To: Members of the Rajya Sabha, Upper House of the Parliament of India

From: Gayatri Malhotra

Subject: Amendment to Criminalize Martial Rape in the Indian Penal Code in India
Date: March 8, 2018

Problem Statement:
Currently, the Indian Penal Code (IPC) does not criminalize marital rape, resulting in no legal
protection for women against their spousal abusers. Members of the Rajya Sabha must amend the IPC
to include criminal charges, protection, monetary relief, and imprisonment against the rapist. The
rejection of non-consent, spousal, sexual intercourse from the definition of rape in the IPC results in no
method to legally classify or report marital rape. Sexual abuse has reached epidemic proportions in
India, resulting in the suffering of thousands of Indian women and has become a violation of basic
human rights 1.

Background:
Domestic violence has reached staggering rates with a high prevalence of intimate partner
violence. According to the National Family Health Survey, 29% of women (ages 14-59) married at least
once had experienced spousal violence, and 62% of women experienced marital violence within the first
two years of marriage 2,3. In 2014, the United Nations Population Fund (UNPF) and the International
Center for Research on Women (ICRW) surveyed more than 9,200 men-- one-third of the men admitted
to having forced a sexual act on their wives, while 60% said they had acted violently against their wife at
some point in their lives 4. These statistics attest to the severity of the issue-- men have sexually
assaulted women with no legal repercussions or punishment.
India records a crime against a woman every 2 minutes, often resulting in India being referred to
as the rape capital of the world 5,6. In 2015, the National Crime Records Bureau reported at least 34,651
cases of rape 7. The victims ranged from children younger than six years old to women over 60. Over
90% of the victims who reported rape knew their alleged rapists 7. A study conducted by the Rice
Institute found that women are 40 times more likely to be sexually assaulted by their husband than a
stranger, indicating that women are not safe in their homes 8.
Since marital rape is not a crime, police do not file a case, resulting in grossly underestimated
national statistics. However, emergency rooms, non-governmental organizations (NGOs), and counseling
centers for women have been recording incidents of marital rape. In 2015, the NGO Sneha- the Center
for Vulnerable Women and Children, located in Dharavi, Mumbai, recorded 664 cases of women who
reported domestic violence and 159 women reported marital rape 9,3. Even though marital rape is
documented in hospitals, cases are not registered since it is excluded from the IPC’s definition of rape 9.
The dismissal of marital rape makes stories like Asha’s heartbreaking. For 24 years Asha had endured
episodes of violence-- of being slapped, beaten, sexually abused, verbally abused, and being abandoned.
She first filed a domestic violence case against her husband in 2007. Nine years later, in 2015, Asha was
in the emergency room of a public hospital with injuries that doctors noted as sexual assault. At the
police station, the assault was seen as “a matter between a husband and wife”, and no case was
registered 9. For women like Asha, being able to file a criminal case would not only give her justice but
protection from her rapist.

Recommendations:
Under Sections 375, 376, and 498A of the IPC, physical, mental, and sexual violence are
considered as criminal offenses for child brides, separated or divorced spouses, husbands or in-laws
performing cruel acts towards the wife, but are not considered criminal offenses for married couples. To

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include non-consent, sexual violence from a spouse in the definition of rape in the IPC, members of the
Rajya Sabha can amend the following sections:
For Section 375 of the IPC, Exception 2 states, “sexual intercourse by a man with his own wife,
the wife not being under 15 years of age, is not rape” 10. This exception only protects child brides and
does not protect women over the age of 15. Rape is a violation of human rights no matter the age of the
woman. This exemption should be removed, allowing marital rape to be a chargeable criminal offense
with rigorous imprisonment for the perpetrator.
For Section 376 of the IPC, rape is a criminal offense if a separated husband forces sexual
intercourse on his wife 10. Specifically, Section 376B states that the husband will be punished with
imprisonment no less than two years, but can extend to seven years, and shall also be liable to fine 10.
An amendment should be introduced titled Sub-Section 376A, stating that imprisonment and
punishment apply to women who have experienced sexual abuse from their spouse.
For Section 498A of the IPC, husbands and relatives can be charged with cruelty to the wife but
not on the grounds of sexual abuse. This section defines cruelty by husbands and in-laws only in the case
of mental and physical abuse. The husband is punished with imprisonment for a term which may extend
to three years and shall also be liable to fine 11. An amendment to Section 498A would be to include
sexual abuse and non-consent, sexual intercourse from a spouse as grounds for the same legal
consequences as mental and physical abuse.

Solution:
From the three options provided above, the members of the Rajya Sabha should remove
Exception 2 from Section 375 of the IPC to achieve justice for the women who have been sexually
abused by their husbands. Further provisions should be added to ensure that women receive support in
the form of civil remedies such as shelter homes, medical facilities, and monetary relief 12. Furthermore,
the inclusion of non-consent, sexual intercourse due to a spouse in the definition of rape in the IPC will
allow the legal system to record cases of marital rape. As of today, marital rape and abuse are grossly
under-reported to the police. By training the police force to accurately report cases of marital rape, the
problem can be identified, and women can receive the legal help and protection they deserve. NGOs,
hospital emergency rooms, and counseling centers for women can work in conjunction with police
stations to provide victims with the support they so desperately need.
In comparison to other nations, at least 140 developed and developing counties have passed
laws on domestic violence, and 144 have laws on sexual harassment 13. Although India is not among
these countries, there is potential. By addressing marital rape, India can empower women, which has
been proven to have a positive relationship with the development of a nation 13. Members of the Rajya
Sabha have the legislative power to amend the IPC and prioritize the health and well-being of the
citizens of India. When women are empowered, a nation is empowered.

References:

1. Human Rights Watch. (2013, February 11). India: Reject New Sexual Violence Ordinance.
Retrieved March 7, 2018, from https://www.hrw.org/news/2013/02/11/india-reject-new-
sexual-violence-ordinance
2. International Institute for Population Sciences. (2017, December). National Family Health Survey
(NFHS-4), 2015-16: India. Mumbai, India: International Institute for Population Sciences.

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3. Pande, R. P., Nanda, P., Bopanna, K., & Kashyap, A. (2017). Addressing Intimate Partner Violence
in South Asia: Evidence for Interventions in the Health Sector, Women’s Collectives, and Local
Governance Mechanisms. New Delhi: International Center for Research on Women.
4. Nanda Priya, Gautam Abhishek, Verma Ravi, Khanna Aarushi, Khan Nizamuddin, Brahme
Dhanashri, Boyle Shobhana and Kumar Sanjay (2014). “Study on Masculinity, Intimate Partner
Violence and Son Preference in India”. New Delhi, International Center for Research on Women.
5. Ending Child Marriage- Progress and Prospects (Rep.). (2014). Retrieved February 15, 2017, from
UNICEF website: https://www.unicef.org/media/files/Child_Marriage_Report_7_17_LR..pdf
6. Mallapur, C. (2015, September 4). Crimes Against Women Reported Every Two Minutes.
Retrieved February 18, 2017, from http://www.indiaspend.com/cover-story/crimes-against-
women-reported-every-two-minutes-84240
7. Tahhan, Z. (2016, August 31). India: More than 34,000 cases of rape reported in 2015. Al Jazeera
News. Retrieved March 4, 2018, from https://www.aljazeera.com/news/2016/08/india-34000-
cases-rape-reported-2015-160831140518208.html
8. Gupta, A. (2014, September 25). Reporting and incidence of violence against women in India
(Rep.). Retrieved March 4, 2018, from Rice Institute website:
http://riceinstitute.org/wordpress/wp-content/uploads/downloads/2014/10/Reporting-and-
incidence-of-violence-against-women-in-India-working-paper-final.pdf
9. Srivastava, R. (2016, September 16). Marital rape: the statistics show how real it is. The Hindu.
Retrieved March 5, 2018, from http://www.thehindu.com/news/cities/mumbai/Marital-rape-
the-statistics-show-how-real-it-is/article14410173.ece
10. PRS Legislative Research. (2013). The Criminal Law (Amendment) Bill, 2013 (India, Lok Sabha).
Retrieved March 5, 2018, from
http://www.prsindia.org/uploads/media/Criminal%20Law,%202013/Criminal%20Law%20(A),%2
02013.pdf
11. Government of India. (2012, August 30). Section 498A IPC Report No.243 (India, Law
Commission Of India). Retrieved March 7, 2018, from
http://lawcommissionofindia.nic.in/reports/report243.pdf
12. National Commission for Women, India (2005, September 13). The Protection Of Women From
Domestic Violence Act, 2005. Retrieved March 5, 2018, from
http://ncw.nic.in/acts/TheProtectionofWomenfromDomesticViolenceAct2005.pdf
13. United Nations Women. (2017, August). Facts and figures: Ending violence against women.
Retrieved March 05, 2018, from http://www.unwomen.org/en/what-we-do/ending-violence-
against-women/facts-and-figures