BEHIND THE CLOSED DOOR

Atul Kumar Dubey

School of Law, Galgotias University

ABSTRACT

The most heinous of all sexual offences which not only subjects women to thoroughly detestable
physical consequences from which there can be no retaliation in kind – Rape. The most invidious
and largely unnoticed form of sexual violence is Marital Rape. It is the most common and
repugnant form of masochism in Indian society which is hidden behind the iron curtain of
marriage. It has yet not touched the conscience of the community. It is not a rape of the body but
also rape of love, commitment and various vows taken during marriage. Because of the
perception of family as being beyond public domain husbands are given ‘legal exemption’ and
are tolerated by a society ostensibly wedded to the rule of law. The primary intent of my paper is
to find out as to whether to sex without the consent of wife should be considered as rape. The
paper seeks to cover the legal position of marital rape in India as well as in other countries. This
paper reviews the reform and strategy required to respond properly to marital rape. The paper
shall meticulously scan the existing possible steps both legal and social which would culminate
in criminalizing marital rape and changing the attitude about women in marriage and will attempt
to resist arguments obscuring and condoning domestic sexual violence.

Keywords – Consent, Marital Rape, Constitutional Right

I. INTRODUCTION

Marriage is considered as sacred institution in Indian society. It is the very foundation of stable
family in this civilized society. Under the iron like blanket of civilized it carries with various
crimes like – sexual assault, dowry death and the most heinous and legally of them acceptable is
“marital rape.” Marital rape refers to unwanted sexual intercourse by a man with his wife by
using force, threat of force, or when she is unable to give her consent. It is a ‘license to commit
rape’; the purity of marriage is getting lost. The term marital rape has been used for a number of
years to describe rape which takes place in a marriage. Sociologists have pointed out that
violence can occur in marriage as a means of trying to resolve problems; sexual assault in
marriage also occurs. This ‘license to rape’ exempted husbands from prosecution for raping their
wives, a colonial value reiterated in 17th century England by Sir Matthew Hale in his treatise
that ‘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 up in this kind unto her
husband which she cannot retract.’1Though marital rape is the most common and repugnant form
of masochism in Indian society, it is hidden behind the iron curtain of marriage. The hesitation in
recognizing marital rape is premised on the chauvinistic understanding that a woman is the
property of her husband and rape laws have in essence been recognized to safeguard the
masculine pride in the exclusive possession of a sexual object.2 The customs and laws governing
marital relations have asserted the husbands unquestioned right to sexual intercourse with his
wife and her duty to submit. This ideology of consent to sex as expressed by Lord Hale was also
harboured by Justice Blackstone stating that:

‘The being of a woman is suspended during the marriage, or at

least is incorporated and consolidated into that of her husband,
under whose wing, protection and cover she performs everything’3

It is submitted that the court observed in L.H.V. Prasad v. Station House Officer, Alwal Police
Station4 that a woman cannot be relegated to status of a chattel. In this case, the issue related to
an allegation of misrepresenting caste before marriage. When the case came to the High Court, it
quashed the complaint holding that the charge would not stand unless the girl was treated as
property. In appeal, the Supreme Court confirmed this decision of the High Court. This
momentous decision underscored the fact that women cannot be relegated to the status of chattel
and that their status is not inferior to that of men. It is, therefore, submitted that a woman has an
identity different from that of her husband. This is even mandated by international instruments

1
Sir Matthew Hale, HISTORY OF THE PLEAS OF THE CROWN, Vol. I, 629 (1736); See also S. FREDMAN
WOMEN AND THE LAW, 55-57 (1997)
2
Shivika Choudhary, Ankeeta Gupta, The Politics Of ‘Consent’ In Marital Rape: An Evaluation Of The
Chauvinistic And Patriarchal Values Echoing In The Criminal Amendment Act 2013, INTERNATIONAL
JOURNAL OF RESEARCH AND ANALYSIS, Vol. 2(2)
3
Id.
4
1999 Cr L J 3928 (AP)
recognizing right to dignity of the woman by virtue of being a human being. Further, a married
woman has the same right to control her own body as does an unmarried woman.5

II. VOLUNTARY CONSENT AND DIGNITY

A woman enjoys equal right to exercise autonomy over her body is in consonance with the right
to live with dignity and equality, a value cherished in most Constitutions and International
Instruments.6 A woman is, therefore, endowed with the right to provide consent or disagree with
anything that infringes the privacy of her body.7 The observation of the Apex Court in Vishakha
v. State of Rajasthan8 has recognised their right to dignity and consent by the virtue of being
human beings. The court opined,

“Gender equality includes protection from sexual harassment and

right to work with dignity, which is a universally recognised basic
human right…….the contents of International Conventions and
norms are significant for the purpose of interpretation of the
guarantee of gender equality, right to work with human dignity in
Articles 14, 15 19(1) (g) and 21 of the Constitution and the
safeguards against sexual harassment implicit therein.”9

The court in Apparel Export Promotion Council v. A.K. Chopra10 made the following
observations,

“There is no gainsaying that each incident of sexual harassment,

at the place of work, results in violation of the Fundamental Right
to Gender Equality and the Right to Life and Liberty the two most
precious Fundamental Rights guaranteed by the Constitution of
India.”

In the 2007 Report, the Committee on the Elimination of Discrimination against Women
(CEDAW) has recommended that the country should:

5
People v. Liberta, 64 N.Y. 2nd 152, 485 N.Y.S. 2nd 207 (1984
6
V. Barshis, The Question of Marital Rape, 6 WOMEN’S STUDIES INTERNATIONAL FORUM 383, 383-393
(1983
7
supra note 2 at 2
8
AIR 1997 SC 3011
9
Id. ¶ 14
10
AIR 1999 SC 625
 “[W]iden the definition of rape in its Penal Code to reflect the
realities of sexual abuse experienced by women and to remove the
exception of marital rape from the definition of rape…..”11

The provision allowing marital rape in essence permits child marriages expressly prohibited by
the child marriages act as has been observed by the Delhi High Court12 in a recent judgment as
extracted below,

“It is rather shocking to note the specific relaxation is given to a

husband who rapes his wife, when she happens to be between 15-
16 years. This provision in the Indian Penal Code, 1860 is a
specific illustration of legislative endorsement and sanction to
child marriages”

It is submitted that no excuses or societal dictates can justify sexual abuse of a woman at the
hands of the person most trusted by her, the husband. While sec. 375 of Indian Penal Code [IPC]
contains seven descriptions regarding consent, wherein consent of a woman below eighteen
years doesn’t pardon rape, contrary to this, exception 2 to sec. 375 absolves a man of sexual
intercourse with his wife of fifteen years age. Firstly, this grants a license to the husband to have
sexual intercourse with his wife of fifteen years without her consent. Law Commission in its 84th
Report read consent as, “A mere act of helpless resignation in the face of inevitable compulsion,
acquiescence, non-resistance and passive giving in when volitional faculty is either clouded by
fear or vitiated duress cannot be deemed to be consent.”13 It is often stated that a woman who is
raped undergoes two crises, the rape and the subsequent trial. While the first seriously moves her
dignity, curbs her individual, disturbs her sense of security and may often run her physically, the
second is no less potent of mixture, in as much as it not only forces her to relive through the
traumatic experience, but also does so in the grudge of publicity in a totally alien atmosphere,
with the whole apparatus and paraphernalia of the criminal justice system focused upon her.”14
But in case of marital rape there is a rape and women has to live with her rapist who is her
husband. The commission went ahead and recommended to add following words to be added in

11
See also, Article 14, Declaration on Elimination of Violence against Women 1993; Articles 11(1), 22, 24 & 29,
Convention on Elimination of all forms of Discrimination against Women.
12
Court on its Own Motion (Lajja Devi) v. State, 2013 CriLJ 3458
13
84th Report of the Law Commission of India, Rape and Allied Offences: Some Questions of Substantive Law,
Procedure and Evidence, 1980 ¶ 2.14 at 7
14
Id.
Sec 375 of IPC, "or of physical or mental agony to herself or to her nearest blood relations,
including her husband if she is married.”15 Supreme Court had made it clear that a definition
would assist in minimizing secondary victimization of the complainant/survivor in proceedings.
The judgment of the European Commission of Human Rights in C.R. v. United Kingdom, which
endorsed the conclusion that a rapist remains a rapist regardless of his relationship with the
victim. Importantly, it 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. The basic premise for this assumption lies in the
fiction that the wife is considered to have given her irrevocable consent to sexual intercourse to
the husband at the time of the marriage and hence the husband cannot be held guilty of rape,
which he may commit upon his wife.16

III. LAWS ON FOREIGN LAND

Today there are many countries that have either enacted marital rape laws, repealed marital rape
exceptions or have laws that do not distinguish between marital rape and ordinary rape. These
countries include: Albania, Algeria, Australia, Belgium, Canada, China, Denmark, France,
Germany, Hong Kong, Ireland, Italy, Japan, Mauritania, New Zealand, Norway, the Philippines,
Scotland, South Africa, Sweden, Taiwan, Tunisia, the United Kingdom, the United States, and
recently, Indonesia.17 Turkey criminalized marital rape in 2005, Mauritius and Thailand did so in
2007. The criminalization of marital rape in these countries both in Asia and around the world
indicates that marital rape is now recognized as a violation of human rights. In 2006, it was
estimated that marital rape is an offence punished under the criminal law in at least 100 countries
and India is not one of them. Even though marital rape is prevalent in India, it is hidden behind
the sacrosanct curtains of marriage.18 In Canada, the provisions in the Criminal Code, which
denied criminal liability for marital rape, were repealed in 1983.19 In U.S.A., as of July 5, 1993,

15
Id. ¶ 2.17
16
Dr. Bhavish Gupta & Dr. Meenu Gupta, Marital Rape: - Current Legal Framework in India and the Need for
Change, GALGOTIAS JOURNAL OF LEGAL STUDIES, GJLS Vol. 1, No. 1 (2013)
17
Dr. Bhavish Gupta & Dr. Meenu Gupta, Marital Rape: - Current Legal Framework in India and the Need for
Change, GALGOTIAS JOURNAL OF LEGAL STUDIES, GJLS Vol. 1, No. 1 (2013)
18
Id.
19
Report of the Committee on the Amendments To Criminal Law, (2013) available at
http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf
marital rape became a crime in all 50 states under at least one section of the sexual offense
codes. In Canada, the provisions in the Criminal Code, which denied criminal liability for marital
rape, were repealed in 1983. It is now a crime in Canada for a husband to rape his wife. South
Africa criminalised marital rape in 1993, reversing the common law principle that a Husband
could not be found guilty of raping his wife.20 In 1995, at the United Nations Women’s
Conference in Beijing, China delegates unanimously passed a resolution stating that a wife has a
right to refuse sexual demands by her husband.

IV. LAW IN INDIA

The final version of section 375 of the Indian Penal Code, which emerged after deliberations in
the Select Committee, is a crystallized form of Clause 359 of the Macaulay’s Draft Penal Code.
Section 37521 the provision of rape in the Indian Penal Code (IPC), has echoing very archaic
sentiments, mentioned as its exception clause- “Sexual intercourse by man with his own wife, the
wife not being under 15 years of age, is not rape.” As per the Indian Penal Code, the instances
wherein the husband can be criminally prosecuted for an offence of marital rape are as under:

1. When the wife is between 12 – 15 years of age, offence punishable with imprisonment upto 2
years or fine, or both; or when the wife is below 12 years of age, offence punishable with

20
Anjali Shrivastava, Devanshu Jain, Ayan Hazra et al, Marital Rape: A Legalised Sin, INDIAN JOURNAL OF
APPLIED SCIENCES, Vol. 2(12) (2013)
21
The section 375 of the Indian Penal Code (45 of 1860) reads: —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 own wife, the wife not being under fifteen years of age, is not
rape.
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 fine.22

3. Rape of a judicially separated wife, offence punishable with imprisonment upto 2 years and
fine;23

4. Rape of wife of above 15 years in age is not punishable.24

The Domestic Violence Act, 2005 does not brand marital rape as a crime, rather it limits it to an
act of domestic violence on the basis of which the woman is permitted to seek judicial
separation, but cannot have her partner arrested because it is a civil wrong. The law is indeed a
step towards recognizing sexual abuse by partners, however this is not enough. Rape in any form
is a crime against society; accordingly, it is desirable that the perpetrator be punished instead of
reducing the crime to a civil wrong. The 42nd Law commission Report (1972) suggested that
marital rape should be criminalised however actions were not taken place as the 84threport
(1980) was not in favour of the criminalisation.25 Supreme Court in most powerful words said,

“Rape is thus not only a crime against the person of a woman

(victim), it is a crime against the entire society. It destroys the
entire psychology of a woman and pushed her into deep emotional
crises. It is only by her sheer will power that she rehabilitates
herself in the society which, on coming to know of the rape, looks
down upon her in derision and contempt. Rape is, therefore, the
most hated crime. It is a crime against basic human rights and is
also violative of the victim's most cherished of the Fundamental
Rights, namely, the Right to Life contained in Article 21.”26

V. ROAD AHED

When a woman complains of rape, it is not the physical part of the woman which is directly the
focus of attention. It is the offence and the offence against the bodily integrity of the woman as a

22
Indian Penal Code (45 of 1860), Section 376(1).
23
Indian Penal Code (45 of 1860), Exception to Section 375
24
The Protection of Women from Domestic Violence Act, 2005, Section 3 Explanation 1 (ii).
25
supra note 17 at 6
26
Bodhisattwa Gautam v. Subhra Chakraborty, AIR 1996 SC 922
person which is the offence in question. The criterion that ‘a stigma attaches to the rape victim in
Indian society.’ is a counter-productive basis of appraisal. Marital rape is a serious problem that
millions of women worldwide have to suffer and face such abuse on a day-to-day basis. Women
who are raped by their husbands are likely to be raped many times. They experience not only
vaginal rape, but also oral and anal rape. Though we have advanced in every possible field,
marital rape is not considered as an offence in India. Despite amendments, law commissions and
new legislations, one of the most humiliating and debilitating acts is not an offence in India. A
marital or other relationship between the perpetrator and victim is not a valid defence against the
crimes of rape or sexual violation. The exception for marital rape is removed. The relationship
between the accused and the complainant is not relevant to the inquiry into whether the
complainant consented to the sexual activity. In fact, rape in any of its form should not be
tolerated- not even if you have signed a marriage certificate with your rapist or share your bed
with him and never because you call your rapist your HUSBAND.