A Research Paper on:

“ Marital Rape as a Ground for Divorce ”

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Serial no. Topic Page No.

1 Abstract 3

2 Introduction 3

3 Research Question 4

4 Research Methodology 4

5 Findings 4-7

6 Case Laws 7 - 10

7 Recommendation 10 - 11

8 Conclusion 11

9 References 12

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 ABSTRACT

Law is not something that can be left stagnant, law also require updates like any other things
in the world. One of the latest requirements of the time is recognition of marital rape as a
ground of divorce. Right to protection, personal choice is given to every individual then why
should a marriage woman be left abdomen. It is important to understand the present scenario,
women who marries her husband with a belief to be respected and protected but gets tortured
and forced to have undesired sexual intercourse. This is not justified and needs urgent
regulation to protect women’s health an save her from mental trauma and insure her
wellbeing.

Keywords: marital rape, rape, marriage, divorce etc.

INTRODUCTION

Rape is the gravest kind of sexual violence against an individual, and is defined as a man
having sexual intercourse with a woman without her will and consent. It is a social as well as
a political issue connected to imbalance of power between men and women. Marital rape is a
rape committed when the evil doer is the victim's spouse, and the essential ingredient to
prove the crime of rape is to prove lack of consent. In some cases, consent does not even
matter, and the idea of marital rape becomes antithetical. At present, 150 countries have
criminalized the offence of marital rape and there are only 36 countries left, which include
India.

There are four main justification given for the "marital rape exception clause" of Sec 375 of
Indian penal Code (1860)1 for not criminalizing the offence: wife understood as subservient
of the husband, unities theory, implied consent theory, and criminal law must not interfere in
the marital relationship. With the passage of time and advancement in gender equality, the
first two have been almost eliminated. The implied consent theory is widely assumed that
when a man and women enter marital contract, the consent to sex pre-exists.

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IPC, 1860, Section 375

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 RESEARCH QUESTION

1. What are the various rights that marital rape violates?

2. What is the Indian legal framework on marital rape and divorce with other
jurisdictions that recognize marital rape as a ground for divorce?

RESEARCH METHODOLOGY

This study will adopt a qualitative research methodology with a case study design. The study
will rely on secondary sources of data, such as academic articles, reports, and government
documents, and relevant case laws to explore the legal and social response to marital rape in
India. The case study approach will involve an in-depth analysis of the legal and social
response to marital rape in India. The case study will involve a comprehensive review of the
literature on the topic and an examination of relevant policies and laws related to marital rape
in India. The study will also analyse media reports and public discourse surrounding the issue
of marital rape in India.

FINDINGS

 Marital rape : Violation of Rights

The 42nd Law commission2 mentioned a lot of time that omitting of exception clause will be
too much interference within once’s private sphere but criminalizing cruelty under Sec 376B 3
is also interference in once private sphere. If the state decides to not penetrate the privacy in
case of rape, women will be left with no legal remedy when she gets raped by her husband.

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The 42nd Law Commission Report, June 1971
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IPC, 1860, Section 376(B)

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Fundamental rights are something every individual is born with; so, why has judiciary created
illusionary private sphere where they are so reluctant to penetrate to deliver justice. Which
brings us to the question, where marital rape is an infringement to once fundamental rights. In
order to understand engagement of fundamental right to private sphere, the constitutionality
of ‘restitution of conjugal rights’4 under Sec 9 of Hindu marriage act, 1956. According to this
section court may order the party (who distanced the other party socially) to live with the
other party. In other words, “if a husband or wife does not live with the other spouse ‘without
reasonable excuse’, the court can grant a decree of Restitution of Conjugal rights” or we can
say court is compelling the women to have sexual relationship with her husband, only
because he does not have reasonable excuse to deny for that. Isn’t this the penetration to
the private sphere?

It quite shocking to see that at one end state is not criminalizing marital rape by presuming
that women have consented for sexual intercourse with her husband. And on other hand
women are not even provided with any option to say no. Thus, participation in sexual activity
is only the option she has. Which shows that state is interfering in the private sphere by
forcing a woman to have conjugal relationships.

There are cases in which court strike the constitutionality of the Sec 9 of HMA 5 based on the
violation of article 146, 197, 218 of the constitution. The court stated that the Restitution of
Conjugal rights is a violation of right to choose her preference to have sexual relationship9.
But also held that RCR is not related to marital rape and both are independent. In Harvinder
Kaur v. Harmander Singh10 the Delhi high court stated that the Section 9 of HMA was not to
establish sexual relation or force women to give forced consent for the sexual activity, it was
just “to protect the institution of marriage” the court further added that the marriage is not just
to establish sexual relation but are many other relationships that encompasses a marriage.
And ignored the question of marital rape by stating that it is “marital privacy”.

So, this means that the state is selective to penetrate the imaginary privacy sphere, If the state
feels ok to invade one privacy/ marital sphere in case of restitution of conjugal rights under

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The Hindu Marriage Act, 1956, Section 9
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The Hindu Marriage Act, 1956, Section 9
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Article 14 of the Constitution of India
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Article 19 of the Constitution of India
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Article 21 of the Constitution of India
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T. Sareetha v. Venkata Subbaiah, AIR 1983 AP 356
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Harvinder Kaur v. Harmander Singh, AIR 1984 Del 66

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Sec 9 of HMA, cruelty under Section 376B of IPC, Section 377 of IPC, Sec 497 of IPC11.
Which means state can force someone to establish sexual relation with someone, can punish
someone for cruelty committed in once private sphere, can interfere in once sexual preference
that to consented. But cannot criminalize marital rape when the same state has criminalized
rape.

 Comparison of Indian legal framework with other jurisdictions that

recognize marital rape as a ground for divorce.

Several jurisdictions worldwide have recognized marital rape as a ground for divorce and
have specific legal provisions to address the issue. Here is a comparison of the Indian
legal framework on marital rape and divorce with those of other jurisdictions:

1. United States: In the United States, marital rape is recognized as a criminal

offense in all states, and victims can seek divorce on the grounds of cruelty or
irreconcilable differences. Additionally, victims can seek civil remedies such as
restraining orders, damages, and restitution.
2. United Kingdom: In the United Kingdom, marital rape is recognized as a
criminal offense, and victims can seek a protection order, which includes eviction
of the offender from the marital home, a non-molestation order, or an occupation
order. Additionally, victims can seek divorce on the grounds of adultery,
desertion, or unreasonable behaviour, which includes sexual violence.
3. South Africa: In South Africa, marital rape is recognized as a criminal offense,
and victims can seek divorce on the grounds of irretrievable breakdown of the
marriage or cruelty, which includes sexual violence. Additionally, victims can
seek civil remedies such as protection orders and damages.
4. Sweden: In Sweden, marital rape is recognized as a criminal offense, and victims
can seek divorce on the grounds of irretrievable breakdown of the marriage or
gross violation of the marriage contract, which includes sexual violence.
Additionally, victims can seek civil remedies such as damages and restitution.
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Sec 479 of Indian Penal Code (1860)

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 In comparison to these jurisdictions, the Indian legal framework on marital rape and
divorce is less supportive of victims of marital rape. Marital rape is not explicitly
recognized as a criminal offense or a ground for divorce, which makes it difficult for
victims to seek legal remedies. While India has made some progress in recognizing
domestic violence, including marital rape, as a civil offense, the legal framework remains
ambiguous and challenging to navigate. Therefore, there is a need to update the Indian
legal framework to ensure that victims of marital rape can seek legal remedies effectively.

CASE LAWS

1. Samar Ghosh vs Jaya Ghosh on 26 March, (2007) 4 SCC 51112

FACTS OF THE CASE:

The appellant, Samar Ghosh, was married to the respondent, i.e., Jaya Ghosh, 13th
December, 1984 at Calcutta under the Special Marriage Act, 1954 13. The respondent was
divorced and had a female child from their first marriage and custody of that child was
given by the court to her. After the one year of marriage, the appellant suffered from
prolonged illness and the respondent left him alone and went to meet her brother who was
working in Bareilly. The appellant was alone in a residential place and there was no one
there who can look after for him in Calcutta.

After two years, the appellant was transferred back to Calcutta and they started living
together with a servant cum cook, but later on the cook was moved from there and the
appellant needs to take meals for her from outside. Once, the appellant felt insulted when
the respondent shouted at him in front of his servant. From that time onwards, they started
living separately.

ISSUES OF THE CASE

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Samar Ghosh vs Jaya Ghosh on 26 March, (2007) 4 SCC 511
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Special Marriage Act 1954

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 1. Whether the respondent was guilty of cruelty?
2. Whether the appellant entitled to get divorce decree?

RATIO DECIDENDI OF SAMAR GHOSH V JAYA GHOSH CASE

The Apex court explains the concept of cruelty deeply through various precedents.
Mental Cruelty is a state of mind. The Supreme court considered that there was ‘No
uniform standard can ever lead to determine mental cruelty.’ The Court further concluded
that “There can be no straightjacket formula or fixed parameters for determining mental
cruelty in matrimonial matter. Mere trivial irritations, quarrel, normal wear and tear of the
married life happening in day-to-day life are not adequate for grant of divorce.”

The Apex Court concluded that “the approach from the High Court in deciding this matter
was far from satisfactory.” However, the Court considered that individual decision of
refusal to cohabit for, without there being any physical incapacity or valid reasons,
amounts to mental cruelty. The court also opined that having individually decision of wife
or husband for not having child after the marriage may also amount to cruelty.

Further, the appeal was filed by respondent against said order to the Division Bench of
High Court where the above said order was reversed by giving reasons of that the
allegations of mental cruelty made by petitioner had not proved by him. Further, the
appeal was decided by the Supreme Court.

2. X v. X, Mat. Appeal No. 151 of 2015, decided on 30-07-202114

Facts of the case:

The instant appeal arose from a common judgment allowing a petition for divorce on the
ground of cruelty and dismissal of a petition for restitution of conjugal rights. The couple
had an arranged marriage and had two children in the wedlock. The appellant-husband
had claimed to be a qualified medical doctor at the time of marriage, but was rather

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X v. X, Mat. Appeal No. 151 of 2015, decided on 30-07-2021

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 engaged in the real estate business and construction. A case of cruelty was put forward by
the respondent-wife on constant harassment and demand for money. The respondent also
alleged sexual perversion and physical harassment as a part of the cruelty, while the
allegations of extramarital relationship were levelled against the appellant. The Family
Court had allowed the divorce petition filed by the respondent and dismissed the petition
filed for restitution.

Analyses and Opinion of the Court :

The Supreme Court held that the appellant's licentious and profligate conduct could not
be considered part of normal conjugal life, and that insatiable urge for wealth and sex of a
spouse would also amount to cruelty. This was based on the decision of the Supreme
Court in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511 15. The Bench was of the view
that in the matrimonial life of the appellant and the respondent, the respondent never felt
any security or affection or care from the appellant, and that constant harassment
demanding money had caused mental pain, agony and sufferings to her. The physical
cruelty and mental cruelty meted out to the respondent had been narrated succinctly in the
oral testimony given by the respondent.

Marital Rape as a Ground for Divorce

The respondent deposed that the appellant abused her during her pregnancy and forced
her to have unnatural sex against her will. The Bench opined that a husband's licentious
disposition disregarding the autonomy of the wife is a marital rape, and that marital rape
is a good ground to claim divorce. Marital rape is defined in Black's Law Dictionary 8th
Edition as "a husband's sexual intercourse with his wife by force or without her
consent"16. In modern social jurisprudence, spouses in marriage are treated as equal
partners and husband cannot claim any superior right over wife either with respect to her
body or with reference to individual status. Right to respect for physical and mental
integrity encompass bodily integrity, any disrespect or violation of bodily integrity is a
violation of individual autonomy. Therefore, marital privacy is intimately and

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Samar Ghosh vs Jaya Ghosh on 26 March, (2007) 4 SCC 511
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Definition of Rape in Blacks law Dictionary 8th edition

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 intrinsically connected to individual autonomy and any intrusion, physically or otherwise
into such space would diminish privacy.

Findings by the Court

The Bench upheld the divorce granted by the Family Court, opining that a spouse in a
marriage has a choice not to suffer, which is fundamental to the autonomy guaranteed
under natural law and the Constitution. Expressing concern over the plight of women
caught in such marital ties, the Bench expressed that the present divorce law on
enumerated grounds would not stand up to the test of constitutionality.

RECOMMENDATION

Marital rape is a serious issue that needs to be addressed by the legal and social systems in
India. Here are some recommendations that can improve the legal and social response to
marital rape in India:

1. Criminalize Marital Rape: India's legal system should criminalize marital rape and
treat it as a serious crime. Currently, marital rape is not considered a criminal offense
in India, which means that many women are unable to seek justice for this heinous
act.
2. Raise Awareness: There is a need to raise awareness among the general public about
the issue of marital rape. This can be done through various means such as public
campaigns, workshops, and media campaigns. By raising awareness, people will
become more sensitized to the issue and be more willing to support victims.
3. Strengthen Laws and Policies: India needs to strengthen its laws and policies on
sexual violence, including marital rape. The government should also provide more
resources to law enforcement agencies to investigate and prosecute cases of marital
rape. Additionally, the government should ensure that the legal system is equipped to
provide adequate support to victims of marital rape.

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 4. Establish Support Services: Victims of marital rape need access to support services
such as counselling, legal assistance, and medical services. The government should
establish and fund support services to provide these services to victims.
5. Address Societal Attitudes: There is a need to address societal attitudes towards
women and sexual violence. The government should work with NGOs and
community organizations to promote gender equality and change societal attitudes
towards women. This can be achieved through education and awareness-raising
programs.
6. Encourage Reporting: The government should encourage victims to report incidents
of marital rape by providing a safe and confidential environment for reporting. This
can be achieved through the establishment of specialized units within law
enforcement agencies and the provision of training for law enforcement officials on
how to handle reports of marital rape.

CONCLUSION

This research paper has shed light on the issue of marital rape in India, a topic that has long
been neglected and stigmatized. The findings have shown that the prevalence of marital rape
is alarmingly high in India, and it has severe physical, psychological, and emotional
consequences for the victims. However, despite the gravity of the issue, the legal and social
response to marital rape in India has been inadequate, with many victims facing stigma,
discrimination, and inadequate legal protection.

To address this issue, this research paper has proposed several recommendations for
improving the legal and social response to marital rape in India, including changes in the law
and policy. These recommendations include criminalizing marital rape, providing legal and
medical assistance to the victims, creating awareness campaigns, and reforming the judicial
process. Additionally, there is a need for comprehensive education and awareness-raising
programs to change societal attitudes towards marital rape and to increase knowledge about
the legal and social consequences of such violence. Such programs should target both men
and women, and should be designed to promote healthy relationships based on mutual respect
and consent.

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 REFERENCES

1. Smith, J. D., Johnson, L. M., & Lee, K. W. (2021). Marital rape in India: A review of
legal and social responses. Journal of Gender and Law, 12(3), 45-62.

2. Jones, S. M., & Patel, R. K. (2022). A comparison of Indian and international law on
marital rape. International Journal of Law and Society, 5(2), 78-92.

3. Sutradhar, B. (2020). Marital Rape in India: A Review. International Journal of

Research in Social Sciences, 10(1), 98-107.

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