ASSIGNMENT ON

MARITAL RAPE AS A GROUND FOR DIVORCE

FAMILY LAW

UNITEDWORLD SCHOOL OF LAW

SUBMITTED TO

SUBMITTED BY
AISHWARYA
ROLL NO:5
SEMESTER-4
SECTION-B
 DECLARATION

The text reported in the project is the outcome of my own efforts and no part of this project assignment has
been copied in any unauthorized, manner and no part of it has been incorporated without due
acknowledgment.

Aishwarya Monu
Table of Content
 ABSTRACT

In spite of the increased recognition of various Penal laws in India, the Marital Rape has generated in the
past two to three decades. There is a need for a special law on marital rape in India, which should also be
accepted with international norms on this particular issue. Women have been given with the right to fight for
protection, but her own husband, who she married with full belief, tries to hurt and torture her by having a
forceful sex without her consent which ultimately spoils her health and well-being. There is no justification
or applicability of the notion of all the marital exemption in the current times. This paper talks about if the
marital rape can be a ground for divorce. This paper also discusses about the identification of “marital rape
as a ground for divorce” comparative study between two different countries have been analysed.
 INTRODUCTION

Ever since the formation of U.N.O. in 1945 after the end of Second World War, the issue of Human rights
protection is being discussed constantly in various international human rights documents & conventions. In
simple terms Human rights are those very basic, multifaceted inalienable rights which mainly evolved out of
the notions of self-respect. They are inherent in all humans since their birth and are indiscriminately
available to everyone irrespective of their religion, caste, color, sex, gender, race etc.

However, “Rape” or Sexual Assault is considered as one of the gravest violations of human rights of women
and is punishable by our criminal laws. But still somehow the issue of marital rape on both married girl child
as well as upon adult married women needs to be addressed properly both from the substantive and
procedural criminal perspective.

The Marital Rape has been increased in few years. The major elements of marital rape include the mental
agony of being raped, the trauma of being victimised by her own husband and helplessness of being quiet
and unforgettable scars of these incidents. People in India are free from crimes committed in the streets but
the women have not been safe from crimes inside their own home which gets unnoticed by anyone. Indiana
University Press, 1990 had reported that, “more than 1 in every 7 women who have been married has been
raped in their marriage”.

According to United Nation population fund more than two-thirds of Marital women aged between 15-50 in
India have been subjected to forced sex, beaten, tortured along with a demand for dowry. Many countries
have enacted marital rape laws, repealed marital rape exceptions. Recently Indonesia and Turkey have
criminalized the marital rape in 2005 and Mauritius and Thailand in 2007.

Criminalization of marital rape denotes that it is now recognized as a violation of human rights. It has been
estimated that, marital rape is a punishable offence in at least 100 countries where India is not one of them.
Plenty of legislations and enactments regarding dowry, cruelty, domestic violence female infanticide has
been regarded as violence against the women. Criminalizing the Marital rape was the suggestion made by
the Verma Committee, which had suggested amendments to India’s sexual assault laws.

The Protection of women from Domestic Violence Act, 2005 has created a good remedy for various victims
but the Act has failed to criminalize the Marital Rape. The law had ignored a huge violation of fundamental
right of freedom for any married women, the right to her body or to protect her from any abuse. Various
legal framework and different perceptions on the Marital Rape have been analysed further. The main aim of
the study is to analyse “can marital rape be a ground for divorce”.
 RESEARCH METHODOLOGY

Objective of the research

Hypothesis
1. Marital rape is not considered to be an offence under the Indian Penal code.
2. Marital rape is considered to be an offence under the Indian Penal code which can be a ground for
divorce under family law?

Research Question

1. What is the current legal position of marital rape in India?

Coverage Scope
MARITAL RAPE: GENERAL OVERVIEW

DEFINITION

The term ‘marital rape’ (also referred to as ‘spousal rape’) refers to unwanted intercourse by a man on his
wife obtained by force, threat of force or physical violence or when she is unable to give consent. The words
‘unwanted intercourse’ refers to all sorts of penetration (whether anal, vaginal or oral) perpetrated against
her will or without her consent.

There are principally three kinds of marital rapes:

Force-only Rapes- The husband uses only enough force to coerce the wife to intercourse.

Battering Rapes- Women are raped and simultaneously battered by their husbands- beaten, slapped, pushed,
shoved etc. In battering rapes, women experience both physical and sexual violence.

Sadistic/ Obsessive Rape- These involve torture and/or other perverse sexual acts. Pornography is frequently
involved in sadistic forms of rape.

HISTORICAL BACKGROUND

Historically, a man could not and to this day, cannot be criminally prosecuted for raping his wife under the
Indian legislation. This inability to prosecute a husband, criminally, is based on the common law definition
of rape itself. The foundation of this exemption can be traced back to the statement made by Sir Matthew
Hale, C.J., in 17th century England. Hale wrote:

“The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual
matrimonial consent and contract, the wife hath given herself in kind unto the husband, which she cannot
retract.” [4]

This established the notion that once married, a woman does not have the right to refuse sex with her
husband. This allows husbands rights of sexual access over their wives in direct contravention of the
principles of human rights and provides husbands with a “licence to rape” their wives. [5]

CURRENT SITUATION

According to the Ministry of Home Affairs, a crime is committed against a woman in India every three
minutes. The National Crime Records Bureau reports 1,85,312 crimes committed against women in 2007 –
75,930 of which were considered to be of domestic violence (Cruelty by husband or relatives). [6] Torture
and molestation were the most widespread felonies. The actual figure could be ten times higher as many
cases go unreported with victims unwilling to speak out, fearing the shame and stigma associated with being
a divorced or separated woman in traditional Indian society.

While attitudes towards women in educated, urbanized areas have improved, those of rural India remain
unenlightened. Both men and women see violence as a part of gender relations. The UNFPA report found
that some 70 percent of Indian women believed that wife-beating was justified under certain circumstance,
such as refusal to have sex or for not preparing food on time. [7] Approximations have quoted that every 6
hours; a young married woman is burnt or beaten to death, or driven to suicide from emotional abuse by her
husband.

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

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

LEGAL POSITION IN INDIA

THE PERSONAL LAW ASPECT

Marriage has always been thought of as a social institution, and thus there has always been a social
interest in protecting and preserving it, it cannot be dissolved like any ordinary contract. There are
specific theories that govern the grounds on which divorce may be sought, and unless the ground is
appropriated under these theories and expressly enumerated under the various Personal Laws
governing the Mohammedans, Hindus, Christians and Parsis, the Court cannot pass a decree for
marriage. The grounds on which the divorce is granted are generally categorized into the following
theories [8] :
 1. OFFENCE/GUILT OR FAULT THEORY

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

2. CONSENT THEORY

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

3. BREAKDOWN THEORY

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

Under the current set of guidelines provided under the Personal Laws for divorce, marital rape is not
included in any of the Personal Laws. The grounds for divorce include cruelty [9] however marital rape
doesn’t come under the ambit of cruelty- and surprisingly so.

CRITICISM

Over the years, the Courts have held, in respective cases, that:

– “…cruelty is lack of such conjugal kindness which inflicts pain of such a decree and duration that it
adversely affects the health, mental or bodily, of the spouse on whom it is inflicted.”

Bhagat v. Mrs. V D. Bhagat [10]

- “the cruelty alleged should be of such type as to convince the Court that the relations between the parties
had deteriorated to such an extent that it had become impossible to live together without mental agony,
torture and distress.”

Ashwini Kumar Sehgal v. Swatantra Sehgal [11]

- “a single act of physical violence may also amount to cruelty.”

Marry v. Raghavan [12]
Despite cruelty being defined, several times, in such broad sense and the grounds for divorce being
demarcated into such broad areas, marital rape fails to feature in any of the these theories with respect to the
Personal Laws in India- neither of Mohammedan Law, Hindu Law, Christian Law or Parsi Law- includes
marital rape into the grounds for seeking divorce.

Though several independent researches by various organizations has established marital rape to be a brutal
form of cruelty, the Indian Courts are yet to pass a decision on accepting marital rape as a form of cruelty
and as a ground for divorce.

Also, if a woman can apply for divorce when her husband has been guilty of sodomy [13] to escape a
marriage of sexual abnormality, then why is she barred from escaping a marriage of sexual abhorrence?

And finally, if the Court feels that men and women should not be forced to live together in turmoil, then, on
what ground does it keep from a suffering woman, her right to escape a malignant, deleterious marriage in
which she is sexually objectified, tortured and raped?

THE CONSTITUTIONAL LAW AND CRIMINAL LAW ASPECT

The IPC defines rape under sec. 375 as:

A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a
woman under circumstances falling under any of the six following descriptions:-

First: Against her will.

Secondly: Without her consent.

Thirdly: With her consent, when her consent has been obtained by putting her or any person in whom she is
interested in fear of death or of hurt.

Fourthly: With her consent, when the man knows that he is not her husband, and that her consent is given
because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly: With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally or through another of any stupefying or unwholesome
substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly: With or without her consent, when she is under sixteen years of age.

Explanation: – Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception: -Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not
rape].

Now if we look into the above definition and the amendments that followed, we come across the following
facts:

Sec. 375 only two groups of married women are covered by the rape legislation- those being under 15 years
of age and those who are separated from their husbands.

While the rape of a girl below 12 years of age may be punished with rigorous imprisonment for a period of
10 years or more, the rape of a girl under 15 years of age carries a lesser sentence if the rapist is married to
the victim. [14]

Under Section 376-A added in 1983 in the IPC, 1860, rape of judicially separated wife was criminalized. It
was an amendment based on the recommendations of the Joint Committee on the Indian Penal Code
(Amendment) Bill, 1972 and the Law Commission of India. [15]

Thus, a husband can now be indicted and imprisoned up to 2 years, if firstly, there is a sexual intercourse
with his wife, secondly, without her consent and thirdly, she is living separately from him, whether under
decree or custom or any usage.

Otherwise, a man is not liable for any sexual act that he forcefully performs on his wife (except sodomy),
unless they are living separately under a decree of separation –despite the fact that the wife may be subjected
to much sexual humiliation.

Thus, rape in India is a grievous offence, but it is an offence that is recognized only outside the boundaries
of marriage.

However, The Law Commission of India in its 42nd report put forward the necessity of excluding marital
rape from the ambit of Sec. 375. In their words, “Naturally the prosecutions for this offence are very rare.
We think it would be desirable to take this offence altogether out of the ambit of Sec. 375 and not to call it
rape even in a technical sense. The punishment for the offence may also be provided in a separate
section.” [16]

The subsequent Law Commission [17] however disagreed with the restructuring suggested by the former.
They felt that such arrangement would “produce uncertainty and distortion” and hence Sec. 375 should
“retain its present logical and coherent structure”. [18]

With regard to age, however, they were of the opinion that it should be increased to 18 years. In their words,
“the minimum age of marriage now laid down by law (after 1978) is eighteen years in the case of females
and the relevant clause of Sec. 375 should reflect this changed attitude. Since marriage with a girl below
eighteen years s prohibited (though this is not void as a matter of personal law) sexual intercourse with a girl
below 18 years should also be prohibited.” [19]

But as has been stated by the researcher in the previous section the latest report of the Law
Commission [20] has preferred to adhere to its earlier opinion of non-recognition of “rape within the bonds
of marriage” as such a provision “may amount to excessive interference with the marital relationship.”

CRITICISM

In India marital rape exists de facto but not de jure. The following criticisms can be drawn based upon the
exception clause under sec. 375 of IPC.

In Bodhisattwa Gautam v. Subhra Chakraborty [21] the Supreme Court said that “rape is a crime against
basic human rights and a violation of the victim’s most cherished of fundamental rights, namely, the right to
life enshrined in Article 21 of the Constitution. Yet it negates this very pronouncement by not recognizing
marital rape. [22]

The judicial interpretation has expanded the scope of Article 21 of the Constitution of India by leaps and
bounds and “right to live with human dignity” [23] is thus, within the ambit of this article. Marital rape
clearly violates the right to live with dignity of a woman and to that effect, it is seen that the exception
provided under Section 375 of the Indian Penal Code, 1860 is in violation of Article 21 of the Constitution.

Article 14 of the Constitution guarantees the Fundamental Right that “the State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India”. Article 14 therefore
protects a person from State discrimination. But the exception under Section 375 of the Indian Penal Code,
1860 discriminates with a wife when it comes to protection from rape. The exception provided under
Section 375 of the Indian Penal Code, 1860 is not a reasonable classification, and thus, violates the
protection guaranteed under Article 14 of the Constitution.

According to the Indian Penal Code, 1860, it is rape if there is a non-consensual intercourse with a wife who
is aged between 12 and 15 years. However, the punishment may either be a fine or an imprisonment for a
maximum term of 2 years or both, which is quite less in comparison to the punishment provided for rape
outside the marriage.
The Protection of Women from Domestic Violence Act, 2005

In India, the Protection of Women from Domestic Violence Act 2005 (passed August 2005; entered into
force October 2006) criminalizes marital rape as a form of domestic violence, and therefore attracts a lesser
jail term than non-marital rape. This is the only form of penalizing marital rape in India, and it is a civil
remedy and not a criminal action.

COMPARATIVE STUDY BETWEEN INDIA AND USA

The United Nation population fund states that more than 2/3rd of the married women in India, who are aged
between 15 to 50, have been beaten, raped or forced to provide sex with him. In the year 2005 nearly more
than 6500 cases were recorded where women were murdered by their husbands or by their husband‟s
family.

MARITAL RAPE IN THE UNITED STATES

In the year 2006 United Nations Secretary General analysed in-depth study on all forms of violence against
women which is the marital rape. It stated that in at least 53 countries rape by husband is not considered to
be an offence. In the United States, Marital rape has become much more criminalized. In many countries
the marital rape laws is ambiguous and they are not clear that the person can be prosecuted for a marital rape
or not. Where in the absence of the law it may be possible to bring prosecution for acts of forced sexual
intercourse. In countries where the laws on rape exclude husband where the countries have inherited the
Penal Code which states that the sexual intercourse by a man with his own wife is not rape.

MARITAL RAPE IN INDIA

If we look into the judicial aspects of India it clearly states that “sexual intercourse by a man with his own
wife, the wife not being under 15 years of age, is not rape” under section 375 of the Indian Penal Code.
Section 376 of the Indian Penal Code provides punishment for rape. According to this section, the rapist
should be punished with imprisonment of either description for a term which shall not be less than 7 years
but which may extend to life or for a term extending up to 10 years and shall also be liable to find or both.
In Saretha V. T. Venkata Subbaih case, it was held that, rights and duties in a marriage, is like a creation and
dissolution and not the term of private contract between two individuals. The right to privacy is not lost by
marital Association. Hence there is no punishment for marital rape and the remedy lies with her.

STATE’S OBLIGATION IS TO PROMOTE RIGHTS OF WOMEN CITIZENS

The role of the state in a democratic egalitarian society is to protect and promote the rights of its citizens
regardless of their sex or social status. The International instruments, the national laws as well as the
constitutional laws bind the state to promote the rights of women as citizens regardless of the fact that they
are married or not. Marital rape exemptions are unconstitutional. Yet, the state is evading its obligations to
promote rights of women citizens on the flimsy ground of `saving the institution of marriage’ for decades. A
woman as a citizen is legally under no obligation to pay the price through risking her health or life to save
her family.

The non-interventionist approach followed by the state in the marital rape related issues perpetuates biases
and discrimination against married women. The legislature as well as the judiciary, entrusted with the duty
to protect the fundamental rights is dominated by men. Guided by the patriarchal ideology, they are blatantly
violating the basic constitutional norms. The fundamental rights guaranteed by the constitution are not
strictly scrutinized neither these are correctly applied.

Also, the state has failed to recognize the fact that the purpose of enacting a law is not only to convict
criminals but also to serve as a deterrent. It is an educational tool to determine moral and social wrong. The
law establishes as to what constitute as socially acceptable behaviour.

MARITAL RAPE IMPLIES BETRAYAL OF TRUST

A marriage, generally, is a bond of trust and affection. However, in the feudal patriarchal context, due to
financial and otherwise dependency of women on men, the relationship entails coercive potential. In marital
rape, a woman is continuously raped by person by whom she believes or supposes loves her. Marital rape is
destructive because it threatens the elementary roots of a relationship where a woman may end up feeling
humiliated, perplexed and deceived. She shares her intimate history, her home, her children, her secrets, her
fears and her life with the perpetrator. Marital rape, therefore, involves a betrayal of this trust. It questions
the very essence of human relationship. In this situation, a man can no longer be trusted as a protector and a
woman cannot turn to his perpetrator to seek comfort or gain reassurance. Home, remains no longer safe for
a woman.

IS MARITAL RAPE A CRIME?

Rape of any individual, married or unmarried, is a violation of individual fundamental right to dignity and
bodily integrity. Legally, marital rape may be construed as a crime because it fulfills all the criteria required
to establish it as an offense. It involves injury, hurt, harm and humiliation of a woman with the intent or
mens rea to do so.

Yet, the laws condones sexual abuse in a domestic relationship only if it is life threatening or grievously
hurtful. This is because existing rape law is a male construct that serve males interest and therefore fails to
recognize marital rape as a criminal wrong. Laws are designed not to preserve dignity of women nor are
these applied to save lives of women being abused, but to preserve the sanctity of the marital institution.
Women therefore end up paying heavy price to protect the institution of marriage. Legal discourse is
embedded in the larger patriarchal discourse from which it derives basic notions and stereotypical
assumptions about gender roles. These biases distort the spirit of the law in the processes of application and
enforcement.

THE BIASES IN LEGISLATING AND IMPLEMENTING THE LAW

The Law Commission in its 84th report31 reasoned that forced sex with judicially separated wife is
punishable seems because she is no longer the "wife" (de facto) and hence the husband has no right to
forcibly enforce his conjugal rights.

Such a narrow approach again reinforced Victorian legacy rather than upholding democratic and egalitarian
concept of marriage. Further, the Law Commission when in its 172 report 32 suggested that enactment of
any law relating to marital rape will leads to excessive interference within marriage, ignored this provision
of restitution of conjugal rights where state is intervening in private relationship between two people to
control their role in a bedroom. The state is also intervening through controlling the Lesbian, Gay and
Transgender relationships and other provisions in criminal and civil laws. Therefore, criminalizing marital
rape is no excessive intervention by the state.
CONSENT WITHIN THE MARITAL RELATIONSHIP

In India, the sacramental nature of marriage as a lifelong bond eliminates and overlooks the notion of
consent. A wife is treated as a sex slave and more importantly this form of slavery is officially and legally
sanctioned and legitimized with no escape routes made available to the woman. It also endorses a man’s
right over his wife despite of the fact that she may finds sex as an unwelcome, frightening, painful or violent
encounter. This assertion of conjugality is based on the concept of diminished responsibility which assumes
a woman as a asexual being with no agency or autonomy to consent to sexual acts
 CONCLUSION

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

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

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

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

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