract. Marriage or
previous sexual intercourse however reduces the offence to second degree. 116Hawaii also
classifies rape in a similar classification. Later on, state of Oregon in 1977 made ‘spousal
rape’ a new offence. Under this new offence a husband could be convicted for raping his
wife. State of Nebraska also enacted a law under which even live-in husband can be
convicted under the offence of rape.117
3.21.4. Canada
Marital rape was abolished in year 1983 after the introduction of the bill C-127 which
repealed the existing rape statute and marital rape was criminalized. In 2011, The
Canadian Supreme Court in R v. J.A.118, Chief Justice McLachlin emphasized that the
relationship between the accused and the complainant does not change the nature of
inquiry. The defendant cannot argue that the complainant’s consent was implied by the
relationship between the accused and the complainant.
3.21.5. New Zealand
The marital rape exemption was abolished in 1985 by the present Section128 of Crimes
Act, 1981. Subsection 4 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 sexual connection occurred.’119
3.21.6. South Africa
In 1993, South Africa criminalized marital rape, reversing the common law principle that
a husband could not be found guilty of raping his wife. The Prevention of Family
Violence Act, 1993, Section 5 provides that ‘‘ Not withstanding anything to the contrary
contained in any law or in the common law, a husband may be convicted of the rape of
his wife.’’In 2007 Criminal Law (Sexual Offences and Related Matters) Amendment Act

116
MVS Sankaran “Marital Status Exemption In Rape” 20 JILI 602(1978)
117
Id. at 604
118
[2011] 2 SCR 40
119
Id. at 104
 67

in ‘Sexual Offences Act’ was done which provides in Sec. 56 (1), that ‘a marital or other
relationship between the perpetrator or victim is not a valid defence against the crimes of
rape or sexual violation’.
3.21.7. Australia
In Australia, the common law ‘marital rape immunity’ was legislatively abolished in
1976.120 In 1991, R v.L121 Australian High Court through Mason CJ held that: ‘If it was
ever the common law that by marriage a wife gave irrevocable consent to sexual
intercourse by her husband, it is no longer the common law’.122
3.21.8. Nepal
The Supreme Court of Nepal has declared that marital sex without a wife’s consent
should be considered rape and be punishable by law. The Landmark decision resulted
from a petition filed in July 2001 by the Forum for Women, Law and Development, a
women’s right organization.123
3.21.9. Bhutan
Section 199 of the Penal Code of Bhutan declares marital rape to be an offence though
section 200 classifies it as a petty misdemeanour.124 Thus a person convicted of marital
rape can be sentenced to an imprisonment ranging from one month to one year.

3.22. ARGUMENTS AGAINST THE CRIMINALIZATION OF MARITAL RAPE

Those who argue against the criminalization of marital rape cite two kinds of reasons.
First set of reasons are historical in nature. They consist of historical justification given in
favour of marital rape exemption. Another set of reasons is modern reason. Let us have a
look on both these justifications one by one and at the same time. We will also side by
side have a look upon the criticism of these arguments.
3.22.1. Historical Arguments against the Criminalisation of Marital Rape
Historically, the acceptance and development of marital rape exemptions are rooted in
three theories: the theory of implied consent, the "unity" and "women as marital

120
Section 73(3)Criminal Law Consolidation Act ,1935
121
(1991) 174 CLR 379
122
Suptanote 56 at 115
123
http://panos.org.uk/features/marital-rape-outlawed-by-nepals-supreme-court/ (accessed on 3rd March,
2019)
124
http://www.judiciary.gov.bt/html/act/PENAL%20CODE.pdf, (accessed on onon3rd March, 2019)
 68

property" theories, and the "narrow constructionist" theory. Although the implied consent
theory was the initial rationale for the recognition of marital exemptions, the unity or
property and narrow constructionist theories provided additional justification for the
exemptions' widespread acceptance.
3.22.1.1. The "Implied Consent" Theory
The most frequently cited basis for marital rape exemptions, both legislatively and
judicially, is the common law doctrine of irrevocable implied consent. The theory of
implied consent originated with a seventeenth century statement by Sir Matthew Hale
that a "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 up herself in this
125
kind unto her husband, which she cannot retract."' A woman, upon entering marriage,
impliedly and irrevocably consents to sex on demand with her husband, at any time and
under any circumstances.
Modern critics suggest that even if implied consent theory was at some point of time
valid, that time has passed both socially and logically. Additionally, after the passage of
Hindu Marriage Act, 1955 Hindu marriage is no more only a sacrament rather both a
sacrament as well as contract. Muslim and Christian marriages were already considered
contract and thus Marriage and Divorce laws of India at present recognise that either
spouse can unilaterally withdraw from the marriage contract. This ensures that either
spouse can unilaterally withdraw consent to marital sex. If the victim truly has "revoked"
a term of the marriage contract by refusing sexual intercourse, the proper remedy for the
harmed spouse is in the matrimonial courts, not in violent or forceful self-help. Thus, this
theory is no longer relevant to justify the marital rape exemption.
3.22.1.2. The "Unity" and "Women as Marital Property" Theories
Blackstone best articulated the unity theory when he wrote that "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
her husband." 126Once the couple is married they become one. The unity theory stands for
the proposition that because the husband and wife are one, the husband is incapable of

125
http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1296&context=wmjowl,(accessed on
March 5, 2019)
126
Ibid
 69

raping his wife because he is incapable of raping himself. The unity doctrine is a basis for
the historical view of women as the property of marriage. Women are their husbands'
chattels to be "deprived of all civil identity." Early rape laws, which either explicitly
exempted wives from the laws' protection or were interpreted by their silence to include
the English common law exemption, reflect this notion of women as, property and were
intended initially only to protect the property interests of the woman's husband, if
married, or father, if single. Courts have largely rejected the unity and "women as marital
property" theories by invoking language from various judgments which asserts that
nowhere in the modern society, a woman is regarded as chattel or demeaned by denial of
a separate legal identity and the dignity associated with recognition as a whole human
being." Critics also challenge the unity theory on the basis that husbands can be charged
with committing other crimes against their wives. As far as India is concerned, in India
wife was never considered her husband’s property nor were the husband and wife
considered a single person. Thus this argument also fails in the Indian context.
3.22.1.3. The "Narrow Constructionist" Theory
English common law defined rape as the unlawful carnal knowledge of a woman against
her will. In the narrow constructionist theory, the term "unlawful," as it is used in rape
statutes, means "not authorized by law. Because marriage sanctions, or authorizes, sexual
relations between husband and wife, all carnal knowledge between husband and wife is
lawful, and there are no sexual relations within a marriage that are unauthorized or
unlawful. Thus, no sexual relations within a marriage fall within this definition of rape.
Supporters of this theory find it superior to Hale's theory of implied consent not only
because it is less likely to become outdated but also because it alleviates the need to feign
consent where there is none. Modern legislatures have dismissed this argument by
drafting statutes that no longer contain the "unlawful carnal knowledge" language. In
India, the Exception II of section 375 of the India Penal Code still contains this exception
and thus this exception is still narrowly constructed. But the critics argue that in our
country there is a Constitutional Law, which is superior to the normal legislations and the
normal legislations can be tested on the touchstone on the Constitution and they argue
that this exception is violative of Article 14 and Article 21 of the Constitution though the
same has not been declared by the Supreme Court or any High Court.
 70

3.22.2. Modern Arguments against the Criminalization of Marital Rape

Nowadays, support for marital rape exemptions is grounded in four rationales that are as
a group distinctly more modern, and thus more easily accepted, than their predecessors:
marital privacy, marital reconciliation, fear of false allegations and difficult proof
requirements, and the belief that rape within marriage is less severe than rape outside
marriage.
3.22.2.1. Marital Privacy
Marital privacy is one of the foremost modern day justifications for marital rape
exemptions. Proponents of the marital privacy rationale suggest that the right to privacy
within one's marriage is so fundamental that the public, and hence the legal system,
should be precluded from defining or judging the activities therein. Professor Hilf
analogizes marital privacy rights to "drawing a curtain" around the marriage so the
"public stays out" and the "spouses stay in." Keeping the public out, Hilf argues, prevents
voyeurism as well as the embarrassment of disclosing private lives.127
Courts in the United States have proposed numerous counterarguments to the marital
privacy theory. The New York court of appeals in People v. Liberta4 3 rejected the
marital privacy argument and stated clearly that the right recognized in Griswold v.
Connecticutt128applies only to consensual acts, not to violent sexual assaults. Nor is
marital privacy an absolute right. States must balance their interest in protecting marital
privacy against their interest in protecting individuals' bodily integrity. Some courts
maintain that the exemption itself interferes with the marital relationship because it gives
the husband legal control over his wife's bodily integrity that he otherwise would not
have.129 These judgments of the courts in the United States are relevant even in the Indian
context and they have strongly rebutted the arguments given by the proponents of the
marital privacy theory.
3.22.2.2. Marital Reconciliation
The marital reconciliation rationale for marital rape exemptions is an extension of the
"closed curtain" and marital privacy justifications. By keeping the spouses "in," and the
law and the public "out," spouses are supposedly forced to resolve their differences

127
Michael G. Hilf, Marital Privacy and Spousal Rape, 16 NEW ENG. L. REV. 31, 33 (1980)
128
381 U.S. 479 (1965)
129
People v De Stefano, 467 N.Y.S.2d 506, 517 (County Ct. 1983)
 71

independent of external interference. Reconciliation theorists maintain that this resolution

process, as opposed to one which allows "access to the criminal justice system for every
type of marital dispute, fosters greater mutual respect between the parties and eases their
ultimate reconciliation. Inherent in this theory is the idea that if a victim of spousal rape
is capable of bringing, and in fact does bring, criminal charges against her spouse, then
the law will have fostered marital discord and prevented reconciliation. Although some
foreign courts have accepted this reasoning, most of the courts throughout the world and
critics reject the reconciliation and marital harmony theory on the basis that little exists to
reconcile if the relationship has deteriorated to the level of forcible rape. Some courts and
commentators have also noted that the relationship and potential for reconciliation is
disrupted by the rape itself, not the rape charge.
3.22.2.3. Evidentiary Concerns and the Fear of Women Lying
Evidentiary concerns are perhaps the most common basis for the partial or limited marital
exemptions found in the rape laws of several countries. One primary objective of the
partial exemptions is to guard against false accusations made by deceitful or vindictive
women. Until recently, Lord Hale's infamous warning that rape "is an accusation easily to
be made and hard to be proved, and harder to be defended by the party accused, was used
as a cautionary jury instruction. To guard against falsely convicting an innocent man,
Wigmore advised that ‘no judge should ever let a sex offence go to the jury unless the
female complainant's social history and mental makeup have been examined and testified
by a qualified physician. The psychic complexes of women are multifarious, distorted
partly by inherent defects, partly by diseased derangements or abnormal instincts, partly
by bad social environment, partly by temporary physiological or emotional conditions.
One form taken by these complexes is that of contriving false charges of sexual offenses
by men.' Although these archaic procedural requirements no longer exist in the realm of
stranger or non-stranger rape, the prejudicial notions supporting them do remain when
victims are married to their assailants.
Opponents of this "fear based" justification offer three arguments. First, other crimes
exist that are equally difficult to prove yet they are not decriminalized. The best example
of the same can be section 377 of the Indian Penal Code. Our society instead relies on a
criminal justice system that is sufficiently sophisticated to ensure that innocent
 72

individuals are not frivolously prosecuted or wrongly convicted. Next is the

jurisprudential view that convictions are not the sole reason for enacting laws. In addition
to convicting criminals, laws serve as deterrents and educational tools, announcing to
society what is morally right and morally wrong, what is socially acceptable behaviour
and what is not. Finally, rape is recognized as a vastly underreported crime. Reasons
offered for this phenomenon include the social stigma attached to victims of rape, fear of
retaliation and reluctance to endure the double victimization of the judicial system.
Fabrications of rape charges are unlikely not only for the reasons stated above, but also
because "rape prosecutions are often more shameful for the victim than the defendant."
Kavita Krishnan, President of All India progressive Women’s Association, in a panel
discussion conducted on Lok Sabha channel, stated that some of the persons who support
the marital rape exemption because of the fear that the law may be used by some women
have been affected by the stereotype that women are more prone to lying.130 There are
several other laws, which can be misused but nobody shows a fear that they might be
misused. Recently when there were public protests with the demands of a Strong Lokpal
in India, nobody except the Politicians or bureaucrats expressed a fear that the same will
be misused. A lot of hue and cry is being made about the extensive misuse of section
498A of the Indian Penal Code but no one was able to prove the extent of its misuse by
an empirical study before the Law Commission of India.131 No doubt section 498A is
being misused but the extent of the misuse is being blown out of proportion by those who
do not want that the law should interfere and change the social hierarchy of the society,
which has been settled for several centuries and others are misled by them and join the
chorus. Prof.UpendraBakshi has rightly pointed out that one of the biggest problems of
the Indian society is that patriarchy is not considered to be a problem rather it is
considered to be natural. In a deeply patriarchal Indian society, whenever laws are made
in favour to strengthen the position of women, eyebrows are raised. Even use is termed to
be misuse as in the eyes of the society use of the law against husband is not something
which they are accustomed to and women are supposed to tolerate all the atrocities of the
husband in silence. Her raising her voice against the same is also termed misuse of law.

130
https://www.youtube.com/watch?v=ibTz9mSnUf4 (accessed on 4th March, 2019 )
131
Law Commission of India, 243rd Report p-40
 73

But that does not mean that women cannot file any false case against her husband but the
probability of the same is either at most equal to that of any man filing a false against any
other man or that of a common man filing a false corruption case against a Politician or
an officer. Moreover there are provisions in the Indian Penal Code itself which are able to
tackle the problem of misuse.
Section 211 of the Indian Penal Code prescribes punishment for any person, who makes a
false charge of offence with the intent to cause any injury knowing that there is no lawful
justification for such charge. This provision of law should be used by Prosecution
agencies and the courts in appropriate cases132but as a matter of caution a provision
similar to section 198B of the Criminal Procedure Code should be inserted for marital
rape cases and the cognizance of the court should be barred except upon a prima facie
satisfaction of the facts which constitute the offence upon a complaint having been filed
or made by the husband against the wife. Moreover arrest should be made only in
accordance with section 41 of the Criminal Procedure Code as amended by Criminal Law
Amendment Act, 2013.
3.22.2.4. Marital Rape is Less Harmful than Non-Marital Rape
There is a perception that rape by, a known individual, particularly an individual with
whom the victim has had past voluntary sexual intercourse, is less severe than rape by an
unknown individual. This perception supports both broad marital rape exemptions and
the treatment of marital rape as a lesser sexual offense. Contrary to this "less harmful
than" theory, victims of spousal rape suffer greater harm than victims of stranger rape.
Data demonstrates that rape in marriage is actually more emotionally traumatic than any
other kind of rape and carries with it longer lasting emotional effects. Victims of marital
rape also tend to suffer greater physical harm than victims of non-marital rape and are in
fact often victims of the most brutal and life-threatening rapes. Critics of the "less
harmful than" theory also argue that the very existence of rape laws indicates a
recognition that harm caused by rape, any rape, is more severe than harm caused by
assault and should be treated as such. In the words of Dr. David Finkelhor, "rape is

132
Kusum, ‘Harassed Husbands”, Regency Publications New Delhi (1993)
 74

traumatic not because it is with someone you don't know, but because it is with someone
you don't want." 133

3.23. ARGUMENTS IN FAVOUR OF CRIMINALIZATION OF MARITAL RAPE

The persons who support the criminalization of marital rape not only ably rebut the
arguments put forward by the supporters of marital rape exemption but they also have
their own arguments against the marital rape exemption. Let us have a look at the
arguments in favour of the criminalization of marital rape.
(i) The Universal Declaration of Human Rights, the International Covenant on
Civil and Political Rights emphasised on the equal rights of men and women
during marriage. The marital rape exemption denies the same to women.
Moreover it is also in violation of the commitment of India under the
Convention on Elimination of All forms of Discrimination against woman.
Declaration on Elimination of Violence against women has declared marital
rape as a violation of human right and India by continuing the marital rape
exception is violating the human rights of women.
(ii) It has been argued that Exception II to section 375 of the Indian Penal Code is
violative of Article 14 of the Indian Constitution as the classification between
the woman who are raped by husband and raped by strangers does not pass the
test of reasonable classification laid down by the Indian Supreme Court.
(iii) The marital rape exemption clause has also been argued to be violative of
right to bodily self determination, right to privacy and right to good health, all
of which form the core of the right to life guaranteed under Article 21 of the
Indian Constitution. Most important of all, this exception clause is violative of
right to live with human dignity, which is part and parcel of the right to life
under Article 21.
(iv) Marital Rape exemption has been argued to be gross double standards of law
with regard to rape. John Stuart Mill, Bertrand Russel and Lucy Stone have
articulated their views criticising the same.
(v) This exemption has been framed on the archaic notions of marriage, where
wife was considered the property of the husband, which is no longer relevant
in the modern context. It has been well settled now that marriage is a
partnership of equals. It was primarily on this ground that Justice J.S. Verma
Committee recommended the deletion of marital rape exemption.
(vi) The argument that the criminalization of marital rape has potential to destroy
the marriage is baseless. It is the act of marital rape, which has the potential to
destroy marriage not its criminalization. The removal of the marital rape
exemption will instead educate men to respect the right to bodily autonomy of
their wives and prevent them from considering marriage as a license to rape.
(vii) The implied consent theory given by Justice Hale has been rejected by the
courts in most of the countries of the world and it is even more difficult to

133
Linda Jackson, Marital Rape: A Higher Standard Is in Order, 1 Wm. & Mary J. Women & L. 183
(1994), http://scholarship.law.wm.edu/wmjowl/vol1/iss1/8 (accessed on March 4,2019)
 75

accept this theory in Indian context as in India even at present a large number
of marriages are arranged by the parents of the bride and she has little say in
the same. Even if she gives her free consent at the time of marriage, that
consent cannot be taken to be forever.
(viii) Argument given by Parliamentarians that the issue of marital rape can be
tackled through counselling has been rejected by experts, who argue that in
several cases husbands do not believe that they have committed any wrong by
raping their wives. It is submitted that the removal of the marital exemption
coupled with educational reforms may educate such husbands to respect the
dignity of their wives.
(ix) The argument that in India, due to social and cultural reasons, marital rape
cannot be made crime is far from truth. There were several other social
customs, like Sati Pratha, ban on widow remarriage, dowry system, child
marriage, etc, which were outlawed by the Parliament despite being deeply
engrained in the Indian society. Marital rape has no such historical or cultural
sanction and thus can easily be criminalized by crime. The fact that in India
marriage is considered to be a sacrament should enhance the responsibility on
the husband to respect the wishes of her wife.
(x) The argument that criminalising marital rape will violate the right to marital
privacy has been ably rebutted by the courts in the United States as they have
taken a consistent view that right to marital privacy is not an absolute right
and they are available only for consensual acts and not for violent acts. There
is no logic to believe why the same view should not hold true even in the
Indian context.
(xi) The argument given by the supporters of marital rape exemption that it
provides a scope for marital reconciliation has also not been accepted by those
who favour criminalisation of marital rape on the basis that little exists to
reconcile if the relationship has deteriorated to the level of forcible rape. Some
of them have also noted that the relationship and potential for reconciliation is
disrupted by the rape itself, not the rape charge.
(xii) The argument that since marital rape is difficult to prove, it should not be
made a crime has no weight as there are several other offences which are as
difficult or even more difficult to prove but they have still found a place in the
statute book.
(xiii) The argument that women will misuse this law and make false allegations of
marital rape appears to be based on the stereotype that women are more prone
to lying, which has no scientific backing. Any law has the potential to be
misused and that’s why our criminal justice system requires a charge to be
proved beyond reasonable doubt. Moreover there are provision within the
Indian Penal Code (section 211), which can be used to punish the person who
puts false charges against another with the intent to cause injury to him and
thus this provision can be used to deter persons from filing false cases.
(xiv) The argument that rape by a partner is less harmful than rape by a stranger has
been found to be incorrect by the research conducted worldwide. The
researchers instead found that rape in marriage is actually more emotionally
 76

traumatic than any other kind of rape and carries with it longer lasting
emotional effects.

3.24. MARITAL RAPE AND THE REALITY OF THE INDIAN SOCIETY

Some persons argue that marital rape might be a problem in western countries but in
India this problem is non-existent. Several researches have found such claims to be
incorrect. 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 Equality Survey revealed that one in five has forced their
wives or partner to have sex.134
National Family Health Survey has a conducted a survey on Domestic Violence and in
that survey, they also focused on the issue of sexual violence inside homes. Ten percent
of currently married or widowed women, 1 percent of never married women, and 2
percent of women whose gauna has not yet been performed report have experienced
sexual violence. However, compared not only with women in other marital statuses, but
also with all other subgroups in the table, it is divorced, separated, or deserted women
135
have the highest prevalence of sexual violence (25 percent). Five percent of women
aged 15-19 report having experienced sexual violence, the lowest rate among all the age
groups. Ten percent of rural women have experienced sexual violence, compared with 6
percent of urban women.
The prevalence of sexual violence declines sharply with education from 12 percent
among women with no education to less than 5 percent of women with at least 10 years
of education. As in the case of physical violence, women who were employed (either for
cash or not for cash) during the 12 months preceding the survey have a somewhat higher
prevalence of sexual violence (10 percent) than women not employed (7 percent).
According to religion, Buddhist/Neo-Buddhist and Jain women have the lowest
prevalence of sexual violence (3 and 4 percent) and Muslim women the highest (11

134
International Centre for Research on Women, International Men and Gender Equality Survey,
2011, p-46, available at:http://www.icrw.org/publications/evolving-men, accessed on 2nd March, 2019
135
http://hetv.org/india/nfhs/nfhs3/NFHS-3-Chapter-15-Domestic-Violence.pdf, (accessed on 8th March,
2019)
 77

percent), followed by Hindu women (8 percent). Prevalence of sexual violence is

somewhat higher for the scheduled castes (11 percent) and scheduled tribes (10 percent)
than for women not belonging to the scheduled castes and tribes (7-9 percent). As with
physical violence, prevalence is highest among women in the poorest wealth quintile (13
percent) and declines steadily with increasing wealth to a low of 4 percent among women
in the highest quintile. Never married women who have experienced sexual violence have
most often been abused by a relative (27 percent), a friend/acquaintance (23 percent), a
boyfriend (19 percent), a stranger (16 percent), and a family friend (8 percent). Among
women for whom the age at first sexual abuse is known, 371 were younger than 15 years
when they were first abused. Almost half (47 percent) of this small number of women,
say that their current husband was the perpetrator of the violence and 8 percent say that it
was a former husband. Among women who first experienced sexual violence before age
15, significant proportions say that the violence was perpetrated by a relative (19 percent)
or by a friend or acquaintance (10 percent). Among women who first experienced sexual
violence after age 15, husbands are by far the most common perpetrators of sexual
violence.
Spousal violence refers to violence perpetrated by partners in a marital union. Since
spousal or intimate partner violence is the most common form of domestic violence for
womenage 15-49, the National Family Health Survey collected detailed information on
the different types of violence—physical, sexual, and emotional—experienced by women
at the hands of their current or mostrecent husbands. Focusing on the most current/recent
spouse permits a better understanding ofcurrent risk of spousal violence.
In this violence, ever-married women were asked about seven sets of acts of physical
violenceby their current or most recent husband, two of sexual violence, and three of
emotional violence.Although specific acts are labelled here as constituting physical,
sexual, or emotional violence forpurposes of discussion, there is no implication that an
act of physical violence will not entailemotional violence or that an act of sexual violence
does not entail physical violence.
According to Yugantar Education Society Survey on domestic violence, one-tenth of
1250 respondent ts from all states together reported sexual abuse by their husbands. The
extent of sexual abuse was more in urban areas as compared with rural areas. Similarly,
 78

the cases of sexual abuse as reported by respondents were more from upper class, higher
middle class and middle class families as compared to lower class and below poverty line
families. State wise reports disclosed that highest number of victims of sexual abuse was
from Madhya Pradesh (about 16 per cent) followed by Maharashtra (about 14 per cent)
and Gujarat (about 12 per cent). Only 3 per cent respondents from Chhattisgarh and 6 per
cent from Andhra Pradesh reported sexual abuse by their husbands.136
Thus both these surveys show the extent of sexual violence in India, which includes
marital rape. But the question which arises is whether the marital rape or sexual violence
inside homes will come to an end or drastically reduce if the exception 2 of section 375
of the Indian Penal Code is deleted.
Keeping the reality of the Indian society in mind, some experts argue that even if the
marital rape exemption clause is deleted, women will not walk out of the abuse marriages
and file criminal charges against their husbands. It is not the exemption clause rather
dependency of the women on her husband and the fear of retribution by the husband,
which forces the Indian women to remain with abusive husbands.137 In most of the other
countries also, despite deletion of the exemption clause, very few women show the
courage to file criminal cases against their husbands.

********

136
http://planningcommission.gov.in/reports/sereport/ser/stdy_demvio.pdf, (accessed on 8th March,
2019)
137
Flavia Agnes, ‘Marital Rape- Why both sides have got it wrong”, Times of India, 17 th may, 2015
 79

IV

STATUTORY RAPE AND THE LAW IN INDIA

4.7. Overview
The term statutory rape generally refers to sexual intercourse by an adult with a person
below a statutorily designated age known as the ‘age of consent’. More particularly, it
refers to sexual intercourse between an adult and a sexually mature minor past the age
of puberty. Sexual relations with a prepubescent child, generically called child sexual
abuse or molestation, are typically treated as more serious crimes.
Although statutory rape usually refers to adults engaging in sexual relations
with minors under the age of consent,it is a generic term, and very few legislatures use
the actual term in the language of statutes. As contrasted from other forms of rapes, in
statutory rape, overt force or threat is usually not present. Statutory rape laws
presume coercion, because a minor or mentally handicapped adult is legally incapable of
giving consent to the act. Thus, a person may be convicted of statutory rape even if the
perceived victim gave his/her consent, did not resist and/or mutually participated in the
act. Furthermore, it is also not a defence that the alleged perpetrator was genuinely
mistaken as to the minor’s age.
Be that as it may, the predominant purpose of making such activity punishable is to
prevent heinous cases of an adult taking sexual advantage of a minor. Thus, many
jurisdictions prohibit allowing a juvenile to be tried as an adult under this law while some
jurisdictions specify a minimum difference in age in order for the offence to be
applicable. Under such terms, if the adult is, for instance, less than three years older than
the minor, no offence has been committed or the penalty is far less severe. These are
called “Romeo and Juliet” clauses.
Laws tend to vary in their definitions of statutory rape especially with respect to the range
of proscribed sexual activities, gender of perpetrators as also the age of consent.
While many jurisdictions criminalise only actual sexual intercourse between an adult and
an underage individual, others tend to prohibit a wide range of sexual activities that may
or may not involve penetration.
 80

Similarly, while certain States restrict the category of potential perpetrators to adult
males, others make room for the prosecution of adult females as well. Furthermore, while
majority of the nations aim at prohibiting sexual relationships between adults and minors
in which either party is of the opposite sex, there are certain nations that permit the
prosecution of adults engaging in sexual activities with a person of the same sex but
below the age legally required to consent to the behaviour.
As regards the age of consent, in many jurisdictions the age of consent is interpreted to
mean mental or functional age. As a result, victims can be of any chronological age if
their mental age makes them unable to consent to a sexual act. Depending upon the
policy preferences of various nations, the age of consent currently varies from 13 to 18
years. In some jurisdictions where the age of consent has been fixed at too low an age,
the statutory rape laws may appear to overlap with the provisions under the special laws
criminalising child sexual abuse.

4.8. THEORETICAL FOUNDATIONS OF STATUTORY RAPE LAWS

The theoretical foundations of the laws relating to statutory rape are diverse. Most
common among them include the assumption that until a person reaches a certain age,
that individual is incapable of consenting to sexual intercourse. He is considered
deserving of special protection because he is especially vulnerable given his young age.
Critics, however, argue that an age limit cannot be used as a basis to determine the ability
to consent to sex, since a young teenager might possess enough social sense to make
informed and mature decisions about sex, while some legal adults might never develop
the ability to make mature choices about sex, as many mentally healthy individuals
remain naive and easily manipulated throughout their lives.
Another argument advanced in favour of such a law is the one pertaining to adult
hegemony. Minors are generally economically, socially and legally unequal to adults. By
making it punishable for adults to engage in sexual liaisons with a minor, statutory rape
laws aim to give the minor some form of protection against adults in a position of power
over the youth.
A further rationale for statutory rape laws is ease of prosecution. On this basis, the rule is
usually found in the form of a legal presumption and embodies a generally correct
empirical basis in respect of the age specified in the rule. These laws relieve the
 81

prosecution of the burden to prove lack of consent. One justification for using
presumptions is that they are time-saving devices in the law of evidence.Presumptions
embody generally accepted facts that do not require proof in the absence of evidence to
the contrary.

4.9. POSITION OF INDIAN LAW WITH RESPECT TO THIS ISSUE

In India, till 2012, the age of consent was 16 and any sexual intercourse with a girl below
16 years of age was a crime irrespective of the fact whether she has consented to it or not.
A fiction of law existed that all girls below the age of 16 are not capable of giving
consent to sex. In 2012, Protection of Children from Sexual Offences Act, 2012 was
passed, whereby the Parliament earmarked eighteen as the age of consent for the
purposes of sexual offences, thereby achieving the result of criminalising all sexual
activity whether consensual or non-consensual where one person is below the age of
eighteen. Criminal Law Amendment Act, 2013 amended other Criminal Laws and
increased the age of consent to eighteen even under section 375 of the Indian Penal Code.
The common law principle laid down in the case of R v Prince is still applicable in India
and the bonafide mistake of fact as to the age of the person is no defence. Ignorance of
law is also no defence and a person cannot take the plea that he was not aware of the
increase in the age of consent.
The consequence of the increase in the age of consent can be understood by the following
example. Imagine a situation where an 18-year-old boy and a 17-year-old girl "make out"
with mutual consent, and such making out involves touching of genitals/breasts. If
prosecuted, the boy would be guilty of sexual assault. Worse still, he will be punished
under Section 376(2) (h), which considers sexual assault of a person under 18 to be an
aggravated act, and provides a minimum punishment of ten years. Since the Protection of
Children from Sexual Offences Act is gender neutral, if the boy were also under 18, both
of them can be prosecuted, though under the Juvenile Justice Act.138
This is not only an imaginary example and many such cases have been filed before the
courts in India. It has been pointed out by researchers again and again that statutory rape

138
Mrinal Satish, ‘Criminalising Romance’, Indian Express, February12, 2013
 82

cases under the Indian Penal Code are generally filed against young couples who have
eloped. It is often used as a tool to control the sexual autonomy and marital choices of
young women. There are several instances where the parents file cases of rape against the
boys with whom their teenage daughters have eloped. Anyone who has even cursorily
examined lower court judgments cannot fail to notice the sizeable number of cases
termed “statutory rape” or “technical rape”. These are cases where the girl elopes with
her boyfriend and her parents file a case of rape to exert pressure on her to return, only to
get her married to a boy of their choice against her wishes. This tactic could be used only
if the girl was around 16 years of age, but now it can be used even in cases where the girl
is below 18 years of age. And in a dispute over age between the parents and the child, the
law tends to lean in favour of the parents.
A discussion on “elopement” marriages brings to the fore the ways in which multiple
social subordinations – caste, region, religion – intersect with patriarchy to contain the
sexual choices of defiant young women within established social mores. The situation
becomes precarious when an upper-caste girl elopes with a lower-caste boy, or when a
Hindu girl falls in love with a Muslim boy, transgressing the boundaries of Hindu upper-
caste dictates on “purity”. In a strictly stratified society, ridden with prejudices against
the lower castes and minorities, a young couple that dares to cross boundaries is severely
punished.
At times, the price for choosing a partner is public humiliation or gruesome murder. The
notion of women as the sexual property of their communities is so deeply ingrained that
despite being aware that it is a case of voluntary elopement, the police collude with the
fathers to protect patriarchal interests and community honour. Only if a girl is able to
provide clear and unequivocal proof of her majority is she allowed to accompany her
husband and cohabit with him. Or else the father’s word regarding her age will be
accepted and she will be sent back to his custody, and criminal charges will be pressed
against the boy. In rare cases where girls vehemently refuse to return to the custody of
their fathers, they are sent to state-run shelter homes. These girls are not automatically
released on attaining majority. The husbands concerned would have to initiate legal
proceedings for their release.
 83

Hence the legal provision has become a weapon to control the expression of sexuality,
and curb voluntary marriages, and is used to augment patriarchal parental power. Even
though the criminal provisions of statutory rape appear to be protecting the minor girl,
these provisions are concerned primarily with securing the rights of the parent or
guardian over the minor girl against her lover or her husband. A young couple who
exercises the choice gets trapped in family feuds, or caste and community hostilities.
There are no exceptions in the laws on abduction and kidnapping that allow a minor to
opt out of guardianship or to leave her parental home on any grounds. The use (and
abuse) of police power at the instance of parents in marriages of choice is in direct
opposition to women’s autonomy, agency and free will.

4.10. JUDICIAL RESPONSES

Several judges have commented that many of the habeas corpus petitions filed for
production of a girl in court are really cases to do with elopement. This is a serious
concern for the courts as the judgments discussed below indicate.
In Kokkula Suresh v. State of Andhra Pradesh139,the Andhra Pradesh HighCourt
affirmed that the marriage of a minor girl is not a nullity. The courtfurther held that the
husband is thenatural guardian of a married minor’sperson and property and he is
entitledto her custody, thus restraining thefather from claiming legal custody ofhis
daughter.
In Ashok Kumar v State,the Punjab and Haryana High Court commented that couples
marrying out of love are chased by the police and relatives, accompanied by
musclemen.140 Often cases of rape and abduction are registered against the boy. At times,
the couple faces the threat of being killed and such killings are termed “honour killings”.
Often the state is a mute spectator.
In Payal Sharma alias Kamla Sharma v Superintendent, NariNiketan, Agra,the
Allahabad High Court rejected thefather’s contention that the girl was aminor and instead
accepted her contentionthat she was a major.141 Further,the court declared that as a major
shehad a right to go anywhere and livewith anyone. “In our opinion a man anda woman,
even without getting marriedcan live together, if they wish. Thiscan be regarded as

139
I (2009) DMC 646 AP
140
I (2009) DMC 120 P&H
141
AIR 2001 All 254
 84

immoral by societybut it is not illegal. There is a differencebetween law and morality”,

the courtcommented. Since the girl had stated that her life was in danger, the court also
ordered police protection to ensure her security.
In JitenBouriv State of West Bengal, the Calcutta High Court, while permitting a minor
girl to join her husband, declared as follows,142
“Although the girl has not attained majority yet she has reached age of discretion to
understand her own welfare which is a paramount consideration for grant of her custody.
She may not have attained marriageable age as per the provisions of the Hindu Marriage
Act but marriage in contravention of age can neither be void nor voidable…The girl has
insisted that she wants to join her husband and does not wish to return to her father’s
place.”
In Vivek Kumar @ Sanju and Anjali @ Afsanav The State,a case concerningthe
elopement of a Muslim girl witha Hindu boy, the Delhi High Courtcommented,143
“There is no law which prohibits a girl under 18 years from falling in love...Neither
falling in love with somebody is an offence under IPC or any other penal law. Desiring to
marry her love is also not an offence....However, this (to wait to marry till she is a major)
is possible only when the house of her parents where she is living has congenial
atmosphere and she is allowed to live in peace in that house and wait for attaining age of
majority…When the daughter confided in her father that she was in love and wanted to
marry her lover, the response of the father created a fear in the mind of the girl. Her
father slapped her and told her that her action would malign the family and bring danger
to the religion. He even threatened to kill her or marry her off to some rich person. When
once such a threat is given to a girl around 17 years of age, who is in love, she has a right
to protect her person and feelings against such onslaught, even if the onslaught is from
her own parents. Right to life and liberty as guaranteed by the Constitution is equally
available to minors. A father has no right to forcibly marry off his daughter, against her
wishes. Neither does he have the right to kill her, because she intends to marry out of her
religion. If a girl around 17 years of age runs away from her parents’ house to save

142
II (2003) DMC 774
143
Crl M C No 3073-74/2006, decided on 23 February 2007
 85

herself from the onslaught of her father and joins her lover, it is no offence either on the
part of the girl or on the part of the boy with whom she ran away to get married.”
These judgments serve as a benchmark for the liberal interpretation of the constitutional
provisions of equality and individual freedom. At times, our judges, with a concern for
social justice, have resolved the issue by resorting to the basic principles of human rights,
and saved minor girls from the wrath of their parents and from state-run “protective
homes”. The only way they could do so was by holding these marriages to be valid and
by allowing the girls to cohabit with their partners of choice.
More recently, some amount of concern and sympathy for these consenting couples has
also been expressed at the end of judges. Ruling on Seema and Sameer’s case in October
2013, Additional Sessions Judge Dharmesh Sharma said, “The instant case racks up a
perennial problem being faced by all of us on the judicial side: what should be the
judicial response to elopement cases like the instant one... This life drama is enacted,
played and repeated everyday in the Police Stations and Courts...” Of the case before
him, Judge Sharma noted, “This case is a teenage love drama where our dysfunctional
cruel society and the justice system have separated the two love birds and have taught
them a bitter lesson.”

4.11. CONSEQUENCES OF INCREASE IN THE AGE OF CONSENT FROM 16 TO

18 YEARS
The first major issue with the Act is that it grossly ignores the social realities of the
Indian society. With rapidly changing contemporary attitudes in urban India, social
sensibilities have seen a paradigm shift in adolescent sexual curiosities leading to
increased experimentation. A detailed report by the Indian Institute of Population Studies
states that among those people who reported pre-marital romantic partnership, 42 percent
of men and 26 percent of women admitted to engaging in sex with their partners with a
sizeable number being under the age of 18. Therefore criminalising sex between
adolescents in a society where it is quite prevalent would lead to making thousands of
men susceptible to rape cases wherever the issue of lack of consent comes up. Such
instances were seen in the United States where the age of consent was increased to 18 in
certain states. It was noted that almost 41% of the total rape cases were false. It must also
be stressed that 16 to 18 are the ages when adolescents undergo many hormonal changes,
 86

so any case where there is a fallout between a couple and the girl accuses her partner of
rape, the minor boy would be left with no legal recourse at all. It is these crucial issues
which our lawmakers have overlooked. They have sought to criminalise a phenomenon
which could be very aptly described as being an essential part of ‘growing up’. Thus in
outlawing such an act, the legislators who seek to occupy a “conservative higher moral
ground” actually encourage moral policing which could further lead to harassment of the
youth.
The logic which has driven the particular provision seems to be that such legislation
could possibly deter young people from engaging in sexual activity. A close perusal of
the ground situation would however indicate otherwise. With limited regard to
legislations and more exposure of cable television and Internet, youngsters are becoming
more aware of their sexuality and they do not hesitate in indulging in sexual relationships
before the age of 18. By falling prey to moral prejudices the lawmakers of this country
have failed to acknowledge the fact that sexual exploration and activity start in a child’s
life much before entering into a marital relationship. Thus, this inconsistency between the
legal provisions and societal configuration leads to lackadaisical implementation of the
law. The legislators ought to realise that moral values cannot be engrossed through legal
provisions. In fact in Sandeep Paswan’s case the court had observed that, “Good virtues
cannot be inculcated and good conscience cannot be imbibed in a child by legal
provisions. It would be better and wiser to leave this job to parents and school teachers.
Children need to be imparted sex education in the schools." This observation echoes the
concerns of many, who believe that this provision would not only lack conformity with
social realities but could also become detrimental to the youth rather than being of any
assistance to them.
Besides, in a majority of statutory rape cases that reached high courts and the Supreme
Court in the last 25 years, courts sentenced young men convicted of statutory rape to
terms below the minimum sentence. Courts have clearly signalled that criminalising even
penetrative acts between young couples of the same age deserves to be treated differently
than cases involving sexual predators. Unfortunately, the cabinet does not seem to have
got the message. The result is that paedophiles and young lovers are in the same boat.
 87

In the aftermath of the Nirbhaya gang rape incident of December 16, 2012, The Hindu
conducted a six-month investigation starting from January, 2013, whereby it analysed all
cases involving sexual assault that came before Delhi’s six district courts in 2013 – nearly
600 of them in all. The Hindu also interviewed judges who hear rape cases, public
prosecutors who argue them, police officers who work on the cases, complainants,
accused and their families, and women’s rights activists and lawyers and what emerged
was a complex picture of the nature of sexual assault in the capital, a city that has come
to be known as India’s “rape capital”. Among the key findings was that a third of all the
cases heard during one year dealt with consenting couples whose parents had accused the
boy of rape.
Of the 460 cases that were fully argued before the courts, the largest category (189 cases)
dealt with cases involving or allegedly involving consenting couples. The majority of
these - 174 of these 189 cases - involved couples who seemed to have eloped, after which
parents, usually of the girl, filed complaints of abduction and rape with the police. In two-
thirds (107) of these cases, the woman “complainant” deposed consistently before the
police, doctors, magistrate, district judge and under cross-examination that she had
eloped and had sexual relations - and in most cases got married and sometimes had
children - with the accused because she was in love with him.
In case after case among these 107, girls deposed about the suffering they faced at the
hands of their parents - beatings, confinement, threats, being forced to undergo medical
examinations, being forced to undergo abortions, even as they plead before the court they
be allowed to stay with their husbands. A large number involved inter-caste and inter-
religious couples.
The reason these cases came before the courts was because the girls in most of these
cases were between the ages of 15 and 18, and the court was called upon to decide if they
were minors. In ten of these cases, the court agreed that the relationship was consensual
and that the couple got ‘married’ but convicted the boy anyway as the girl was a minor.
In most of the remaining 67 cases involving alleged elopement, the girl deposed in at
least one instance - either in the initial FIR, or during her medical examination, or in her
statement to the magistrate - that she was in love with the accused and went away with
 88

him of her own will. However, in court she supported her parents’ and prosecution’s
case.
Such changes in testimony in addition to incriminating evidence including photos of the
wedding, letters exchanged and no reports of any alarm raised by the girl during train
journeys or in hotels during the alleged elopement made convictions rare in these cases as
well.
As regards the pre-trial phase, The Hindu found that police stations followed an informal
script to record sexual assault cases. In cases of alleged elopement, the complainant was
almost always named as being 14 years old in the FIR. This automatically made her
partner liable to be accused of abduction and rape and any marriage ruled invalid,
Moreover, poorly educated parents were often unaware of the exact age of their
daughters, one officer added.
To make the case sound as if the girl was abducted and did not go with the boy with her
consent, an element of intoxication is added to the FIR, usually a “cold drink laced with a
sedative”.
The problem with these “scripted FIRs” is that none of this stands in court. In almost all
of the 174 cases of elopement, the complainant was ruled to not be a minor by the court;
only 10 cases resulted in statutory rape convictions. Further on not one of 583 cases
examined by The Hindu was the police able to produce any proof of intoxication.
As a result of the sheer number of such cases, in off-the-record conversation with The
Hindu at the least, both cops and judges said they tended to be sceptical of cases in which
the complainant and the accused are romantically involved.
The Hindu’s investigation of district court judgements on sexual assault indicates that a
great distance is travelled between the FIR and the court judgement and at both ends of
the process, risks are building. At the first instance, relying on FIRs for data on sexual
assault or a framework for sexual assault in India may be unreliable. Moreover, media
articles relating to a number of the cases looked at by The Hindu indicated that the media
reports the FIR nearly verbatim without contacting the accused, and rarely follows up
except in high-profile cases.
Accounts gathered from complainants, lawyers and judges reveal that the protestations of
women that they had consented to the act or eloped with the accused are disregarded so
 89

that provisions relating to statutory rape and abduction can be invoked to appease angry
parents. Conviction is indeed inevitable if the girls involved are below the statutory age
of consent. While some sympathetic judges used to exercise their discretion to hand down
mild sentences, the much-strengthened penal law applicable since last year has made
longer prison terms inevitable for statutory rape. This places a question mark on the
wisdom of recent legislation raising the age of consent from 16 to 18, thereby
criminalising teenage sexual activity. There is no balancing provision to distinguish
sexual abuse of a minor, which ought to be dealt with sternly, from consensual sex
between couples of a proximate age group.
4.12. COMPARATIVE POSITION OF INDIAN LAW WITH RESPECT TO OTHER
COUNTRIES
The problem which is being faced in India is not unique and several other countries has
faced such problems in the past and many of them have found some solutions to tackle
with them. Some of the countries have brought amendments in their law so as to insulate
young persons, who engage in teenage sex from being punished as criminal. Thus, having
a look at the position of law in other countries will enlighten us and help us in finding
solutions of similar problem in our country.

4.12.1. The United Kingdom

The legal framework of the Sexual Offences Act 2003 differentiates between sexual
contact with children under 13, and sexual contact with those at least 13 but under 16.144
Sexual penetration of a child under 13 is termed Rape of a child under 13, an offence
created by section 5 (1) of the Act, which reads:
 Rape of a child under 13
A person commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of
another person with his penis, and
(b) the other person is under 13.

144
Sexual Offences Act 2003, http://www.legislation.gov.uk/ukpga/2003/42/contents (last visited March
7, 2019)
 90

The Explanatory Notes read: “Whether or not the child consented to this act is
irrelevant”.145 The term ‘rape’ therefore is used only with regard to children under 13 -
consensual sexual penetration of a child above 13 but under 16 is defined as ‘Sexual
activity with a child’, and punished less severely (section 9, which requires the
perpetrator to be 18 or over). A minor can also be guilty for sexual contact with another
minor (section 13), but the Explanatory Notes state that decisions whether to prosecute in
cases where both parties are minors are to be taken on a case by case basis. 146 The Crown
Prosecution guidelines state “[I]t is not in the public interest to prosecute children who
are of the same or similar age and understanding that engage in sexual activity, where the
activity is truly consensual for both parties and there are no aggravating features, such as
coercion or corruption.”147
4.12.2. Northern Ireland
Northern Ireland follows a similar legal framework, under the Sexual Offences (Northern
Ireland) Order 2008.148 This Act overhauled the sexual offences laws in Northern Ireland,
and fixed the age of consent at 16 in line with the rest of the UK; prior to this Act it was
17.
The term statutory rape is not used in the legislation but it is the term that is commonly
used for unlawful sexual contact with a person aged under 17 years.149 Until June 2006,
charges for this offence were brought under the Criminal Law (Amendment) Act 1935. In
the case of CC v Ireland, the Attorney General and the Director of Public
Prosecutions,150 the Supreme Court held that Section 1 of the Criminal Law
(Amendment) Act 1935 Act was unconstitutional. The Supreme Court unanimously
declared unconstitutional the law under which any man is automatically guilty of a crime

145
Sexual Offences Act 2003, http://www.legislation.gov.uk/ukpga/2003/42/notes/division/5/1/5 (last
visited March 7, 2019)
146
Sexual Offences Act 2003, http://www.legislation.gov.uk/ukpga/2003/42/notes/division/5/1/13 (last
visited March 7, 2019)
147
CPS. Rape and Sexual Offences: Chapter 2: Sexual Offences Act 2003 - Principal Offences, and
Sexual Offences Act 1956 - Most commonly charged offences,
http://www.cps.gov.uk/legal/p_to_r/rape_and_sexual_offences/soa_2003_and_soa_1956/#a26 (last
visited March 7, 2019)
148
The Sexual Offences (Northern Ireland) Order
2008, http://www.legislation.gov.uk/nisi/2008/1769/contents (last visited March 7, 2019)
149
Citizens Information, The law on sexual offences in
Ireland,http://www.citizensinformation.ie/en/justice/criminal_law/criminal_offences/law_on_sex_offen
ces_in_irelani.html (last visited March 7, 2019)
150
[2006] IESC 33
 91

if he has sex with a girl under 15. The court made its decision on several grounds,
including the failure to allow the defence that a genuine mistake had been made about a
girl’s age.
The Supreme Court agreed that the section offered absolutely no defence once the act of
sexual intercourse was established. Mr Justice Hardiman said that once a man had sex
with a girl whom he honestly believed to be over the relevant age, a mentally innocent
person is criminalised. To criminalise in such a serious way a person who is mentally
innocent inflicts a grave injury on that person’s dignity and sense of worth, he said. He
further added that the right of an accused not to be convicted of a true criminal offence in
the absence of intent was done away with by this Act.
The effect of the Supreme Court decision is that Section 1 of the 1935 Act is no longer a
part of the Act. The rest of the Act was not affected. A new Act, the Criminal Law
(Sexual Offences) Act 2006 was passed to replace the unconstitutional provisions in the
1935 Act. It also repealed and replaced Section 2 of the 1935 Act. The original 1935 Act
has now been amended many times.
4.12.3. Scotland
In Scotland, the Sexual Offences (Scotland) Act 2009 also fixes an age of consent of 16,
and is also two tiered, treating children under 13 differently than children 13-16. Section
18, Rape of a young child, applies to children under 13.151 Before the enactment of this
Act, Scotland had very few statutory sexual offenses, with most of its sexual legislation
being defined at common law, which was increasingly seen as a problem.152 The creation
of a two tier age limit was deemed very important during the drafting of the Act.153
4.12.4. U.S.A.
In the U.S., statutory rape laws vary by states. A common misconception about statutory
rape is that state codes define a single age at which an individual can legally consent to
sex. Only 12 states have a single age of consent, below which an individual cannot
consent to sexual intercourse under any circumstances, and above which it is legal to

151
Sexual Offences (Scotland) Act 2009, http://www.legislation.gov.uk/asp/2009/9/section/18 (last
visited March 8, 2019)
152
See SCOTTISH LAW COMMISSION, REPORT ON RAPE AND OTHER SEXUAL OFFENCES 2 (2007).
153
Id. at 63-66.
 92

engage in sexual intercourse with another person above the age of consent. For example,
in Massachusetts, the age of consent is 16 years.
In the remaining 39 states, other factors come into play: age differentials, minimum age
of the victim, and minimum age of the defendant. Each is described below.
Minimum age requirement154: In 27 states that do not have a single age of consent,
statutes specify the age below which an individual cannot legally engage in sexual
intercourse regardless of the age of the defendant. The minimum age requirements in
these states range from 10 to 16 years of age. The legality of sexual intercourse with an
individual who is above the minimum age requirement and below the age of consent is
dependent on the difference in ages between the two parties and/or the age of the
defendant. For example, in New Jersey, the age of consent is 16, but individuals who are
at least 13 years of age can legally engage in sexual activities if the defendant is less than
4 years older than the victim.
Age differential155: If the victim is above the minimum age and below the age of consent,
the age differential is the maximum difference in age between the victim and the
defendant where an individual can legally consent to sexual intercourse. In 27 states, the
legality of engaging in sexual intercourse with minors is, at least in some circumstances,
based on the difference in age between the two. In 12 of these states, the legality is
based solely on the difference between the ages of the two parties. For example, in the
District of Columbia it is illegal to engage in sexual intercourse with someone who is
under the age of consent (16) if the defendant is 4 or more years older than the victim.
Minimum age of defendant in order to prosecute156: This is the age below which an
individual cannot be prosecuted for engaging in sexual activities with minors. 16 states
set age thresholds for defendants, below which individuals cannot be prosecuted for
engaging in sexual intercourse with minors. For example, in Nevada, the age of consent
is 16; however, sexual intercourse with someone who is under 16 years of age is illegal
only if the defendant is at least 18 years of age (the age at which the defendant can be
prosecuted).

154
U.S. Dept. of Health & Human Services, Statutory Rape: A Guide to State Laws and Reporting
Requirements,http://aspe.hhs.gov/hsp/08/sr/statelaws/summary.shtml#_ftnref24 (last visited March 8,
2019).
155
Ibid
156
Id.
 93

States that set a minimum age of the defendant also tend to have minimum age
requirements for the victim. Often, the age of the defendant is only relevant if the victim
is above the minimum age requirement. For example, in Ohio, sexual intercourse with
someone under 13 years of age is illegal regardless of the age of the defendant. However,
if the victim is above this minimum age requirement (13) and below the age of consent
(16), it is only illegal to engage in sexual intercourse with that individual if the defendant
is at least 18 years of age.
Some states define minimum age thresholds for defendants and age differentials. For
example, in North Carolina, the age of consent is 16 years. Sexual intercourse with
someone who is under the age of consent is only illegal if the defendant is: (1) at least 4
years older than the victim and (2) at least 12 years of age (the age at which the defendant
can be prosecuted).
It is worth noting here thatmost states do not have laws that specifically use the term
“statutory rape;” only five include the offense of statutory rape. 157More often, state
statutes include a variety of offences addressing voluntary sexual activity involving
minors. In New Jersey, for example, sexual activities involving minors is addressed in
three offenses: criminal sexual contact, sexual assault, and aggravated sexual assault. The
ages of the victim and the defendant as well as the nature of the sexual activity dictate
under which offence the conduct falls.
In some cases, provisions addressing statutory rape are embedded in rape or sexual
assault laws that typically apply to violent offences. For example, New Hampshire
defines “felonious sexual assault” as voluntary sexual penetration with someone who is at
least 13 years of age and under 16 years of age, as well as acts involving the use of
physical force irrespective of the age of either party. Other states have separate offences
specifically concerned with sexual crimes involving a minor. For example, Alaska’s
statute includes four offenses that deal specifically with the sexual abuse of a minor.

157
The Georgia, Mississippi, Missouri, North Carolina, and Tennessee statutes include the offence of
statutory rape. The situation in which an act would be considered statutory rape differs by state.
The crime of statutory rape in North Carolina is also referred to as “sexual offense of person who
is 13, 14, or 15 years old.” In addition to the five states listed, the Pennsylvania statutes include the
offense of “statutory sexual assault.” Similarly, “statutory sexual seduction” is a crime in Nevada.
 94

State statutes also use a variety of terms when referring to sexual acts (e.g., sexual
intercourse, sexual penetration, sexual contact, indecent contact), and the definitions of
these terms are not always consistent across states.
Understanding the different terms used in a state statute is especially important in those
states where an individual may be able to legally consent to one type of sexual activity
but not another. For example, Alabama’s laws regarding the legality of sexual activities
with individuals who are under 16 years of age and more than 12 years of age differ
depending on the nature of the activities. In cases involving sexual intercourse,
defendants over 16 years of age who are at least 2 years older than the victim are guilty of
rape in the second degree. However, sexual contact is only illegal in cases where the
defendant is at least 19 years of age.
More often though, all of the acts will be illegal (with the same age requirements), but the
severity of the punishment will differ based on the type of sexual activity. In Kentucky
for example, sexual activities with children under 12 years of age are illegal regardless of
the age of the defendant. If the activities amount to sexual contact, the defendant is guilty
of first degree sexual abuse (a Class D felony); if they amount to sexual intercourse, the
defendant is guilty of first degree rape (a Class A felony).
Depending on the state, defendants may be exempt from prosecution if they are married
to the victim. In some states, marriage is a defence to all of the crimes listed (e.g., Alaska,
District of Columbia, West Virginia); other states exclude some of the more aggravated
offenses from this exemption (e.g., Arkansas, Louisiana, Mississippi).158In a few states,
the criminal statutes identify age limits for the marriage exemptions.159

4.12.5. Canada
The Criminal Law in Canada is federal and is contained, for the most part, in the
Criminal Code. Canada's Criminal Code has no specific “rape” provision. Instead, it
defines assault and provides for a specific punishment for “sexual assault”. In defining
“assault”, the Code includes physical contact and threats. The provision reads:

158
In Arkansas, marriage is a defence to 2nd, 3rd, and 4th degree sexual assault but not rape.
159
In South Carolina, the spousal exemption does not apply to marriages entered into by a male
under 16 years of age or a female under 14 years of age.
 95

265. (1) A person commits an assault when—

(a) without the consent of another person, he applies force

intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to
another person, if he has, or causes that other person to believe on
reasonable grounds that he has, present ability to effect his
purpose; or
(c) while openly wearing or carrying a weapon or an imitation
thereof, he accosts or impedes another person or begs.
(2) This section applies to all forms of assault, including sexual assault,
sexual assault with a weapon, threats to a third party or causing bodily
harm and aggravated sexual assault.
Interestingly, the definition ‘appears’ to include threats of sexual assault as a sexual
assault itself.160 This suggests a person could be convicted of sexual assault without
physically touching the victim if they make a threat of sexual assault.161
On May 1, 2008 the age of consent to sexual activity changed in Canada. The new law
has raised the legal age of consent from 14 years of age to 16 years of age. The reason for
the increase in age is to broaden protection laws for young teens that are at risk of being
exploited by adults.162 This age of consent is however subject to the following exception:
The age of consent is 18 years if the relationship is exploitative of the youth. According
to the Department of Justice Canada, exploitative sexual activity refers to “sexual activity
involving prostitution, pornography or where there is a relationship of trust, authority,
dependency or any other situation that is otherwise exploitative of a young person”.
So that youth aren’t criminalized for similar age sexual activity there are also two other
exceptions:
Peer Group Exception: A 14 or 15 year old can consent to sexual activity with an older
person as long as that person is less than five years older and there is no relationship of
trust, authority or dependency or any other relationship exploitative of the young person.

160
Sexual Assault Criminal Process, Canada,http://www.sexassault.ca/criminalprocess.htm (last visited
March 9, 2019)
161
Ibid
162
Age of Consent for Sexual Activity, available at
http://www.healthunit.org/sexual/school/resources/Age%20of%20Consent.pdf (last visited March 9,
2019).
 96

Close in Age Exception: A 12 or 13 year old can consent to sexual activity with another
young person who is less than two years older and with whom there is no relationship of
trust, authority or dependency or any other relationship of exploitative nature.

********
 97

UNNATURAL OFFENCES AND THE LAW IN INDIA

Section 377 of the Indian Penal Code defines and prescribes punishment for unnatural
offences. This section, as the title suggests, refers to sexual intercourse, which were
considered unnatural more than 100 years ago. It corresponds to anti-sodomy laws that
were prevalent in Victorian England. The term carnal intercourse refers to sexual
intercourse between two men, or in other words homosexual relationship. Since
penetration is an essential ingredient of the offence, it does not bring within its purview
lesbian or sexual relationship between two women. It may be pointed out that anti-
sodomy laws stand repealed today in the parent country, in England and in many other
countries of the world like Australia, south Africa and so on. Even in India, there is a
long standing demand from various quarters to repeal this section and thus it has become
the subject matter of this research. Before having any further discussion on the
desirability of this section, let us first have a look upon the ambit and scope of this
section.

5.9. SCOPE AND AMBIT OF SECTION 377

Section 377 states whosoever has carnal intercourse against the order of nature with any
man, woman or animal shall be punished with imprisonment for life or for imprisonment
of either description for a term which may extend to ten years and shall also be liable for
fine. Explanation to this section states that penetration is sufficient to constitute carnal
intercourse necessary to the offence described in this section. This section deals with
unnatural carnal intercourse against the order of nature. It consists of penetration per
anus. Consent of the parties here is immaterial and the party consenting is equally liable
as an abetter. The unnatural offences discussed under this section are sodomy and
bestiality.
The word sodomy generally denotes intercourse per anus by a man with a man or with a
woman or with animal. Sodomy may be either homosexual or heterosexual. In case the
parties are of same sex, it will be termed as homosexual and if the parties are of opposite
sex, it will be called as heterosexual. Consent unlike rape is not a defence to the charge.
The person effecting the intercourse is known as the agent and the other party as patient
 98

Bestiality means the sexual intercourse either by a man or by a woman carried out in any
way with a beast (animal) or bird. The section is wide enough to include a woman as
well. Hence, a woman is also liable for committing unnatural offence under this section.
However, the section is not attracted if the act is done either by a man or a woman worth
an inanimate object.
5.9.1. Ingredients
The section requires proof of the following conditions to hold a person liable for the
offence i.e.-
(i) The accused must have carnal intercourse with a man, woman or an animal,
(ii) The act was against the order of nature;
(iii)The act was done voluntarily by the accused;
(iv) There was proof of penetration.
5.9.2. Punishment
The section carries as severe a punishment as that of rape. The punishment may extend to
imprisonment for life or imprisonment up to ten years and fine. At one time in England
‘unnatural offence’, (i.e. beggary) was a capital offence and the offender was burnt alive.
163

5.10. HISTORICAL BACKGROUND

The criminalization of unnatural offences is argued by many to be a British legacy, which
most of the common law countries including India inherited. The veracity of this claim
needs to be tested and thus it becomes important for us to have a look upon the brief
history of these offences. We will first of all have a look on the Laws operating in ancient
India in this regard. Then, we will have a look upon the History of these offences in
England and how it was introduced to modern India.
5.10.1. Ancient India
Even in Ancient India, the Law prohibited unnatural carnal intercourse. According to
Manu, a man is guilty of unnatural offence in the following circumstances:-
When he has sexual relations with beast, another man, a woman in her monthly courses,
at improper place and time or when he enters her carnally in places other than female
organs and when he emits his semen in water.

K.D. Gaur, “Textbook on the Indian Penal Code”, Fourth Edition, Universal Law Publishing Co.
163

Pvt. Ltd., New Delhi (2012)

 99

In such cases, Manu required the guilty to take guilty his bath with clothes on and
perform various expiatory penances. It really appears strange that Manu, who is a strong
upholder of the highest standard of sex morality, does not prescribe legal punishment in
cases of unnatural offences. He rather treats them simply as religious offences and
prescribes only religious expiations or simple bath for persons guilty of these offences.164
Most of his succeeding law givers like Kautilya, Yajnavalakaya, Narada and Visnu
prescribe legal punishments for these offences but the punishment prescribed by them is
light and mostly of pecuniary nature. Thus, we find that in ancient India, the Law was not
very strict with regard to unnatural offences and the strict laws against unnatural offences
were mostly a British legacy, which we inherited. Thus, it becomes important to have a
look at the History of these offences in England.
5.10.2. England
The first records of sodomy as a crime at Common Law in England were chronicled in
the Fleta, 1290, and later in the Britton, 1300. Both texts prescribed that sodomites should
be burnt alive. Such offences were dealt with by the ecclesiastical Courts. The Buggery
Act 1533, formally an Act for the punishment of the vice of Buggerie, was an Act of the
Parliament of England that was passed during the reign of Henry VIII. It was the
country's first civil sodomy law. The Act defined buggery as an unnatural sexual act
against the will of God and man and prescribed capital punishment for commission of the
offence. This Act was later defined by the Courts to include only anal penetration and
bestiality. The Act remained in force until its repeal in 1828.
The Buggery Act of 1533 was re-enacted in 1563 by Queen Elizabeth I, after which it
became the charter for the subsequent criminalisation of sodomy in the British Colonies.
Oral-genital sexual acts were removed from the definition of buggery in 1817.
The Act was repealed by Section 1 of the Offences against the Person Act 1828 and by
Section 125 of the Criminal Law (India) Act 1828 (c.74). It was replaced by Section 15
of the Offences against the Person Act 1828, and section 63 of the Criminal Law (India)
Act 1828, which provided that buggery would continue to be a capital offence. With the

Ram Mohan Das, ‘Crime and Punishment in Ancient India (with a particular reference to the
164

manusmriti)”, Kanchan Publications, Bodh Gaya (1982)

 100

enactment of the Offences against the Person Act 1861 buggery was no longer a capital
offence in England and Wales. It was punished with imprisonment from 10 years to life.
5.10.3. Modern India
The offence of sodomy was introduced in India on 25.7.1828 through theAct for
Improving the Administration of Criminal Justice in the East
Indies(9.George.IV).Chapter LXXIV Clause LXIII “Sodomy” – “And it be enacted, that
everyperson convicted of the abominable crime of buggery committed with
eithermankind or with any animal, shall suffer death as a felon”
In 1837, a Draft Penal Code was prepared which included: Clauses 361 –“Whoever
intending to gratify unnatural lust, touches for that purpose any personor any animal or is
by his own consent touched by any person for the purpose ofgratifying unnatural lust,
shall be punished with imprisonment of either descriptionfor a term which may extend to
fourteen years, and must not be less than twoyears”; and Clause 362 - “Whoever
intending to gratify unnatural lust, touches forthat purpose any person without that
person’s free and intelligent consent, shall bepunished with imprisonment of either
description for a term which may extend tolife and must not be less than seven years, and
shall also be liable to fine.”
In Note M of the Introductory Report of Lord Macaulay to the Draft Code these clauses
were left to his Lordship in Council without comment observing that: “Clauses 361 and
362 relate to an odious class of offences respecting which it is desirable that as little as
possible be said. We leave without comment to the judgment of his Lordship in Council
the two Clauses which we have provided for these offences. We are unwilling to insert,
either in the text, or in the notes, anything which could have given rise to public
discussion on this revolting subject;
as we are decidedly of the opinion that the injury which would be done to the morals of
the community by such discussion would far more than compensate for any benefits
which might be derived from legislative measures framed with the greatest precision.”
However, in Report of the Commissioner’s Vol XXVIII it was observed that the clauses
and the absence of comments had created “a most improper ambiguity”. Some members
noted that the existing law on the subject is dead letter and also that the said offence had
 101

been omitted in revised statutes of Massachusetts and French Penal Code unless the
sufferer is below 10 years of age.
The IPC along with Section 377 as it exists today was passed by the Legislative Council
and the Governor General assented to it on 6.10.1860. The understating of acts which fall
165
within the ambit of Section 377 has changed from non-procreative to imitative of
sexual intercourse166 to sexual perversity167.There has been a long standing demand to
decriminalise homosexuality all over the world. In 1954, a historical report was submitted
by the Wolfenden Committee on this issue. Thus, it becomes important to have a look on
the report of this Committee.

5.11. THE WOLFENDEN COMMITTEE REPORT

The move for the changes in the Law relating to homosexuality in the U.K. was triggered
in 1954 when the home Secretary appointed the Committee on Homo Sexual Offences
and Prostitution, headed by Sir John F. Wolfenden to recommend reforms in the law
relating to homosexuality and prostitution.
The Wolfenden Committee drew heavily upon two traditional ‘liberal’ concepts in its
approach to the problem at hand. It adopted the Benthamite principle that there are
‘changing concepts of taste and morality’ i.e. a positive belief that morality changes with
time and within different cultures. It also relied upon Millsian doctrine that legal
intervention in private life is only ever justified in order to prevent harm to others.
John Stuart Mill in his Onliberty, delving into the nature and limits of the state power that
can be legitimately exercised in a civilized society ever and individual against his will,
observed,
“The sole end for which mankind are warranted, individually or collectively, in
interfering with the liberty of action of any of their number is self-protection. That the
only purpose for which power can be rightfully exercised over any member of a civilized
community, against his will is to prevent harm to others. His own good, either physical or
moral is not a sufficient warrant. He cannot rightfully be compelled to do or forbear
because it will be better for him to do so, because it will make him happier, because, in
the opinions of others, to do so would be wise, or even right. These are good reasons for

165
KhanuvEmperor AIR 1925 Sind 286
166
LohanaVasantlalvState AIR 1968 Guj 352
167
FazalRab v State of Bihar AIR 1963, Mihir v. Orissa 1991 Cri LJ 488
 102

remonstrating with him, or persuading him, or entreating him, but not for compelling him
or visiting him with any evil in case he does otherwise. To justify that, the conduct from
which it is desired to deter him must be calculated to produce evil to someone else. The
only part of the conduct of anyone for which he is amenable to society is that which
concerns other. In the part which merely concerns himself, his independence is, of right,
absolute. Over himself, over his own body and mind, the individual is sovereign.
The Wolfenden Committee, seeking support from the Mill’s thesis, argued, in its report
submitted in September 1957 to the home secretary, that the purpose of criminal law is:
(i) to protect individuals from ‘offensive and injurious’ matters, (ii) to protect them from
‘corruption and corruption’, and (iii) to ‘preserve public order and decency’. Based on
this functional premise of criminal law, it formulated operational orbit of the criminal law
in the area of homosexuality. Articulating its ‘own formulation of the function of criminal
law’ relating to homosexuality and prostitution, the Committee observed,
“Its function, as we see it, I to preserve public order and decency, to protect the citizens
what is offensive or injurious, and to provide sufficient safeguards against exploitation
and corruption of others…It is not, in our view, the function of criminal law to intervene
in the private lives of citizens or to seek to enforce any particular pattern or behavior
further than is necessary to carry out the purpose we have outlined. It follows that we do
not believe it to be a function of the law to attempt to cover all the fields of sexual
behavior. Certain forms of criminal behavior are regarded by many as sinful, morally
wrong, or objectionable for reasons of conscience, or of religious or cultural tradition;
and such actions may be reprobated on these grounds.”168
Placing reliance on its formulation of the function orbit of criminal law, the Committee
argued that consensual homosexual act between consenting adults in private does not fit
into theoretical as well as operation paradigm of criminal law as it is neither ‘offensive or
injurious to others nor does it involve ‘exploitation and corruption’ of a ‘especially
vulnerable, ‘weak’ or inexperienced ‘individual. A consensual homosexual act in
between private harms no one. It merely falls in the sphere of private immorality. The
Committee, almost, in a tone similar to that of John Stuart Mill, stressed that society and

168
K.I. Vibhute, ‘Consensual Homosexuality and the Indian Penal Code: Some Reflections on
Interplay of Law and Morality’ 51 JIlI (2009)
 103

the law needs to give importance to individual freedom of choice and action in matters of
private morality. Criminal law, therefore, has not to equate crime with sin. The
Committee asserted that ‘there must remain realm of private morality and immorality
which is, in brief and crude terms, not the law’s business. It is not the business of
criminal law to enter into the domain of private lives of citizens and to enforce standards
of morality in sexual behaviour by going beyond its (criminal law) legitimate purposes.
Such a legislative restriction, in its perception, amounts to an unauthorized intervention in
the individuals’ free choice of sexual enjoyment and privacy. The committee stressed that
it is not proper for the law to concern itself with what a man does in private unless it can
be shown to be so contrary to the public good that the law ought to intervene in its
function as the guardian of the public good ‘. The committee, therefore, asserted that
homosexuality behaviour between consenting adults in private should be kept outside the
purview of criminal law. It does not have any business to enter into ‘a realm of private
morality. The Committee, with only one dissenter, recommended that homosexual
behaviour between consenting adults in private should no longer be a criminal offence’
but the Home Secretary did not accept the recommendation of the Wolfenden Committee

5.12. HART- DEVLIN DEBATE

Lord Patrick Devlin, in the second Maacabaean lecture in Jurisprudence delivered in
British academy on march 18,1959 after the Wolfenden committee report came out in
September 1957, assailed the Mill’s thesis and the Wolfenden committee’s formulation of
criminal la vis-a vis private morality. He observed: “What has hitherto been accepted as
the basis of the criminal law and that is that are certain standards of behavior or moral
principals which society requires to be observed; and the breach of them is an offence not
merely against the person who is injured but against society as a whole. If the criminal
law were to be reformed so as to eliminate from it everything that was not designed to
preserve order and decency or to protect citizens including the protection of youth from
corruption, it would overturn a fundamental principle. It would also end a number of
specific crimes. Euthanasia or the killing of another at his own request, suicide, attempted
suicide and suicide pacts, duelling abortion, incest between brother and sister , are all acts
which can be done in private and without offence to others and need not involve the
corruption or exploitation of others. Many people think that the law on some of these
 104

subjects is in need of reform, but no one hitherto has gone so far as to suggests that they
should all be left outside the criminal law as matters of private morality. They can be
brought within it only as a matter of moral principal. It must be remembered also that
although there is much immorality that is not punished by the law, there is none that is
condoned by the law. I think it is clear that the criminal law as we know it is based upon
moral principal.”169
With convincing reasons and apt concrete examples, he argued that society, not an
individual, has the right to pass judgments in the matter of morals and it has the right to
use criminal law to enforce those moral judgments. Asserting that ‘society means a
community of ideas; without shared ideas in politics, morals and ethics no society can
exist’, he argued that some kind of shared morality, i.e., some common agreement about
what is right and what is wrong, which operates as one of the ‘invisible’ bonds that keep
the society intact, is necessary for the social existence. If social mores, i.e., ideas about
the way its members should behave and govern their lives, are not enforced, the society,
he argued, will ‘disintegrate’ from within. The loosening of moral bonds is often the first
stage of disintegration. He therefore argued that criminal law has legitimate claim not
only to speak about morality and immorality but is also concerned with immorality. The
society has a right to preserve, through the weapon of criminal law and its sanctions, its
moral code for the social existence.
He argued that ‘the suppression of vice is as much the law’s business as the suppression
of subversive activities. If society hates homosexuality, it is justified in outlawing it.
Society has right to punish homosexuality if its members strongly disapprove it, even
though it has no effect that can be deemed injurious to others. He asserted that in a
number of crimes criminal law’s function is simply to enforce a moral principal and
nothing else’. He also failed to see any ‘theoretical limits’ on the state’s power to
legislate against immorality.’
Professor HLA Hart, however in a series of lectures delivered at Stanford University in
1962, addressed the question of the enforcement of morals through criminal law. In the
course of his lectures, he disapproved Lord Devlin’s thesis that ’enforcement of morals’

Patrick Devlin, ‘The Enforcement of Morals’ , Oxford University Press, 1965 quoted in K.I.
169

Vibhute, ‘Consensual Homosexuality and the Indian Penal Code: Some Reflections on Interplay of
Law and Morality’ 51 JIlI (2009)
 105

through criminal law is necessary for the preservation of society and the society has right
to do so. He argued that it is indeed absurd to believe that everything that society views
profoundly immoral and disgusting threatens the social existence. It depends upon the
‘nature’ and characteristics of the society and of moral principals it wants to preserve.
Supporting the Wolfenden Committee’s stand, he argued that the Lord Devlin’s assertion
that the immorality jeopardizes or weakens society, in the absence of empirical evidence
is a mere a priori assumption. Prof. HLA Hart argued that Lord Devlin has failed to
demonstrate with empiricism, that deviation from accepted sexual moral, even by adults
in private, is something that threatens the existence of society. It is of course clear and
one of the oldest insights of political theory he observed that society could not exist
without a morality which mirrored and supplemented the law’s proscription of conduct
injurious to other but there is again no evidence to support and much to refute, the theory
that those who deviate from conventional sexual morality or in other ways hostile to
society. It is indeed absurd, he emphasised, to enforce any deviation from society’s
shared morality merely on the apprehension that such a deviation threatens the social
existence. 170
Prof. H.L.A Hart, with assertion equal to that of Lord Devlin, claimed that criminal law
has nothing to do with morals and it in fact, has to hands off when it comes to the
enforcement of the moral or immoral principles. He asserted that no one should think
even when popular morality is supported by an overwhelming majority or marked by
wider spread intolerance, indignation and disgust that loyalty to democratic principles
require him to admit that its imposition on minority is justified.
The Devlin- Hart debate over the legal enforcement of morality, which emerged into
familiar arguments-the legal moralism and the harm to other principle, is not merely of
academic interest. It indeed leads to two conflicting paradigms and justification for
criminalization of homosexuality including homosexual acts between consenting adults
in private. The first theoretical paradigms allows and justifies legislative interference
against homosexuality the moment it is perceived as immoral no other justification,
except immorality per se, for legislative interference in the so called sexual autonomy is
necessary. While the later approach does not allow legislature to legislate against

170
Ibid
 106

homosexuality merely on the ground that it is ‘immoral’ or society condemns it. It can
legislate against homosexuality, if it in a convincing way causes harm to others, is
injurious, or offensive to others, or leads to exploitation or corruption of others.
However, it is difficult to say, with precision, as to whether the law against
homosexuality articulated in section 377 of the penal code is premised on the legal
moralism, advocated by Stephen J (and Lord Devlin) or the harm to others’ principle
propounded by John Stuart Mill (and Prof. HLA Hart).

5.13. OPINION OF THE LAW COMMISSION OF INDIA

The Fifth and the Fourteenth Law Commission of India headed by former judges of
Supreme court of India and composed of well known experts in law which on reference
from the government of India respectively in the later half (1971) and at the end of
twentieth century (1997) undertook a comprehensive review of IPC, however, did not
delve deep into the complex interplay of morals vis-à-vis legal intervention against adult
consensual homosexual behaviour in private. The fifth law commission took note of the
stand of the Wolfenden committee that consensual homosexuality between consenting
adults in private being a matter of private immorality, be decriminalized, as it not the
law’s business to enter into the matters of private immorality. Recalling the inconclusive
end of the debate sparked off by the Wolfenden committee, the fifth law commission
believed that disapproval of homosexuality by the Indian community justifies the section
377, the law against homosexuality, in the penal code.
The Fifth Law Commission was of the opinion that it is a very controversial field and
thus the only safe guide is what would be acceptable to the society and since an
overwhelming majority disapproves this act, its retention is justified. But the Law
Commission felt that the punishment is very harsh and recommended the same to be
lowered down. While the fourteenth law commission preferred to endorse the proposals
for reform suggested by the fifth law commission and to add a few more suggestions to it
without examining immoral contours of the anti-homosexuality law.
However the Law Commission in its 172nd report recommended the deletion of section
377. The Law Commission was of the view that the changes recommended by it in
section 375 will cover all the useful purposes for which section 377 are used. The only
area that will be left will be bestiality and law should not be concerned with that offence.
 107

5.14. POSITION IN OTHER COUNTRIES

For a complete understanding of this provision it is important to be informed about the
fact that there is a growth in the gay and lesbian rights movement the world over. Gay
and lesbian rights activists have challenged successfully the hitherto socially prevalent
stance that a homosexual or lesbian relationship is unnatural or against the law of nature.
Many countries have now repealed anti-sodomy laws as being discriminatory and in
violation of human rights. Despite the still prevalent social censure of gay and lesbian
relationships, there is a growing yet grudging recognition of the fact that the same sex
desire or in other words homosexuality, has to be recognised as an alternate sexuality,
which existed and exists in every community and every society, irrespective of region,
race, caste or community. Even if there are few prosecutions under this section, it is not
uncommon for persons practicing homosexuality to be persecuted, harassed and socially
ostracised. It is argued that as sexual minorities, their rights should also be protected.
South Africa is the first country in the world which has expressly guaranteed protection
to sexual minorities or homosexuals and lesbians. The south African constitution which
was adopted on 10 December 1996, has specifically provided that no person shall be
unfairly discriminated against directly or indirectly….on one or more of the following
grounds, in particular, race, gender, sex, sexual orientation….or language. The term
sexual orientation has been added to specifically safeguard the interests of homosexuals
and lesbians.
While South Africa is the only country to make an express provision making sexual
orientation a prohibited ground of discrimination in other countries too, courts have read
into the existing laws protection against such discrimination. The European Commission
of Human rights has held that the anti sodomy laws of Ireland171, Great Britain172 and
Cyprus173 violated the right to privacy guaranteed under Article 8 of the European
Charter of Human Rights.
In the United States of America, the Hawaiian Supreme Court in Boehr v Levin174has
held that prohibition of same sex marriage violated the clause on non- discrimination on

171
Norris v Ireland 13 Eur Ct HR 149 (1981)
172
Dudgeon v Great Britain 4 Eur Ct HR 149 (1981)
173
Modinos v Cyprus 16 Eur Ct HR (1993)
174
852 P 2d at 144
 108

the basis of sex. Similarly the Canadian Supreme Court has held that spousal benefits
should be applicable to gay and lesbian couples as well. The Law of the State of Ontario,
which defined spouse as heterosexual only, was held to be unconstitutional175.
In Toonenv Australia176, the Human Rights Commission of the United Nations went a
step further than the European Commission of Human Rights. Nicholas Toonen, a gay
rights activist was a resident of the Australian state of Tasmania. He challenged the Anti-
Sodomy Laws of Tasmania as being violative of Articles 2(1), 17 and 26 of the
International Covenant on Civil and Political Rights. His contention was accepted by the
Human Rights Committee, which held that the anti-sodomy laws violated the right to
privacy guaranteed under Article 17 and the rights against discrimination on the ground
of sex. The Human Rights Committee also held that the term sex included sexual
orientation.
Viewed in the backdrop of these International developments, section 377 of the Indian
Penal Code seems to be outdated and moral of a bygone era. In keeping with
International trends in Jurisprudence and legal discourse, it is important that our law is
also brought in line with International standards and the section be repealed.

5.15. NAZ FOUNDATION V GOVT OF NCT OF DELHI

In 2001 the NAZ Foundation – a non-governmental organisation working in the field of
HIV/AIDS intervention and prevention – filed a writ petition before the Delhi High Court
seeking a declaration that Section 377, to the extent that it penalised sexual acts in private
between consenting adults, violated the India Constitution, specifically, Articles 14
(equality before the law), 15 (non-discrimination), 19(1)(a)-(d) (freedom of speech,
assembly, association and movement) and 21 (right to life and personal liberty). The Naz
Foundation argued that the law had a discriminatory effect because it was predominantly
used against homosexual conduct, thereby criminalising activity practiced more often by
homosexual men and women. This was said to jeopardise HIV/AIDS prevention methods
by driving homosexual men and other sexual minorities underground. It was further
argued that, as private consensual relations were protected under Article 21 of the
Constitution, Section 377 was invalid as there was no compelling state interest to justify

175
MV v H Guardian 22 May 1999
V Suresh & D Nagasaila, ‘PSA Pillai’s Criminal Law’, Ninth Edition, Lexis Nexis
176

Butterworhts(2007)
 109

the curtailment of a fundamental freedom. The Naz Foundation also argued that Section
377 violated Article 14 on two grounds: first, because it was unreasonable and arbitrary
to criminalise non-procreative sexual relations, and secondly, because the legislative
objective of penalising “unnatural” acts had no rational nexus with the classification
between procreative and non-procreative sexual acts.
In 2004, the High Court dismissed the writ petition on the grounds that only purely
academic issues had been submitted which could not be examined by the court. It did the
same in relation to a subsequent review petition. The NAZ Foundation challenged both
orders and the writ petition was remitted for a fresh decision in 2006.
In its 2009 decision, the High Court found in favour of the NAZ Foundation and accepted
its arguments that consensual same-sex sexual relations between adults should be
decriminalised, holding that such criminalisation was in contravention of the
Constitutional rights to life and personal liberty, equality before the law and non-
discrimination. In reaching its decision, whilst the court placed a great deal of emphasis
on domestic judgments, the court also relied on comparative law in reaching its decision,
referring to judgements from various jurisdictions including the European Court of
Human Rights, the United Kingdom, the Republic of Ireland, South Africa and the USA.
The court also relied upon a number of progressive international legal frameworks
including the Yogyakarta Principles and the 2008 Declaration of Principles of Equality
produced by the Equal Rights Trust as well as a number of reports and documents
demonstrating the discriminatory effect of Section 377. In its reasoning, the High Court
stated that Section 377 “grossly violates [homosexual individuals’] right to privacy and
liberty embodied in Article 21 insofar as it criminalises consensual acts between adults in
private”. The court also held that:
“Section 377 criminalises the acts of sexual minorities, particularly men who have sex
with men. It disproportionately affects them solely on the basis of their sexual
orientation. The provision runs counter to the constitutional values and the notion of
human dignity which is considered to be the cornerstone of our Constitution”.177

5.16. SURESH KUMAR KAUSHAL VNAZ FOUNDATION

177
Naz Foundation v Government of NCT of Delhi, 160 Delhi Law Times 277 (Delhi High Court, 2009)
 110

The decision of the Delhi High Court was not appealed in the Supreme Court of India by
the Union of India but several other persons preferred to file appeal against the decision
of the High Court before the Supreme Court. The case attracted a large number of
interveners. Interveners supporting the Appellants included organisations and individuals
who have stated that they had an interest in protecting the moral, cultural and religious
values of Indian society. Interveners for the Respondents were composed of individuals
and organisations arguing that Section 377 caused harm to the LGBT community and
homosexual men in particular.
The panel of two Supreme Court judges deciding the case allowed the appeal and
overturned the High Court’s previous decision, finding its declaration to be “legally
unsustainable”. The Supreme Court ultimately found that Section 377 IPC does not
violate the Constitution and dismissed the writ petition filed by the Respondents.
Regarding its power to rule on the constitutionality of a law, the Supreme Court
acknowledged that it and the High Court are empowered to declare as void any law,
whether enacted prior to the enactment of the Constitution or after. However, it noted that
there is a presumption of constitutionality in favour of all laws, including pre-
constitutional laws, as the Parliament is deemed to act for the benefit of the people. The
Court noted that the doctrine of severability seeks to enable unconstitutional portions of
laws to be severed from the constitutional elements of the law in question with the
remainder retained and that, alternatively, that Court has the option of “reading down” a
law to prevent it from being rendered unconstitutional, whilst refraining from changing
the essence of the law. With regard to Section 377 the court observed that whilst it and
the High Court were able to review the constitutionality of the law, and were able to
strike it down to the extent of its inconsistency with the Constitution, the analysis must be
guided by the presumption of constitutionality and the courts must exercise self-restraint.
The court concluded that unless a clear constitutional violation was proved, the court was
not empowered to invalidate the law. The Supreme Court drew attention to the large
number of amendments to the Indian Penal Code since its adoption in 1860, totalling
around 30 amendments. The court recalled that Section 377, along with the rest of the
statute, was originally passed in 1860. In explaining the development of Section 377, the
court referenced numerous section 377 related cases dating back as far as the nineteenth
 111

century. The court noted that the previous cases referenced all related to non-consensual
situations and that no uniform test could be ascertained from them to classify acts would
fall under Section 377. Rather, the court stated that acts can only be determined with
reference to the act itself and the circumstances in which it is executed. Despite this, the
court stated that in light of the legislative history of Section 377, it would still apply to
same-sex couples irrespective of age and consent. The Court nevertheless maintained
that:
“Section 377 does not criminalise a particular people or identity or orientation. It merely
identifies certain acts which if committed would constitute an offence. Such a prohibition
regulates sexual conduct regardless of gender identity and orientation”.
Regarding whether the High Court was justified in entertaining the challenge to Section
377 despite the Naz Foundation not having laid a factual foundation to support its
challenge, the Supreme Court stated that the party had “miserably failed” to provide the
particulars of the discriminatory attitude exhibited by state agencies towards sexual
minorities and of their consequent denial of basic human rights. The Court held that the
details provided to the High Court were thus “wholly insufficient for recording a finding
that homosexuals, gays, etc., are being subjected to discriminatory treatment”.
In determining the application of Article 14 of the Constitution to the constitutionality of
Section 377, the Supreme Court quoted from Re: Special Courts Bill, 1987 (1979) 1 SCC
380, which set out the scope of Article 14, including the principle that legislation need
not treat all people exactly the same, but that “all persons similarly circumstanced shall
be treated alike both in privileges conferred and liabilities imposed” (emphasis added).
Further, the State had “the power of determining who should be regarded as a class for
purposes of legislation and in relation to a law enacted on a particular subject” provided
that such classification was not “arbitrary” but rational, that is to say, it must not only be
based on some qualities or characteristics which are to be found in all the persons
grouped together and not in others who are left out but those qualities or characteristics
must have a reasonable relation to the object of the legislation”. With little analysis, the
court held that:”Those who indulge in carnal intercourse in the ordinary course and those
who indulge in canal intercourse against the order of nature constitute different
 112

classesand the people falling in the latter category cannot claim that Section 377 suffers
from the vice of arbitrariness and irrational classification”.
In reviewing the reading down of the Section 377 by the High Court, the Supreme Court
stated that the High Court had overlooked the fact that “a miniscule fraction of the
country’s population constitute lesbians, gays, bisexuals or transgenders” and that over
the last 150 years, fewer than 200 persons had been prosecuted under Section 377,
concluding from this that “this cannot be made sound basis for declaring that section
ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.” The court also
regarded the discriminatory treatment complained of by the Naz Foundation as a result of
Section 377 as being neither mandated nor condoned by the provision itself and the fact
that the police authorities and others misuse.
Section 377 was not a reflection of the vires of the provision but instead may simply be a
relevant factor for Parliament to consider whilst judging whether to amend Section 377.
Regarding the application of Article 21 of the Constitution, the Supreme Court stated that
the law must be competently legislated whilst also being just, fair and reasonable, which
give rise to notions of legitimate state interest and the principle of proportionality. The
court specifically noted that the right to live with dignity had been recognised as a part of
Article 21. In assessing the High Court’s ruling that Section 377 violated the right to
privacy, autonomy and dignity, the Supreme Court spent little time analysing the
application of Article 21 to Section 377, instead criticising the High Court for relying too
extensively upon judgments from other jurisdictions in its anxiety to protect the “so-
called rights of LGBT persons”. It concluded that “Section 377 does not suffer from the
vice of unconstitutionality” with no further elaboration. The judges noted that whilst the
court found that Section 377 was not unconstitutional, the legislature was still free to
consider the desirability and propriety of deleting or amending the provision.”178

********

178
Suresh Kumar Koushal&Anr. vNaz Foundation &Ors., available at
http://judis.nic.in/supremecourt/imgs1.aspx?filename=410
 113

VI
CONCLUSION AND SUGGESTION

6.3. CONCLUSION
In the present research work, an attempt was made to critically analyse the Law relating
to Sexual Offences in India. With this aim, first of all the historical evolution of the rape
laws in India was looked into by the researcher. Then the changes brought about by the
Criminal Law Amendment Act, 2013 was analysed and it was found that the definition of
the term ‘rape’ has been widened to include non-penile and non-vaginal penetration. It is
indeed a welcome step and the Parliament has really done a commendable work by
accepting the long standing demand of the academicians and activists in this regard. The
punishments prescribed for various sexual offences have also been increased by this
Amendment but the increase in the punishment has not been able to deter persons from
committing these heinous offences in the last two years. Thus, it is humbly submitted that
it is not the severity of the Punishment but the surety of the punishment, which can have a
deterrent effect. The government should work in that direction. The researcher cannot
delve deep into this issue as this work is especially with reference to Marital Rape and
Statutory Rape.
If any reasonable prudent person is asked what rape is, he will answer that non
consensual sex is rape and consensual sex is not rape but the Law in India at times gives a
different view. At present, non-consensual vaginal sex by a husband with his wife (above
15 years of age and not living separately) is not considered rape whereas consensual anal
or oral sex between a husband and wife is an offence under section 377 of the Indian
Penal Code and both of them will be liable (husband as the offender and the wife as the
abettor). It is really surprising. Thus, a careful analysis was done with regard to the
Marital Rape and the Law in India, with a special focus on the issue whether exception 2
to section 375 needs to be deleted. For that purpose, the present position of the law was
carefully analysed, the History of the same was traced and attempts made in the direction
of criminalization of marital rape in India were thoroughly discussed.
It was found out that there exists a legal confusion with regard to the issue of marital rape
within prohibited child marriages. The provision of the section 375 of the Indian Penal
 114

Code and that of the Protection of Children from Sexual Offences Act are not in
consonance with each other. This legal confusion needs to be clarified by the Supreme
Court of India. A Public Interest Litigation has been filed in this regard before the apex
court. The Constitutional validity of different age of consent for unmarried girls (i.e. 18)
and married girls (i.e.15) has been challenged as being violative of Article 14 of the
Constitution. The arguments raised by the Independent Thought, the petitioner in this
case appear to be very strong. Let us hope the Supreme Court will do the needful in this
direction.
The provisions of law with regard to non- consensual sexual intercourse with a wife
living separately (at present contained in section 376 B) has also been analysed and it was
found out that the provisions has been amended and not only the wife living under a
decree of separation or under any custom or usage but also the wife living separately due
to any reason whatsoever is now covered under this section.
With regard to rape of a wife, above 15 years of age and not living separately, exception
2 to section 375 gives complete immunity to the husband from the charge of rape. The
researcher started with the hypothesis that the Law does not provide any remedy to such
victims of marital rape but surprisingly the hypothesis was proved to be wrong and it was
found out that such victims can get some relief under Protection of Women from
Domestic Violence Act, 2005. Protection Order, Residence Order, Maintenance Order,
Custody Order and Compensation Order can be made by the Magistrate to provide some
relief to such victims. If even after the issue of Protection Order, the husband has forcible
sex with her or uses other forms of sexual violence with her, the husband can be
sentenced to an imprisonment up to one year.
In certain cases of marital rape, victim can bring a criminal charge against the husband
under section 498A provided the forcible sex by her husband is of such nature that it is
likely to drive her to commit suicide or causes grave injury or danger to her life, limb or
physical or mental health. It was found that there is wide ignorance about the both the
legal remedies available to victim of marital rape not only among the common people but
also in the legal circles. Thus, it is suggested that these remedies need to be popularised
so that there is some solace available to a victim of marital rape.
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But that was only one part of the enquiry on the issue of marital rape. For the next
broader question whether exception 2 of section 375 should be deleted or not, the
historical background of this exemption clause was traced, position of law in other
countries was discussed, arguments in favour of and against the criminalisation of marital
rape were carefully analysed. This exemption clause was also tested on the touchstone of
the International Human Rights instruments and the Indian Constitution. It was found that
the arguments in favour of the criminalisation of marital rape outweigh the arguments
against the criminalisation of marital rape.
Most of the Historical arguments in favour of the marital rape exemption clause like
Implied Consent Theory, Unity or Wife as Property theory and Narrow Constructionist
Theory were either found to be obsolete or not applicable in Indian context. The modern
arguments against the criminalisation of marital rape like Marital privacy Theory, Marital
Reconciliation Theory, Less Harmful Theory and Lack of Evidentiary Proof or Chances
of False Accusation Theory have been ably rebutted by their critics. The exception 2 of
section 375 is not in consonance with India’s obligation under various International
Human Rights Instruments and it does not even stand on the touchstone of the Indian
Constitution. The opinion of Philsophers like John Stuart Mill, Lucy Stone and Bertrand
Russel favours criminalisation of marital rape. Justice J.S. Verma Committee report has
also recommended removal of this exception on the ground that in modern times,
marriage is a partnership of equals. Thus, it is submitted that the Parliament should delete
this exception.
Though the researcher is not convinced with the argument that this provision of law has
potential of gross misuse as in almost all the countries, wherever marital rape has been
criminalised, the problem is not the misuse rather the non-use, there appears to be no
harm in having a provision similar to section 198B of the Criminal Procedure Code
putting a bar on the cognizance by the court except upon the prima facie satisfaction by
the court that facts of the case constitute the ingredients of this offence.
Educational reforms should be undertaken so that everyone is aware that marriage should
not be regarded as extinguishing the legal and sexual autonomy of the wife. Mass media
should also spread this message and awareness programmes should also be conducted by
government and non-governmental bodies. These steps are as important as the legal
 116

reforms as they have the potential to bring social reforms and to make our society really
egalitarian. With this note, let us move towards our Conclusion with regard to the next
issue i.e. with respect to statutory rape.
At several points of time, the provisions of the Protection of Children from Sexual
Offences Act, 2012 came to the notice of this researcher and it was felt that this gender
neutral piece of legislation is really worth being appreciated specially for the child
friendly procedures prescribed under this Act. But on careful scrutiny, the fact which
came to light was that this Act was the first legislation to enhance the age of consent from
16 to 18 and the Criminal Law Amendment Act, 2013 merely confirmed this change.
One of the objectives of this research was to critically evaluate the consequences of
increase in the age of consent from 16 to 18. The research conducted by the Hindu
reveals that one third of the rape cases decided by the trial courts in Delhi were the cases
of consensual sex between young boys and girls. Since the girls in most of these cases
were of 16 to 18 years old, the boys (who were also of similar age or few years older)
were convicted of the charges of statutory rape even in the cases, where the girls admitted
their consent before the court. Majlis Foundation also claims that its research in Mumbai
reached similar conclusions. Earlier the Proviso to section 376 of the Indian Penal Code
was resorted to by the judges who would sentence the young boys for a term less than the
minimum specified but the Criminal Law Amendment Act, 2013 removed this Proviso.
Now the courts cannot take a lenient view in such cases and the young boys will have to
undergo imprisonment for a minimum of seven years.
This proves our fourth hypothesis that the increase in the age of consent is going to have
devastating consequences and now the question was to find out how to insulate such
young boys and girls from being punished as criminals. The Comparative analysis of the
position of law in other countries provided some probable solutions. It is submitted that
our laws needs to be suitably amended and on the lines of Canada, peer group exceptions
and close in age exceptions should be inserted in our laws as well. If this amendment is
made, there will be no need to decrease the age of consent from eighteen to sixteen.
It is to be noted that these suggestion are not made with an intention to promote
premarital sex rather with the sole intention to insulate the young lovers, who engage in
consensual sex, from being punished as criminals. It is also submitted that the
 117

recommendation of the Law Commission in its Forty Second Report (made way back in
1971) should be accepted and bonafide mistake of fact as to the age of the person in such
cases should be made a defence in India. This defence is available in Ireland and there
appears to be no compelling reasons why the same defence should not be made available
in India as well.
Despite the criticism of Dr. R.C. Nigam of ignorance of law being no defence in India, it
is not suggested that the same should be made a defence even in the cases of statutory
rape as it is feared that it will open a Pandora box but it is submitted that the provisions of
law (especially when a new law is made or a major amendment is brought), which
concerns the common man should be popularized.
The interactions with young boys and girls revealed that there is wide ignorance as to the
provisions relating to the provisions of statutory rape. Even many law students of the age
group 17 to 25 expressed their ignorance of the increase in the age of consent. Thus, it is
suggested that these and similar other legal provisions should be made a part of the
school curriculum and common people should also be made aware through awareness
programmes and mass media. It will have several other positive benefits associated with
it.
The next question for inquiry was with regard to section 377, the most hotly debated legal
provision of the Indian Penal Code. It has always been a controversial section as it
criminalised homosexuality. In recent years, lots of developments have occurred in this
direction. Delhi High Court decriminalised homosexuality in 2009 but the Supreme Court
recriminalized it in 2013. Thus, it became an important issue for our research. First of all
the extent and scope of this section was analysed and then an attempt was made to trace
the Historical background of this section. It was found that in Ancient India, the
unnatural offences were merely considered as religious offences. Manu prescribed bath or
some other religious penance for the same. Certain other Smritikaras prescribed very
light punishment for these offences. Thus, this provision of law in essences is found to be
a British legacy, inherited by India and though British repealed such legal provisions,
India is still continuing with it.
The report of the Wolfenden Committee and the Devlin- Hart Debate on this issue was
also looked into. It was found that the Wolfenden Committee Report, John Stuart Mill
 118

and HLA Hart support the decriminalisation of homosexuality. The reasons cited by them
also appear to be very strong. The researcher finds the arguments given by the HLA Hart
that any act should not be considered to be a crime unless it causes harm to others to be
more convincing than the arguments given by Devlin. An attempt was also made to look
into the recommendation of the Law commission on this issue. It was found that though
the Law Commission of India earlier endorsed its retention, it has changed its view and
recommended the deletion of this section in its 172nd report.
Then the judgment of Delhi High Court in Naz Foundation’s case and that of the
Supreme Court in Suresh Kumar Kaushal’s case were comparatively analysed and it is
submitted that the reasoning given by the Delhi High Court appears to be stronger than
the reasons cited by the Supreme Court. Several issues raised by the Delhi High Court
were not even discussed by the Supreme Court. It relied on the absence of statistics to
believe that section 377 is not being used to harass the sexual minorities. It also stated
that the persons belonging to gay, lesbian, bisexuals and transgender constitute a
miniscule fraction of country’s population. It is again submitted that the entire concept of
human rights evolved to protect the right of minorities, no matter how many they may be
in number; they cannot be deprived of their human rights. Thus, in this respect this
judgment does not appear to be in consonance with the philosophy of Human Rights.
In another case, the Supreme Court has itself endorsed the plight of the persons belonging
to these categories and underscored how section 377 was being used for their harassment.
Though these observations did not constitute the ratio of that case, the court threw light
upon the plight of the sexual minorities in India. The commitments which the Indian
Constitution makes to its citizens and the obligations imposed on India by the
International Human Rights instruments make it obligatory that homosexuality be
decriminalised in India. Even the Supreme Court in Suresh Kaushal’s case has given the
Parliament liberty to repeal or amend Section 377 as it thinks fit. Thus, it is submitted
that this section need not be repealed completely rather a proviso should be added to
exclude the act of consensual sex between two adults in private from within its purview.
But that will not be enough, it is also very important that the attempts should be made so
that alternative sexuality becomes acceptable to the society at large. India has a long
history of tolerance towards other cultures. The same tolerance can be developed towards
 119

alternative sexuality also if proper steps are taken in this direction. Mass media,
awareness campaigns and education reforms can be very powerful in bringing change in
the attitude of the society towards homosexuals, bisexuals and transgenders.

6.4. SUGGESTIONS
Suggestions with regard to various issued have been discussed in detail in the concerned
chapters. Here we will like to sum up all those suggestions:-
1. The Law relating to Sexual Offences in India requires immediate reforms
especially with regard to the issues of Marital Rape and Statutory Rape.
2. There exists a legal confusion with regard to the issue of marital rape within
prohibited child marriages. The provision of the section 375 of the Indian Penal
Code and that of the Protection of Children from Sexual Offences Act are not in
consonance with each other. This legal confusion needs to be clarified by the
Supreme Court of India.
3. At present there is different age of consent for marital cases (15 years) and non-
marital cases (18 years). This classification between a married girl of 15-18 years
of age and unmarried girls falling in the same age group appears to be
unreasonable and does not pass the test of reasonable classification propounded
by the Supreme Court and thus it should be done away with and the law should
prescribe same age of consent for all cases.
4. The remedies available to the victims of marital rape under the present Indian
Law i.e. under Protection of Women from Domestic Violence Act, 2005 and
under section 498A of the Indian Penal Code should be popularized through mass
media and awareness programmes. Information in this regard should also be made
available in the school textbooks.
5. Arguments in favour of and against the criminalisation of marital rape were
carefully analysed and it was found that the arguments in favour of the
criminalisation of marital rape outweigh the arguments against the criminalisation
of marital rape. Moreover exception 2 of section 375 does not even stand when
tested on the touchstone of the International Human Rights instruments and the
Indian Constitution. Thus, it is submitted this exception should be deleted and
marital rape should be brought within the definition of rape under section 375 of
the Indian Penal Code.
6. A provision similar to section 198B of the Criminal Procedure Code putting a bar
on the cognizance of the court except upon the prima facie satisfaction by the
court that facts of the case constitute the ingredients of this offence may be
inserted for all the cases of Marital Rape as well.
 120

7. Educational reforms should be undertaken so that everyone is aware that marriage

should not be regarded as extinguishing the legal and sexual autonomy of the
wife. Mass media should also spread this message and awareness programmes
should also be conducted by government and non-governmental bodies.
8. This research found that the increase in the Age of Consent from 16 to 18 vide
Protection of Children from Sexual Offences Act, 2012 and Criminal Law
(Amendment) Act, 2013 has started showing disastrous consequences as young
love is branded as an offence. To insulate young boys and girls from being
punished as criminals, it is submitted that our laws needs to be suitably amended
and on the lines of Canada, peer group exceptions and close in age exceptions
should be inserted in our laws as well.
9. It is also submitted that the recommendation of the Law Commission in its Forty
Second Report (made way back in 1971) should be accepted and bonafide mistake
of fact as to the age of the person in the cases of statutory rape should be made a
defence in India.
10. It is not suggested that the ignorance of law should be made a defence even in the
cases of statutory rape as it is feared that it will open a Pandora box but it is
submitted that the provisions of law (especially when a new law is made or a
major amendment is brought), which concerns the common man should be
popularized by making them a part of school curriculum and by launching mass
media campaigns and legal awareness campaigns. Audio-visual methods should
be utilized for these purposes so that the awareness campaigns remain interesting.
11. It is submitted that section 377 need not be repealed completely rather a proviso
should be added to exclude the act of consensual sex between two adults in
private from within its purview.
12. The attempts should be made so that alternative sexuality becomes acceptable to
the society at large. Mass media, awareness campaigns and education reforms can
play a very powerful role in bringing change in the attitude of the society towards
homosexuals, bisexuals and transgenders.

********
 121

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