THE NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

PROJECT

SUBJECT: FAMILY LAW

TOPIC: MARITAL RAPE: THE FEMINIST DISCOURSES OF FAMLIY LAW

SUBMITTED TO: SUBMITTED BY:

PROF. DEBASHREE SARKAR TANISHKA SAXENA

(2019BALLB131)
Contents
Certificate...................................................................................................................................3

Acknowledgement......................................................................................................................4

Introduction................................................................................................................................5

Statement of Problem.................................................................................................................5

Objectives...................................................................................................................................6

Research Question......................................................................................................................6

Research Methodology...............................................................................................................6

Scheme of the Study...................................................................................................................6

Understanding Marital Rape......................................................................................................7

Case Laws Shaping the Perspective...........................................................................................9

Laws on Marital Rape in Other Countries...............................................................................13

United States of America.....................................................................................................13

England and Wales...............................................................................................................14

Australia...............................................................................................................................17

Suggestions..............................................................................................................................19

Conclusion................................................................................................................................20

Bibliography.............................................................................................................................22
CERTIFICATE
This to certify that the project titled “Marital Rape: The Feminist Discourses of Family Law”
has been prepared and submitted by Tanishka Saxena, who is currently pursuing B.A.LL.B.
(Hons) from The National Law Institute University, Bhopal. This is in fulfilment of the
Family Law course. It is also certified that this is her original work.

Date:

Signature of the Student:

Signature of the Supervisor:

ACKNOWLEDGEMENT
I wish to express my sincere gratitude to Prof. Debashree Sarkar for providing me with the
opportunity to research, study comprehensively and pen this project. Without his aid and
guidance, the completion of this analysis would have been a very difficult task.

I also wish to thank the library administration and staff for helping me find the correct
resources required to compose this project, for resources are useful only when used
appropriately.

I also find it of utmost necessity to acknowledge the constant support and encouragement I
received from my parents and friends. They are the true source of my motivation and will to
thrive.
INTRODUCTION
Marital or spousal rape is the act of sexual intercourse with one’s spouse without their
consent. The lack of consent is the essential element and need not involve physical violence.
Marital rape is considered a form of domestic violence and sexual abuse. Although,
historically, sexual intercourse within marriage was regarded as a right of spouses, engaging
in the act without the spouse's consent is now widely classified as rape by many societies
around the world, repudiated by international conventions, and increasingly criminalized. It is
a fine line between understanding consensual intercourse and rape in a marriage which is why
it is very difficult to be able to determine the same.

Considering how much law has developed over the years, you would like to believe that
marital rape would be a criminal offense in India. Section 375 of the Indian Penal Code
defines rape and recent amendments have brought substantial changes in the rape laws of the
country but did not include anything concerning marital rape.

The concept of marital rape in India is the epitome of what we call an ‘implied consent’.
Marriage between a man and a woman in India implies that both have consented to sexual
intercourse and it cannot be otherwise. The Indian Penal Code, 1860 also communicates the
same. Section 375 defines the offence of rape with the help of six descriptions. One of the
exception to this offence was “Sexual intercourse or sexual acts by a man with his own wife,
the wife not being under fifteen years of age, is not rape”

To exploit the concept of implied consent in such a manner reflects very poorly on the law
making mechanisms of the country. And, it is high time that this changed and India takes note
from those countries that have criminalized this gruesome offence.

STATEMENT OF PROBLEM
This project focuses on analysing the case laws relating to martial rape and understanding the
development thereof. Further, it seeks to understand the feminist perspective of the concept
and what the stand of many feminists is on how to further this tricky concept of implied
consent in this case. Lastly, it seeks to explore what could be developed under the Family
laws of the country on order to aid those seeking justice for the same.
OBJECTIVES
 To observe the development of laws relating to marital rape
 To analyse the feminist perspective of marital rape
 To understand how the same can be incorporated in Family Law

RESEARCH QUESTION
What is the current legal framework with regard to marital rape in the country? What is the
take of feminists on this issue? What changes could be implemented to provide justice to
those who face this evil?

RESEARCH METHODOLOGY
The method of research used by the researcher is doctrinal.

SCHEME OF THE STUDY

1. Introduction
2. Understanding Marital Rape
3. Case Laws and the change in perspective
4. Feminist Discourse
5. Laws on Marital Rape in other countries
6. Suggestions
7. Conclusion
8. Bibliography
UNDERSTANDING MARITAL RAPE
The Indian Penal Code defines Rape as a sexual intercourse committed by a man with a non-
consenting woman and further elaborates the six categories which constitute for a sexual
intercourse to be a rape.1 This definition comes with an exception which immunizes the
husband in the relationship from the acts of rape in a marriage by stating as an exception to
the previous conditions that sexual intercourse with one’s wife is not rape if she is over
fifteen years of age. The aforementioned six conditions which constitute a rape include sexual
intercourse with a woman against her will, without her consent, with the consent but the same
has been obtained through coercion, with the consent but at the time of consenting the woman
is in not state of understanding what she is consenting to or is unable to comprehend the
consequences because of intoxication, unsoundness of mind and lastly, with or without her
consent when the girl is under sixteen years of age.2

The exception which rules out the possibility of rape in a marriage disregards all of their
conditions and proceeds to demean the meaning of consent of a woman in a marriage. This
exception implies that a woman in a marriage is not free to consent in this matter and has to
comply with the husband’s wishes arbitrarily. It has been noticed that unwilling sexual
intercourse in a marriage has been criminalized in almost every country of the world and
India is one of the only thirty-six countries where the same has not been criminalized yet.

Marital rape is construed to have an implied consent. This means that the woman in a
marriage is believed to have consented to sexual intercourse as and when her spouse wishes
and that cannot be refuted at any point. For the Supreme Court of India, protecting the
institution of marriage is more important than protecting the dignity of a woman. Justice
Dipak Misra, former Chief Justice of India, was of the opinion that there is no necessity to
bring a law for marital rape. One of the reasons that he gave for the same was that this law
would create anarchy in the villages in India.3

It is understandable that recognizing marital rape is particularly complex. A marriage comes

with conjugal rights which do include sexual intercourse with one’s spouse. However,
subjecting a victim to this grave offence only because defining the same is complicated is
1
§375 Indian Penal Code, 1860
2
Ibid.
3
https://timesofindia.indiatimes.com/city/bengaluru/no-need-to-make-marital-rape-an-offence-ex-cji-dipak-
misra/articleshow/68785604.cms
sheer injustice. There have been many legislations wherein the women in India were given
rights in order to protect themselves against atrocities committed by their husbands, what
these legislations failed to recognize is that marital rape is also one of such atrocities. A
woman who is being raped behind the veil of the institution of marriage is likely to be raped
not once, but multiple times. The lack of action taken in these cases discourages the cases that
are reported. There is no accurate data for marital rape and how many women go through this
atrocity on a regular basis. By ignoring this and treating marriage as the licence for this grave
offence, the Indian judicial system has given power to men to rape their spouses without any
consequence making this one of the most despicable examples of the prevailing patriarchy.

One of the statistics provided by the United States show that one out of every seven or eight
women is subjected to marital rape or an attempt of the same.4 Another estimate shows that
about 10-14% of women experience rape in a marriage. 5Marital rape should be viewed as
one of the worst forms of rape as being betrayed by someone you know, trust and love has a
grave impact on a person’s mental health. It completely shatters one’s beliefs and ability to
trust anyone else.

4
Box, S., Power, Crime and Mystification, (London Tavistock Publications, 1983), p.122.
5
Diana. E. H. Russell, Rape in Marriage, Indiana University Press, Bloomington, 1990.
CASE LAWS SHAPING THE PERSPECTIVE
Even after progressing in every possible field, marital rape has been ruled out of being an
offence in India. There have been plenty of amendments and commissions set up to amend
rape laws and laws concerning the safety of the women. This means that there were plenty of
chances to introduce some punishment concerning marital rape.

Beginning with the infamous case of Phulmoni Dasi6 where the eight year old girl died of
excessive bleeding due to sexual intercourse by her husband. The husband in this case was in
his mid-thirties at the time. While the husband as convicted in this case, it was not for rape
but for causing grievous hurt by doing a rash and negligent act which is dangerous to life. He
was given one year of imprisonment. In this case, it was said, “this branch of law has no
connection with this case is the law of rape” and “the law, it is true, is exceedingly jealous of
any interference in matters marital, and very unwilling to trespass inside the chamber where
husband and wife live together, and never does so except in cases of absolute necessity.”7
This is the most a common argument that is put up whenever the discussion of marital rape
opens up.

The Protection of Women from Domestic Violence Act, 20058 provides a definition of
domestic violence which, among other things, includes the act of sexual abuse and reads as,
“any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the
dignity of a woman.”9 The definition nowhere defines what acts constitute as sexual abuse.
However, parallel to this, exception 2 of Section 375 of IPC absolves the husband from any
liability of rape if the wife is over fifteen years of age. Both these laws seem to be in
contradiction of each other as conduct of a sexual nature that abuses, humiliates, degrades or
violates the dignity of a woman is read as rape in accordance with the definition of rape given
in IPC.10

In 2017, Independent Thought, an organization for child rights filed a PIL,11 questioning the
constitutionality of Exception 2 of Section 375. They argued that this exception discriminates
between an unmarried and a married girl by recognizing rape with the former and not the

6
Queen Empress vs. Haree Mythee, [(1891) ILR 18 Cal. 49].
7
Ibid.
8
Hereinafter DV Act, 2005.
9
§3, The Protection of Women from Domestic Violence Act, 2005.
10
Supra note 1
11
Independent Thought v, Union of India, (2013) 382 SCC (2017) (India).
latter. Consent to marriage cannot be treated as consent for sexual intercourse. More so, an
adult woman understands it better when she is being sexually assaulted and more and should
also be protected in that case. To summarise what Independent Thought argued in their PIL
that there should be no discrimination between married and unmarried women and also over
the age limit that has been placed. In the judgement, the Supreme Court criminalized
unwilling sexual contact with a wife between fifteen and eighteen years of age. This led to an
influx of writs challenging the constitutionality of Exception 2 as a whole.

In July 2019, the Delhi High Court rejected a plea for making rape a ground for divorce by
saying that the Judiciary cannot direct the parliament to make laws on marital rape as it is
supposed to be a domain of the legislature and not the judiciary.12 The petitioner in this case
sought relief by way of guidelines to be followed while filing an FIR in case of marital rape.
They asked the High Court to issue proper guidelines to register such a case in the existing
laws and procedure. The advocate for the petitioner also added that since marital rape is not a
crime in India, the police would not file an FIR against the husband and rather expected the
petitioner to uphold the sacredness of the marriage.

The offence of marital rape has not been mentioned a ground for divorce in the Hindu
Marriage Act, 1955, Muslim Personal Law [Shariat] Application Act, 1937 and Special
Marriage Act, 1954. This means that it cannot be used as a ground for divorce and cruelty
against the husband.

In addition to this, the advocate presented a survey by the National Family Health Survey 13
which showed that nine out of every hundred men in India think that it is okay to use violence
on their wives if she refuses to have sexual intercourse with him. In the same survey, it was
reported that fifteen out of hundred men think that the wife is not justified in saying no the
husband and five out of every hundred women have reported that they have been forced by
their husbands into sexual intercourse when they were not willing for the same.

When we look at the figures from the survey, we understand how important it is to put into
place, the laws that make marital rape a punishable offence. By not doing so, a community of
women are being robbed of justice for a heinous crime against their dignity which, by the
Supreme Court itself has been called a deathless shame and the gravest crime against human

12
https://www.thehindu.com/news/cities/Delhi/judiciary-cant-direct-govt-to-frame-laws-on-marital-rape-hc/
article28337275.ece
13
NFHS 4 report
dignity.14 Treating marriage as an implied consent to rob a woman off her dignity is not
justifiable.

India is the signatory of the United Nations Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW) which has viewed such discrimination as against
the principles of equality. More so, this commission in its 51st session passed a resolution
titled ‘The elimination of violence against women’15 which suggested that marital rape be
criminalized.

The right to live with dignity, enshrined in the Constitution of India,16 is the most
fundamental of all that this article encompasses. The Supreme Court has observed in a
plethora of cases that rape abuses the right to life and the right to live with human dignity of
the survivor or victim of rape.

In the case of Bodhisattwa Gautam v. Subhra Chakraborty17 the court observed rape to be
against the principles of Article 21 of the Indian Constitution. It also provided with the
guidelines for awarding compensation to the victims for the same.

In another landmark case of The Chairman, Railway Board v. Chandrima Das18, the court
held that rape violates the fundamental right of an individual and not just an ordinary right.
Rape is considered to be a crime against the society as a whole and not just the particular
woman in question. It violates the most important fundamental right of a person19 and is thus,
not excusable in any circumstance.

In State of Maharashtra v. Madhkar Narayan,20 the Supreme Court observed that the women
were entitled to their sexual privacy and the same cannot be violated by any man under any
circumstance.

In the landmark judgement of Vishaka v. State of Rajasthan21, the court held that the women
were to have a right to privacy in their work environment as well.

14
Bodhisattwa Gautam v. Subhra Chakraborty AIR 1996 SC 922.
15
Resolution No. 1995/85 of 8-3-1995
16
Art. 21, The Constitution of India, 1950.
17
Supra note 14
18
MANU/SC/0046/2000
19
Supra note 16
20
AIR 1991 SC 207
21
AIR 1997 SC 3011.
It is a logical conclusion that if a woman is entitled to privacy of her body at her workplace
and otherwise, she is entitled to the same in a marriage as well. This means that a non-
consensual intercourse in a marriage would amount to the violation of the aforementioned
principles. As far as the principle of right to life is concerned, the cases of Subhra
Chakroborty and Chandrima Das provide ample reason to treat the exception 2 of Section
375 as unconstitutional by virtue of being violative of the fundamental right to live with
dignity. As we are aware that the entire legal system of our country is based on these rights,
violating the same should be inexcusable and it is unacceptable that a crime against society
ceases to be a crime only because the woman is married and an implied consent is assumed in
the case of marital rape.

In the case of Sree Kumar v. Pearly Kaur22, the Kerala High Court observed that since the
spouse is not living independently from her husband by virtue of a declaration of separation
and in this case, the possibility of non-consensual intercourse by her husband was
disregarded. In this case, the wife went to live with the husband for merely two days due to
the settlement of separation while the procedure for the same was going on and the husband
raped the wife in the meantime. The court did not hold the husband liable for the same even
though he had done so.

A highly debated section under the Hindu Marriage Act allows the husband to legally
demand sexual intercourse from his wife23 which portrays how little the consent of the wife
means in a marriage. The fact that most marriages in India are arranged in nature, the woman
has no consent over any part of the marriage and is taken to have impliedly consented to
sexual intercourse.

The one silver lining came with the DV Act, 2005 which gave recognition to marital rape in
the form of domestic violence, if not a crime in itself. Under this section, if a woman has
been subjected to marital rape, she can seek judicial separation from the husband, although
this does not protect her from the crime entirely as our judicial system only offers a civil
remedy in this case.

The Indian judiciary has been blinded by the veil of marriage that has been put over this
crime and continues to protect the sacrament of marriage over the dignity of woman.

22
1999 (2) ALT Cri 77
23
§9, Hindu Marriage Act, 1955.
LAWS ON MARITAL RAPE IN OTHER COUNTRIES
As mentioned before, India is one of the only thirty-six countries to not have criminalized the
offence of marital rape.24 It shares this with countries like Pakistan, Syria, Lebanon, Kuwait,
Afghanistan, etc. Apart from this, there are over hundred countries that have been successful
in protecting the dignity of their women. All of these countries penalize the offenders in one
way or another. They had either enacted marital rape laws or repealed the exceptions to rape
which resulted in there not being any difference between marital and ordinary rape. With
over a hundred countries criminalizing marital rape under their law, it can be safely assumed
that the same is a violation of human rights.

United States of America

The initial definition of rape in the USA read as ‘a male who has sexual intercourse with a
female not his wife is guilty of rape.’25 This very clearly excludes the possibility of marital
rape as the definition in itself has made an exception to the same. The reforms in the marital
rape laws in the US began in the 1970s with the criminalization of marital rape. The earlier
laws of the 1970s often required the husband and wife to no longer be living together for
marital rape charges to be brought. The case in the United States that first challenged this
cohabitation clause was Oregon v. Rideout in 1978.26 Although the husband was acquitted of
raping his wife, it spurred the movement towards reform. By 1993 marital rape was a crime
in all 50 states. Still, in the 1990s, most states continued to differentiate between the way
marital rape and non-marital rape was viewed and treated. The laws have continued to change
and evolve, with most states reforming their laws in the 21st century. But there are still states,
like South Carolina, where marital and non-marital rape are treated quite differently under the
law.

In the 1990s, most states differentiated between the way marital rape and non-marital rape
was treated. These differences were visible through shorter penalties, taking into account
whether or not violence was used, and allowing for shorter reporting periods.27 (). The laws
have continued to change and evolve, with most states reforming their legislation in the 21st
century, in order to bring marital rape laws in line with non-marital rape, but even today there
remain differences in some states. With the removal, in 2005,28 of the requirement of a higher
24
Marital Rape in India: 36 countries where marital rape is not a crime, India Today, Mar. 12, 2016.
25
Chapter 109a, United States Code.
26
Finkelhor, David; Yllo, Kersti (1985). License to Rape: Sexual Abuse of Wives. New York, NY: The Free
Press. p. 172.
27
Marital Rape, Bergen, 1996; Russell, 1990
28
"Tennessee General Assembly Legislation". Retrieved 22 August 2015.
level of violence from the law of Tennessee, which now allows for marital rape in Tennessee
to be treated like any other type of rape, South Carolina remains the only US state with a law
requiring excessive force/violence (the force or violence used or threatened must be of a
"high and aggravated nature").29

In most states the criminalization has occurred by the removal of the exemptions from the
general rape law by legislation, or by courts striking down such exemptions as
unconstitutional.30 Some states have created a distinct crime of spousal rape. California, for
example, has separate criminal offenses for rape (Article 261) and for spousal rape (Article
262).

England and Wales

Although the issue of marital rape was highlighted by feminists in the 19th century, and was
also deplored by thinkers such as John Stuart Mill and Bertrand Russell (see above section
'Feminist critique in the 19th century'), it was not until the 1970s that this issue was raised at
a political level. The late 1970s also saw the enactment of Sexual Offences (Amendment) Act
of 1976, which provided the first statutory definition of rape (prior to this rape was defined
by the common law). The Criminal Law Revision Committee in their 1984 Report on Sexual
Offences rejected the idea that the offense of rape should be extended to marital relations;
writing the following:31

"The majority of us ... believe that rape cannot be considered in the abstract as merely 'sexual
intercourse without consent'. The circumstances of rape may be peculiarly grave. This feature
is not present in the case of a husband and wife cohabiting with each other when an act of
sexual intercourse occurs without the wife's consent. They may well have had sexual
intercourse regularly before the act in question and, because a sexual relationship may
involve a degree of compromise, she may sometimes have agreed only with some reluctance
to such intercourse. Should he go further and force her to have sexual intercourse without her
consent, this may evidence a failure of the marital relationship. But it is far from being the
'unique' and 'grave' offence described earlier. Where the husband goes so far as to cause
injury, there are available a number of offences against the person with which he may be
charged, but the gravamen of the husband's conduct is the injury he has caused not the sexual
intercourse he has forced."
29
"Code of Laws - Title 16 - Chapter 3 - Offenses Against The Person".
30
People v. Liberta 64 N.Y.2d 152, 474 N.E.2d 567, 485 N.Y.S.2d 207 (1984)
31
Celia Wells, University of Bristol "Lacey, Wells and Quick Reconstructing Criminal Law". Cambridge
University Press.
The Committee also expressed more general views on domestic violence arguing that
"Violence occurs in some marriages but the wives do not always wish the marital tie to be
severed" and reiterated the point that domestic incidents without physical injury would
generally be outside the scope of the law: "Some of us consider that the criminal law should
keep out of marital relationships between cohabiting partners—especially the marriage bed—
except where injury arises, when there are other offences which can be charged."32

Five years later, in Scotland, the High Court of Justiciary took a different view, abolishing
marital immunity, in S. v. H.M. Advocate, 1989. The same happened in England and Wales
in 1991, in R v R (see below). Very soon after this, in Australia, at the end of 1991, in R v L,
the High Court of Australia ruled the same, ruling that if the common law exemption had
ever been part of the Australian law, it no longer was (by that time most Australian states and
territories had already abolished their exemptions by statutory law).

The marital rape exemption was first referred to in 1736 in Matthew Hale's History of the
Pleas of the Crown (see above). It was abolished in England and Wales in 1991 by the
Appellate Committee of the House of Lords, in the case of R v R,33 which was the first
occasion where the marital rights exemption had been appealed as far as the House of Lords,
and it followed the trio of cases since 1988 where the marital rights exemption was held to
exist. The leading judgment, unanimously approved, was given by Lord Keith of Kinkel. He
stated that the contortions being performed in the lower courts in order to avoid applying the
marital rights exemption were indicative of the absurdity of the rule, and held, agreeing with
earlier judgments in Scotland and in the Court of Appeal in R v R, 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. R's
appeal was accordingly dismissed, and he was convicted of the rape of his wife.

The first attempted prosecution of a husband for the rape of his wife was R v Clarke (1949).34
Rather than try to argue directly against Hale's logic, the court held that consent in this
instance had been revoked by an order of the court for non-cohabitation. It was the first of a
number of cases in which the courts found reasons not to apply the exemption, notably R v
O’Brien (1974)35 (the obtaining of decree nisi), R v Steele (1976)36 (an undertaking by the

32
Ibid.
33
[1991] UKHL 12
34
R v Clarke [1949] 2 All ER 448
35
R v O’Brien [1974] 3 All ER 663
36
R v Steele (1976) 65 Cr.App.R. 22
husband to the court not to molest the wife) and R v Roberts (1986)37 (the existence of a
formal separation agreement).

There are at least four recorded instances of a husband successfully relying on the exemption
in England and Wales. The first was R v Miller (1954),38 where it was held that the wife had
not legally revoked her consent despite having presented a divorce petition. R v Kowalski
(1988)[148] was followed by R v Sharples (1990),39 and R v J (1991), a judgment made after
the first instance decision of the Crown Court in R v R but before the decision of the House
of Lords that was to abolish the exemption. In Miller, Kowalski and R v J the husbands were
instead convicted of assault. The R v Kowalski case involved, among other acts, an instance
of non-consensual oral sex. For this, the husband was convicted of indecent assault, as the
court ruled that his wife's "implied consent" by virtue of marriage extended only to vaginal
intercourse, not to other acts such as fellatio.40 (At that time the offense of 'rape' dealt only
with vaginal intercourse.) In R v Sharples (1990) it was alleged that the husband had raped
his wife in 1989. Despite the fact that the wife had obtained a family protection order before
the alleged rape, the judge refused to accept that rape could legally occur, concluding that the
family protection order had not removed the wife's implied consent, ruling that: "it cannot be
inferred that by obtaining the order in these terms the wife had withdrawn her consent to
sexual intercourse".
A new definition of the offense of 'rape' was created in 1994 by the section 142 of the
Criminal Justice and Public Order Act 1994, providing a broader definition that included anal
sex; and an even broader definition was created by the Sexual Offences Act 2003, including
oral sex. The law on rape does not—and did not ever since the removal of the marital
exemption in 1991—provide for any different punishment based on the relation between
parties. However, in 1993, in R v W 1993 14 Cr App R (S) 256, the court ruled:41

"It should not be thought a different and lower scale automatically attaches to the rape of a
wife by her husband. All will depend upon the circumstances of the case. Where the parties
are cohabiting and the husband insisted upon intercourse against his wife's will but without

37
R v Roberts [1986] Crim LR 188
38
[1954] 2 QB 282
39
86 Cr. App. R. 339
40
"Domestic Violence". Archived from the original on 7 September 2014. Retrieved 22 August 2015
41
"S1 Rape:Sexual offences: Sentencing Manual: Legal Guidance: The Crown Prosecution Service".
violence or threats this may reduce sentence. Where the conduct is gross and involves threats
or violence the relationship will be of little significance."

Australia
In Australia, the removal of the immunity for marital rape occurred in all states and
territories, both by statute and judicial decision, between late 1970s and early 1990s.
Previously, the exemption of marital rape was based on the English common law offense of
rape, being generally understood as "carnal knowledge", outside of marriage, of a female
against her will. The common law definition of rape continued to apply in some states, while
others codified the definition, which in each case included a marital exemption. In
Queensland, for example, the provision read: "Any person who has carnal knowledge of a
woman or girl, not his wife, without her consent, or with her consent, if the consent is
obtained by force, or by means of threats or intimidation of any kind, or by fear of bodily
harm, or by means of false and fraudulent representations as to the nature of the act, or, in the
case of a married woman, by personating her husband, is guilty of a crime, which is called
rape."42 Discussions of criminalization of marital rape were already taking place in
Queensland in the late 1970s,43 but it was not until 1989 that the exemption was removed.44

The first Australian state to deal with marital rape was South Australia, which in 1976
partially removed the exemption. Section 73 of the Criminal Law Consolidation Act
Amendment Act 1976 (SA) read: "No person shall, by reason only of the fact that he is
married to some other person, be presumed to have consented to sexual intercourse with that
other person".45 Nevertheless, the laws did not go as far as equating marital with non-marital
rape; the law required violence or other aggravating circumstances, in order for an act of
marital intercourse to be rape. The first Australian jurisdiction to completely remove the
marital exemption was New South Wales in 1981. Western Australia, Victoria, and ACT did
the same in 1985; and Tasmania in 1987. In 1991, in R v L, the High Court of Australia ruled
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."46 The case led to South
Australia changing its law in 1992.

42
"Reform of the Law of Rape" on 2014-01-27.
43
Ibid.
44
"Patterns of rape : a preliminary Queensland perspective," Aic.gov.au. (2016)
45
"An Act to amend the Criminal Law Consolidation Act, 1935-1975," Dspace.flinders.edu.au. (2016)
46
R v L [1991] HCA 48; 174 CLR, per Mason C.J., Deane and Toohey JJ.
It can be construed that in every other country, even if initially there were no conclusive laws
on marital rape, proper legislations were put into place within a period of time. England,
being a country from where most of Indian provisions have been borrowed, has also acted
upon what is right and came forth with proper laws to criminalize marital rape as at the end of
the day, any kind of non-consensual sexual intercourse is rape.
SUGGESTIONS
The very first course of action in this case would be to not discriminate marital rape from any
other kind of rape or sexual harassment. This would be the first step in giving married women
the same humane dignity as that of unmarried women. It is necessary to understand that the
concept of consent does not diminish because a woman chose to marry someone. Consent is
the most important right any person has for themselves. While it is understandable that it is
not that easy to draw the line of consent in a marriage, the criminalization of marital rape
cannot be put off just on the basis of convenience. Example should be taken from all the
countries that have reformed their laws to be inclusive of marital rape.

Marital rape in India exists de facto and not de jure. While in other countries either the
legislature has criminalized marital rape, or the judiciary has played an active role in
recognizing it as an offence, in India however, the judiciary seems to be operating at cross-
purposes.

One step that could be taken to protect married women form such acts is the broadening of
the a provision present in the DV Act, 2005, wherein the definition of domestic violence is
inclusive of any conduct of a sexual nature that abuses, humiliates, degrades or otherwise
violates the dignity of a woman. The reading of this comes off as vague as it does not
mention or refer to rape directly here, or anywhere else throughout the Act. By broadening
the definition under this act, the judiciary could interpret how to penalise the same under the
Indian Penal Code, 1860 as well.

Further, tribunals wherein such matters are dealt with more sensitivity should be set up in
order to make it safe for the woman to report these crimes. Most importantly, people
throughout should be educated about marital rape and consent of a woman after marriage. It
is necessary to do so as in India, the rights of a woman living in rural areas tend to diminish
even more when they get married. It is important to educate them about the violation of their
bodies in order to protect them from predators and to tell them that they are the only ones that
are in control of their bodies and no one else. This would help in understanding the actual
depth of the problem as people in rural areas are usually incapable of recognising when they
are being subjected to such a thing.
However, the first and foremost concern still remains to be the recognition of marital rape
under the definition of rape.

CONCLUSION
A marriage is a bond of trust, love and affection. Undoubtedly, sex is a normal commitment
of marriage but use of force or violence in sexual intercourse is against bodily integrity and
emotions of the concerned wife. De facto, the wife can bring a criminal case against her
husband for criminal assault or injury or matrimonial relief for forcible sex, but what is
needed is the incorporation of marital rape in our legal system. The wife must be honoured.
Laws bestowed an absolute immunity on the husband in respect of his wife, solely on the
basis of the marital relation which is totally against basic human rights. If a woman consents
to be married it does not mean that she consents to be raped by her husband. She has also her
entity and the line drawn between rape within marriage and rape outside marriage is out-
dated and has no relevance in present scenario.

While we consider marriage sacred in India, we also worship goddesses and celebrate them
with grandeur. This implies that in the Indian culture, women are just as sacred. Protecting
the sacrament of marriage isn’t as important as protecting the dignity of a human. Rape is a
most heinous crime committed on a woman. It is immaterial whether women are married or
unmarried. Rape is rape irrespective of the fact that who commits it either husband or
stranger. Marital rape also violates the human right of a married woman i.e. safety and
integrity.Government of India is reluctant in making marital rape a crime. If a woman who is
under 16 years of age and consensual intercourse is done with her it will be rape but if she is
married and husband forcefully committed sex with her, it will not be rape. Why marital rape
is not being covered under Indian penal code. This discrimination should be deleted.
Moreover, on one hand there are talks of empowering women and at the same time we are not
protecting the dignity and right to life of married women.

Rape is rape either committed by her husband or committed by third person. Marital rape
should be covered under anti-rape laws in India because she should be allowed to protect her
dignity. The study points out that married women are being raped frequently by their
husbands. While official data on marital rape is meagre, activists and lawmakers maintain
there is plethora of evidence to imply it is on the rise.
If a woman marries, it should not mean that she has lost her dignity against her husband. She
cannot be considered as a property of the husband. She should be empowered to say no, if she
is not willing to have sex with her husband. Husband should not be allowed to force his wife
to have sex with him. Rape should be considered only rape without any exception of marital
rape. Marriage should not be considered as a license of committing rape. Justice Verma
Committee recommended criminalizing marital rape as rape but this recommendation was not
considered.

So, Section 375 of Indian Penal Code should be amended in light of recommendations of
Justice Verma. Any type of excuse such as that it will be hard to prove marital rape or
criminalizing marital rape would destroy the institution of marriage, should not give right to
the husband to play with dignity and sentiments of his wife. When husband commits marital
rape, he also breaches his promise made by him at the time of marriage. Majority of the
Indian women mainly agree with the occasional domestic violence. This mentality is the
reason of violence against this much widespread violence. As soon India’s women achieve
consensus that sexual abuse is not acceptable, the lawmakers can follow the track and revise
India’s backward laws.

Succinctly, it can be said the dissimilarity between marital rape and non-marital rape should
be removed because marriage does not provide license for committing rape and the dignity of
women either married or unmarried is alike.
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