M A H AR AS H TR A N A TI O NA L LA W U N I VE R S I TY ,

A U R AN G AB A D
~the cradle of future jurists~

FAMI LY LAW – I PROJE CT

Topic – MARITAL RAPE & ITS INTERFACE WITH

IPC AND FAMILY LAW

SUBMITTED BY:

MANASVI SHARMA, CHETNA SHRIVASTAVA,

Roll No. 30 Roll No. 29

B.A.LLB(Hons.) Semester III B.A.LLB(Hons.) Semester III
BATCH: 2017 – 2022 BATCH: 2017 – 2022

SUBMITTED TO:

Prof. (Dr.) Ashok Wadje

Assistant Professor of Law

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 TABLE OF CONTENTS

PAGE TEACHER’
S. No. TITLE
NO. S SIGN

1. Introduction 3

2. The Concept of ‘Consent’ 4

3. Historical & Social Aspect 5

4. Evolution of Indian Laws on Marital Rape 8

5. Independent Thought v. Union of India 14

6. India’s International Obligations 18

Constitutionality of The Marital Rape

7. 19
Exemption

8. Right to Privacy 21

9. Rights Yet to Be Recognised 23

10. Conclusion 25

11. Bibliography 26

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 INTRODUCTION

Violence is a coercive mechanism to assert one’s will over another, in order to prove or feel a
sense of power.

Sexual violence describes the deliberate use of sex as a weapon to demonstrate power over and
to inflict pain and humiliation upon, another human being. Sexual violence may be defined as
any violence, physical or psychological, carried out through sexual means or by targeting
sexuality.

Rape must be understood as the gravest kind of sexual violence against women – an extreme
manifestation occurring in the continuum of sexual violence which negates the human rights
of the women completely. Rape stems from sexist values and beliefs and it is not simply an
issue affecting individual woman. It is a social and political issue directly connected to
imbalances of power between men and women. Rape is an act of aggression and violence in
which the victim is denied her self-determination.

Marital rape refers to rape committed when the perpetrator is the victim’s spouse. The
definition of rape remains the same, i.e. sexual intercourse or sexual penetration when there is
lack of consent. Therefore, an essential ingredient to prove the crime of rape is to prove the
lack of consent. This burden to prove the lack of consent often rests on the victim. In some
instances, as in the case of minors, it is presumed that consent does not exist as they are
presumed by law to be incapable of consenting to such sexual acts.

On the other hand, there are also instances when consent is presumed to exist. Often, this
presumption exists when the victim and the perpetrator are married. In such instances, the idea
of marital rape becomes antithetical.

A matrimony is a relation of dependence and of concern. A man practicing intimate supremacy,

by making it on order and by any means desirable. Rape laws in India continue with the
patriarchal mindset of considering women to be the property of men post marriage with no
autonomy or agency over their bodies.

Till now we don't have any well-defined law for "Marital Rape" in our constitution yet. it's an
immoral act of humans which is totally infringing on the rights of women's accordance to
Article 14 and Article 21.
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 THE CONCEPT OF ‘CONSENT’

There is an apparent difference between the consent that a person gives to the liberal state as a
citizen and the consent one gives to the various social relationships he shares as a member of
one’s family. The most intimate relationship which is shared by a woman with her husband has
to be governed by consent. Right from the first stage where she agrees to marry the man to the
point where she agrees to engage in sexual intercourse with him, consent has to be established
at every stage quite clearly.

Since history and societal studies have been dominated by patriarchal supremacy, it has been
assumed that women will always give their consent for all sexual activities to the husband. The
existence of women has never got an independent identity and therefore decisions related to
women have always been taken by the men in her life. If ever a woman resorts to explicit non-
consent, it is considered to be as irrelevant or some sort of minor resistance which can then be
converted and reinterpreted as consent.

The ‘implied consent’ theory is one such justification. Here, an irrefutable presumption of
consent is thought to exist when a man and woman enter the institution of marriage. Marriage
is considered to be a civil contract and consent to sexual activities is thought to be the defining
element of this contract.

Consent must always be given in a relationship, especially in a married life, it is always women
who should give consent to the man. However, what happens is that the "naturally" superior,
active, and sexually aggressive male makes an initiative, or offers a contract, to which a
"naturally" subordinate, passive woman "consents." An egalitarian sexual relationship cannot
rest on this basis; it cannot be grounded in such a simplistic version of "consent." Perhaps, the
most inherent problem is the inability to create a common framework, language or a discourse
through which we can look at personal relations where two individuals can form an association
for lifetime based on mutual respect, consideration and respect for human rights.

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 HISTORICAL & SOCIAL ASPECT

Historically, “Raptus”, the generic term of rape was to imply violent theft, applied to both
property and person. It was synonymous with abduction and a woman’s abduction or sexual
molestation, was merely the theft of a woman against the consent of her guardian or those with
legal power over her. The harm, ironically, was treated as a wrong against her father or
husband, women being wholly owned subsidiaries.

As the word marital rape consists of a term “marital” which does means married; earlier it was
not considered as a rape.

The marital rape exemption can be traced to statements by Sir Mathew Hale, Chief Justice in
England, during the 1600s. He 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, whom she cannot retract.” Not surprisingly, thus,
married women were never the subject of rape laws.

Laws bestowed an absolute immunity on the husband in respect of his wife, solely on the basis
of the marital relation. The revolution started with women activists in America raising their
voices in the 1970s for elimination of marital rape exemption clause and extension of guarantee
of equal protection to women.

Status of Marital Rape In Hindu Scriptures

It is generally believed that the Hindu law particularly harsh towards women and denied them
sexual and economic reform. The Hindu joint family structure based on male coparcenary, was
the institution through which sexual control was affected by denying women the right to own
property. In this realm of patriarchal domination, women were treated as chattels and upon
marriage dominion over them was transferred from the father to the husband within the
confines of perpetual tutelage.

In support of this premises, it is emphasized that Manu, the arc law giver of Hindu religion

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stipulated: 'A woman must be dependent upon her father in childhood, upon her husband in
youth and upon her sons in old age. She should never be free'. The strict sexual control was
also affected through ordeals. Sita's ordeal by fire is set out an example. It is also believed that
the modernity ushered in during the colonial rule and post-independence period helped to
loosen out this strict sexual control by granting women the right of only divorce and property
ownership.

In English Law

During ancient times in English law, human entity includes both men and women but in legal
entity there is nowhere mention of concept of women. They are taken as object to husband
where husband has complete ownership over her and he is free to do anything over her. In legal
concept all the actions are taken in name of men and women has no such right at that time. The
seeds of male dominant society were sown long time ago. The women were not free to take
their decision by own. From birth to till death they are dependent on someone i.e. father,
husband and son. The main task with them is to manage family and do household work and
nothing more than that. Where a woman cannot choose husband according to his will. It is very
far to imagine about matrimonial rights. Whenever the woman was subjected to cruelty, she
can't do anything because of lack of provision with that of patriarchal society. People who take
advantage of male dominant society are demons.

Islamic Sexual Jurisprudence

Islamic researcher portrays that when a husband asks his wife to give sexual intercourse during
her menstrual period, strange sexual position or fasting hours in Ramadan is term as marital
rape. Anal intercourse amounts to marital rape. The Islamic sharia states that sexual conduct
between man and wife should be conducted with love and intimacy and made a sign of
compliance.

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God stated in Quran that your wives are a place of sowing of seed for you, so come to your
place of cultivation to plant a good crop because the consequence of this is to be handled by
yourselves. And fear Allah and know that you will meet him and give good tidings to the
believers. In Islamic law if wife hates her husband and deciding to leave then she should not
be hasty in taking decision and encourages her to have some patience in order not to destroy
family. For if you dislike them- perhaps you dislike a thing and Allah makes therein much
good.

Prophet Mohammad exclaimed it is true that contract of marriage grants husbands the rights to
intercourse with his wife but however this does not imply that these vested rights to be used in
violently and forcefully manner. Marital rape does not warrant a hadd punishment. Some
mistakenly believes that hadd punishment only ones exist in Islamic law. Even if offence does
not fall under categories of hadd punishment still judge has right to punish person.

Hence, Islam approves what is called marital rape.

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 EVOLUTION OF INDIAN LAWS ON
MARITAL RAPE

For thirty years, after the enactment of IPC’ 1860, rape law remained the same. The later
change was owing to a number of cases in Bengal in which the child wife died due to
consummation of marriage. Out of these, the most notable was Queen Empress v. Haree
Mohan Mythee1. This case tells the pathetic story of phulmonee Dassee, who was eleven years
and three months old when she died as a result of rape committed on her by her husband. The
medical evidence showed that Phulmonee had died of bleeding caused by ruptured vagina. In
this case, rape of child wife was severely condemned and it was held that the husband did not
have the right to enjoy the person of his wife without regard to the question of safety to her.

The Indian Penal Code (‘IPC’) in Section 375 criminalises the offence of rape. It is an
expansive definition which includes both sexual intercourse and other sexual penetration such
as oral sex within the definition of ‘rape’.2 However, in Exception 2, it excludes the application
of this section on sexual intercourse or sexual acts between a husband and wife. Thus, a wife
under Indian law does not have recourse under criminal law if a husband rapes her. The
wording of Section 375 of the IPC on account of the Criminal Law (Amendment) Act, 2013
are:

“375. A man is said to commit "rape" if he—

penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or
makes her to do so with him or any other person;

or inserts, to any extent, any object or a part of the body, not being the penis, into the vagina,
the urethra or anus of a woman or makes her to do so with him or any other person; or

manipulates any part of the body of a woman so as to cause penetration into the vagina,
urethra, anus or any ~ of body of such woman or makes her to do so with him or any other
person; or applies his mouth to the vagina, anus, urethra of a woman or makes her to do so

1
Queen Empress v. Hurree Mohan Mythee, (1890) 18 Cal. 49 (India).
2
The Indian Penal Code, 1860, Section 375 as amended by the Criminal Law Amendment Act, 2013.
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with him or any other person, under the circumstances falling under any of the following seven
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 eighteen years of age.

Seventhly.—When she is unable to communicate consent.

Explanation I.—For the purposes of this section, "vagina" shall also include labia majora.

Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by

words, gestures or any form of verbal or non-verbal communication, communicates willingness
to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the
reason only of that fact, be regarded as consenting to the sexual activity.

Exception I.—A medical procedure or intervention shall not constitute rape.

Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being
under fifteen years of age, is not rape”.3

Exception 2 of Section 375 of the IPC (‘exception clause’) does not state any reason for the
exclusion of sexual intercourse or sexual acts between a man and his wife from the purview of

3
The Indian Penal Code, 1860, Section 375.
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rape. Since the crux of the focus of the section is on consent, it is possible that an irrefutable
presumption of consent operates when the relationship between the victim and the perpetrator
is that of marriage. However, at the same time, it is also possible that this was a legislative
decision to exclude the operation of this section from married relationships given the sanctity
that this institution has assumed in our society. This is probable since there are sections in the
IPC where spouses are exempt from its application.4

While the law does not criminalise marital rape, a specific form of marital rape is criminalised.
In Bishnudayal v. State of Bihar5, where the victim, a girl of 13 or 14 years of age, who was
sent by her father to accompany the relatives of his elder daughter’s husband to look after her
elder sister for some time, was forcibly ‘married’ to the appellant and had sexual intercourse
with her, the accused was held liable for rape under section 376 of IPC. Non-consensual sexual
intercourse when the wife and husband are living separately on account of judicial separation
or otherwise, too, is punishable by 2 to 7 years imprisonment. Section 376B of the IPC states:

“376B: Sexual intercourse by husband upon his wife during separation: Whoever has sexual
intercourse with his own wife, who is living separately, whether under a decree of separation
or otherwise, without her consent, shall be punished with imprisonment of either description
for a term which shall not be less than two years but which may extend to seven years, and
shall also be liable to fine.

Explanation - In this section, "sexual intercourse" shall mean any of the acts mentioned in
clauses (a) to (d) of Section 375”.6

This section indicates that in Section 375 of the IPC consent is presumed, which is not so here
since the husband and wife are not living together. Living together raises a presumption that
the wife has consented to sexual intercourse by the husband. This is open for speculation and
an analysis of the trajectory of legislative debates and reports of the Law Commission of India
(‘Law Commission’) surrounding marital rape aids us in understanding the reasons behind the
exception clause in India.

The first report to deal with this issue was the 42nd Law Commission Report.7 Since the law
has been amended at various intervals subsequent to this report, the importance of this report

4
The Indian Penal Code, 1860, Section 136, 212 & 216.
5
Bishnudayal vs. State of Bihar (1980), MANU/SC/0118/1980 (India)
6
The Indian Penal Code, 1860, Section 376B.
7
Law Commission of India, Indian Penal Code, Report No. 42 (June 1971)
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is restricted to understanding the prism through which the Law Commission views marital rape.
This report made two important suggestions. First, it noted that in instances where the husband
and wife were judicially separated, the exception clause must not apply. Although this was a
laudable suggestion, the reasoning given for this was unclear. It stated that “in such a case, the
marriage technically subsists, and if the husband has sexual intercourse with her against her
will or her consent, he cannot be charged with the offence of rape. This does not appear to be
right”. It does not discuss the reason why this is not right. It implies that consent is presumed
in situations where the husband and wife live together and cannot be implied when they do not
live together. The second suggestion made in this report was regarding non-consensual sexual
intercourse between women aged between twelve and fifteen. It stated that the punishment for
such offences must be put into a separate section and preferably not be termed rape. This was
because prior to the recent amendments in the IPC, there was a different punishment for rape
committed by the husband when the wife was between twelve and fifteen. The defining feature
of the second suggestion is the reluctance to classify marital rape as rape, but at best as a lower
form of sexual misdemeanour. In summary, this report highlighted the presumption of consent
that operates when a husband and wife live together and the differentiation between marital
rape and other rape, where the former is viewed as less serious. It did not however comment
on the exception clause itself, i.e. whether the exception clause must be retained or deleted.

The Law Commission was directly faced with the validity of the exception clause in the 172nd
Law Commission Report.8 Here, during the consultation rounds, arguments were advanced
regarding the validity of the exception clause itself. It was argued that when other instances of
violence by a husband toward wife was criminalised, there was no reason for rape alone to be
shielded from the operation of law. The Law Commission rejected this argument since it feared
that criminalisation of marital rape would lead to “excessive interference with the institution
of marriage”. This report sheds light on the interplay between marital rape and the sanctity of
the institution of marriage.

In 2012, marking a departure from the tone of previous discussions, a committee constituted
under Justice J.S. Verma (Retd.) advocated for the criminalisation of marital rape. This
committee was formed in light of the nation-wide agitation seeking to make criminal law more
efficient to deal with cases of heinous sexual assault against women.9 The committee published

8
Law Commission of India, Review of Rape Laws, Report No. 172 (March 2000).
9
GOI Notification No. SO (3003), December 12, 2012.
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the ‘Report of the Committee on Amendments to Criminal Law’ (‘J.S. Verma Report’) in
2012. 10 One of the suggestions given in this report was that marital rape ought to be
criminalised. A two-fold recommendation to this effect was made. The preliminary
recommendation was simply that the exception clause must be deleted. The second suggestion
was that the law must specifically state that a marital relationship or any other similar
relationship is not a valid defence for the accused, or relevant while determining whether
consent existed or not and that it was not be considered a mitigating factor for the purpose of
sentencing. This report discussed how the immunity granted in case the perpetrator is the
husband of the victim stemmed from the outdated notion of women being the property of men
and irrevocably consenting to the sexual needs of their husband. It remarked how this immunity
has been withdrawn in a number of jurisdictions and in the modern concept of marriages
between equals, such an exception clause cannot stand.

In light of this, the Criminal Law Amendment Bill, 2012 (‘Amendment Bill, 2012’) was
drafted.11 In this Bill, the word ‘rape’ was replaced with ‘sexual assault’ in an attempt to widen
its scope but the Bill did not contain any provision to criminalise marital rape. The Amendment
Bill, 2012 did not take into account the suggestions laid down in the J.S. Verma Report. The
Parliament Standing Committee on Home Affairs in its 167th Report (‘Standing Committee
Report’) reviewed this Amendment Bill, 2012 and also organised public consultations.12 Here,
it was suggested that Section 375 must be suitably amended to delete the exception clause.
However, the Standing Committee refused to accept this recommendation. The Standing
Committee Report argued that, first, if they did so, the “entire family system will be under
greater stress and the committee may perhaps be doing more injustice”. Second, the Committee
reasoned that sufficient remedies already existed since the family could itself deal with such
issues and that there existed a remedy in criminal law, through the concept of cruelty as under
Section 498A of the IPC. 13

Recently, in 2015, this argument was reiterated by the Ministry of Home Affairs in reply to a
bill proposed by a Member of Parliament which aimed to criminalise marital rape.14 The press

10
JUSTICE J.S. VERMA COMMITTEE, Report of Committee on Amendments to Criminal Law (January 23,
2013).
11
The Criminal Law Amendment Bill, 130 of 2012.
12
STANDING COMMITTEE ON HOME AFFAIRS, Fifteenth Lok Sabha, Report on The Criminal Law
(Amendment) Bill, 2012, One Hundred and Sixty Seventh Report, 45, (December 2015).
13
The Indian Penal Code 1860, Section 498A.
14
The Criminal Laws (Amendment) Bill, 2014, 28 of 2014.
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release stated that it “was considered that the concept of marital rape, as understood
internationally, cannot be suitably applied in the Indian context”. 15 One of the reasons given
for this was the “mind-set of the society to treat the marriage as sacrament”. Further, notably,
a private bill was introduced on this topic in December, 2015. During the ensuing discussion,
the Home Minister stated that this was being considered by the Law Commission, and any
decision would only be taken after the report came out. A striking aspect of his speech was his
reference to the existing remedy of ‘cruelty’ that already existed in the IPC.

In 2016, the Home Minister was again questioned about the existence of the marital rape
exception and if the government was planning on criminalising marital rape. Again, the Home
Minister replied that the matter was being studied by the Law Commission and no decision had
been taken to criminalise it since the Parliamentary Standing Committee had decided against
it.

This attitude towards criminalisation of marital rape is not restricted to the legislature alone, it
extends to the judiciary. Although there are no cases in which the constitutionality of the
exception clause in Section 375 has been explicitly upheld, there have been instances when
courts have simply avoided this question, dismissed petitions to strike down this exception
clause or have otherwise used the exception clause to avoid answering questions as to whether
a husband raped his wife.

15
Press Release, PRESS INFORMATION BUREAU, April 29, 2015.
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 INDEPENDENT THOUGHT V. UNION
OF INDIA [2017] 16

In a writ petition filed in public interest by a society – Independent Thought, the Supreme Court
has considered the scope and viability of exception 2 to section 375 IPC. The issue before the
court was to consider the recognition of marital rape when the husband has sexual intercourse
with the wife when she happens to be between15-18 years of age. This is a landmark decision
of Supreme Court whereby the court has held:17

Exception 2 to Section 375 of the Indian Penal Code answers this in negative, but in our opinion
sexual intercourse with a a girl below 18 years of age is rape regardless of whether she is
married or not. The exception carved out in the IPC creates an unnecessary and artificial
distinction between a married girl child and an unmarried girl child and has no rational nexus
with any unclear objective sought to be achieved. The artificial distinction is arbitrary and
discriminatory and definitely not in the best interest of the girl child.

The court further held that the artificial distinction is contrary to the philosophy and ethos of
articles 15(3) and 21of the Constitution as well as the International conventions. It certainly
violates the bodily integrity of the girl child and her reproductive choices. The petitioner society
pointed out that any person who has sexual intercourse with a girl child below 18 years will be
liable for statutory rape even if it is with the consent of the minor girl and the situation is very
absurd when the offender happens to be her husband because in such case the marital
exemption applies and the husband goes scott free and escapes the punishment completely. It
is because of her marriage, the right of such girl child to her bodily integrity and to decline
sexual intercourse with her husband is snatched away. Just because of her marriage she does
not become mentally or physically fit for such decisions.

Pointing out the obligations of the Indian government under Convention on the Rights of the
Child,1990 18 to undertake all appropriate measures to prevent the sexual exploitation and
sexual abuse of any person the court observed that the Indian government has persuaded the

16
Independent Thought v. Union of India, W.P. (Civil) No. 382 of 2013, decided on October 11, 2017 (Madan
B. Lokur and Deepak Gupta JJ) (hereinafter, Independent Thought).
17
Madan B. Lokur, J in 2017 SCC OnlineSC 1222 [Writ petition (C) no.382 of 2013] at 2.
18
Convention on Rights of the Child, Arts 1 and 34.
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legislature to legitimize an activity which is otherwise a heinous offence when occurs without
marriage. The duality of the marital exemption clause is that it comes in sharp conflict with the
provisions of POCSO19 and JJA20. The POCSO defines “penetrative sexual assault”21 which
becomes aggravated when the offender is related to the victim. 22 Since the Act has got
overriding effect, a very complex and peculiar legal position emerges whereby the husband is
exempted from any offence under IPC and he becomes liable to be punished for aggravated
sexual assault under POCSO. Similarly, under JJA, a married girl child below the age of 18
years requires care and protection as she is prone to exploitation.

The Supreme Court has pointed out the legislative scheme as is deducible from various
legislations that a child is a person below 18 years of age who is entitled to the protection of
her human rights; unfortunately, if gets married while a child. Her marriage is in violation of
law and voidable at her instance 23 and the accused husband is liable to be punished under
POCSO. The only jarring note is the exemption granted to him under the IPC.

The court took note of the fact that the Committee on Amendments to Criminal law, headed by
Justice Verma has also pointed out that the age old notion of a wife being a subservient chattel
of the husband is no longer a viable proposition. The Committee has recommended the deletion
of the marital rape exemption under the IPC while making the reference that a rapist is a rapist
irrespective of his relationship with the victim.

With a view to harmonise the provisions of the IPC, the POCSO Act, the JJA and the PCMA,
the court has tried locating a resolution, which they feel, is best found in the Karnataka
Amendment to the PCMA, 2006. The state legislature has inserted a sub section (1-A) in
section 3 of the PCMA declaring that every marriage henceforth will be void ab initio, if
violative of the age requirements specified. Therefore, the husband of a girl child will be held
liable for the offences under POCSO if the husband and the girl child are living together in the
same household.

The court has observed that “it would be wise for all state legislatures to adopt the route taken
by the Karnataka legislature to void child marriage and thereby ensure that sexual intercourse

19
The Protection of Children from Sexual Offences Act, 2012, No. 32 of 2012
20
THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015 NO. 2 OF 2016 [31st
December, 2015.]
21
POCSO, S-3.
22
POCSO, S-5 penalizes the act and provides for a rigorous imprisonment of not less than 10 yrs.
23
The Prohibition of Child Marriages Act, 2006, s.3.
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between a girl child and her husband is a punishable offence under the POCSO Act and the
IPC.”

The court has considered various options to lessen the turmoil of the girl child and observed:
…[W]e are left with absolutely no other option but to harmonise the system of laws relating to
children and require exception 2 to section 375 IPC to now be meaningfully be read as:
“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under
eighteen years of rape, is not rape.” It is only through this reading that the intent of social
justice to the married girl child and the constitutional vision of the framers of the Constitution
can be preserved and protected and perhaps given impetus.

On one point, however, the Supreme Court was categorical: that the decision would not apply
to marital rape of adult women (hereinafter, marital rape simpliciter). The Court stated,

“We make it clear that we have refrained from making any observation with regard to the
marital rape of a woman who is 18 years of age and above since that issue is not before us at
all. Therefore we should not be understood to advert to that issue even collaterally.”24

Yet, in addressing the contentions of both sides, the Supreme Court has laid the groundwork to
have the exemption to marital rape declared unconstitutional. First, the Supreme Court
considered international instruments to which India is a signatory, such as the Convention on
the Rights of the Child (CRC) and the Convention for the Elimination of all forms of
Discrimination against Women (CEDAW). Since the marital rape exemption legitimized the
practice of ‘child marriage’, it was found to be in contravention of the obligations imposed by
these instruments. Secondly, the Exception was found to be derogatory of Article 14 and 21,
and therefore, unconstitutional. Thirdly, it was observed that the exemption was inconsistent
with other laws in force, and also created internal contradictions within the IPC. Finally, it was
held that the social impact of child marriage, which was legitimized by the marital rape
exemption, was too great to let the exemption stand on the statute book.

The Independent thought judgment is indeed a vivid illustration of judicial activism and
craftsmanship to give a socially viable interpretation to a provision incorporating a dead
concept in the legislation. But at the same time, it is a little disappointing to note that how the
Supreme Court on more occasions than one, has very categorically stated that they would not

24
Independent Thought, p.2, para 2
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like to make a comment on marital rape generally where the age of the wife is 18 or more
than18 years.

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INDIA’S INTERNATIONAL OBLIGATIONS

The Supreme Court referred to several national and international studies detailing the harms of
child marriage. Reference was also made to the CRC and other international treaties which
obligate the state to prioritize the best interest of the child, an obligation violated by Exception
2 to Section 375, IPC. Since most of these studies and international instruments focus on child
marriage and offences against children, they would not be applicable to marital rape simpliciter.

However, the Supreme Court also referred to the In-depth Study on all Forms of Violence
against Women submitted by the Secretary-General of the United Nations to the General
Assembly,25 and the CEDAW.26 The Court relied on the Study to highlight the point that early
marriage was a harmful traditional practice. Given the persuasive value attached to the Study
by the Court, it must be noted that it also refers to marital rape as a specific form of violence
against women which ought to be criminalised.27 Similarly, reference was made to Article 16.2
of the CEDAW, which provides, “The betrothal and the marriage of a child shall have no legal
effect, and all necessary action, including legislation, shall be taken to specify a minimum age
for marriage and to make the registration of marriages in an official registry compulsory.” In
citing this provision, the Court sought to draw attention to the obligation imposed by CEDAW
to end child marriages. It was noted that non-consensual sexual intercourse by a husband with
a child-bride “would amount to a violation of her human right to liberty or dignity embodied
in international conventions accepted by India such as the Convention of the Rights of the Child
and the Convention on the Elimination of all forms of Discrimination against Women.” In
doing this, the Court equated the obligation placed on the state by both conventions.

Clearly, then, other provisions of CEDAW ought to be viewed with the same gravitas. Article
16(g) of the CEDAW obligates state parties to ensure that women do not suffer discrimination
within marriage, especially in the exercise of personal rights.28 The right to consent, or indeed,
refuse consent, to sexual intercourse is inherent to a person’s bodily integrity and sexual
autonomy. Therefore, it is a fundamental personal right, deserving of protection from the state.

25
Independent Thought, pp. 13-14, para 15.
26
Independent Thought, pp. 25-26, para 40.
27
In-depth Study on all forms of Violence against Women, presented by the Secretary General of the United
Nations to the General Assembly (July 6, 2006)
28
Article 16, Convention for the Elimination of all forms of Discrimination against Women, 1981
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 CONSTITUTIONALITY OF THE
MARITAL RAPE EXEMPTI ON

The exception to marital rape, as applicable to minor girls, was declared unconstitutional for
violating two fundamental rights: Article 1429 and Article 21,30 Constitution of India.

It was held that there was no discernable object behind the distinction between “married” and
“unmarried” minor girls. Even if there were an object, the Court added, there was no rational
nexus between the marital status of a minor girl on the one hand, and the “unclear object” on
the other. The classification was, therefore, held to be arbitrary, and violative of Article 14. It
is difficult to understand how this rationale can be limited to minor girls alone. There is no
discernible object behind classifying women into “married” and “unmarried” when
considering their right to refuse consent to sexual intercourse. A woman cannot be deemed to
have implicitly consented to sexual intercourse with her husband simply by virtue of
marriage. In fact, the same sentiment was expressed by the Supreme Court, which held,

“It must be remembered that those days are long gone when a married woman or a married
girl child[not just a married girl child] could be treated as subordinate to her husband or at
his beck and call or as his property. Constitutionally a female [not just a minor female] has
equal rights as a male and no statute should be interpreted or understood to derogate from
this position. If there is some theory that propounds such an unconstitutional myth, then that
theory deserves to be completely demolished.”31

It was further held that the exception contravenes the fundamental right of a girl child under
Article 21 to live a life of dignity.

“The right of a girl child to maintain her bodily integrity is effectively destroyed by a
traditional practice sanctified by the IPC. Her husband, for the purposes of Section 375 of

29
Article 14, Constitution of India, 1950: The State shall not deny to any person equality before the law or the
equal protection of the laws within the territory of India.
30
Article 21, Constitution of India, 1950: No person shall be deprived of his life or personal liberty except
according to procedure established by law.
31
Independent Thought, p. 52, para 82.
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the IPC, effectively has full control over her body and can subject her to sexual intercourse
without her consent or without her willingness since such an activity would not be rape.”32

The “traditional practice” being referred to above is child marriage. The IPC sanctified this
practice by allowing the husband of a girl child to have sexual intercourse with her,
regardless of her consent, provided she was not under the age of 15. The harm identified by
the Court is that the right of the girl child to maintain her bodily integrity is destroyed when
her husband is given full control over her body, thereby reducing her to nothing more than his
property. By denying a whole category of women the right to refuse consent to sexual
intercourse with their husbands, merely by virtue of being married, the IPC similarly destroys
the right of this category of adult women to their bodily integrity. Thus, the basis of the
violation of Article 21, as identified by the Court itself, is applicable equally, and in the same
way, to adult married women, as it is to child brides.

Additionally, it was held that the exception contravenes Article 21 by taking away the girl
child’s right to make her own reproductive choices. This is a harm more directly attributable
to child marriage, and only incidentally to the exception which legitimizes the practice.
Marital rape of a major woman may, similarly, result in a pregnancy, which the woman may
be forced to carry to term. This would also be a contravention of her right to reproductive
choice, but no more, perhaps, than if a man were to force a woman to carry his child,
conceived after consensual sex. In other words, it is not the act of marital rape which
contravenes the reproductive choice of a woman, but forcing her to carry the child to term, or
preventing her from aborting the foetus.

32
Independent Thought, p. 56, para 88.
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 RIGHT TO PRIVACY

Following Puttaswamy v Union of India 33

– in which the judges unanimously
and unequivocally ruled that a right to privacy exists – the marital rape exception found in the
Indian Penal Code which states that non-consensual sex between a man and his wife is not rape
has found another aspect to become a provision of questionable legal standing.

In India “right to privacy” is not explicitly contained in the text of the Constitution. Historically,
it developed mainly through precedent under Article 21 (right to personal liberty) and Article
14 (right to equality). This led to the right to privacy being malleable and this malleability has
had deleterious consequences for gender equality and women’s rights.

The legal framework both in the colonial and post-independence period placed a heavy reliance
on the concept of privacy on matters of marriage and family. The idea of privacy–specifically
marital and family privacy–has been used by the Government to defend the marital rape
exception which states that non-consensual sexual intercourse between a man and his wife is
not rape. This conception of privacy functions on the understanding that the mandate of the
State stops at the threshold of the home and family and that the constitutionally guaranteed
rights of equality and personal liberty to individuals do not apply within the space of home and
the institution of marriage. This means that the basic unit of privacy is, or perhaps was, the
marital union and not the individuals who are married. While the law’s protection would extend
to the spouses who want to claim sacred protection behind the institution of the family, it will
not concern itself with what the individuals would do to each other within it.

However, with the Puttaswamy judgment’s interpretation of privacy, the conception of privacy
on which the marital rape exception rested has been swept away. In this judgment, unlike in
earlier cases, the individual has been placed at the heart of the right to privacy. The judgment
stated that privacy “allows each human being to be left alone in a core which is inviolable”. It
upheld the “right to privacy” as a “decisional right” over its other “institutional” and “spatial”
forms. This was captured in the varying forms across the opinions rendered by all 9 judges out
of which 6 opinions were concurring.

33
Justice K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Ors. (2017) MANU/SC/1044/2017
Page | 21
While Justice Chelameswar included decisional autonomy as one of the three prongs in his
exposition of privacy, Justice Chandrachud cited various examples of individuals exercising
decisional autonomy in his opinion to explain his formulation of the right to privacy.

Justice Nariman, in his opinion ruled that “right of personal choice” forms the bedrock of right
to privacy. He writes that “the dignity of the individual encompasses the right of the individual
to develop to the full extent of his potential. And this development can only be if an
individual has autonomy over fundamental personal choices.” Justice Kaul reflected the
opinions of the other judges, by also emphasizing choice. He stated: “Privacy is about
respecting an individual and it is undesirable to ignore a person’s wishes without a compelling
reason to do so” and at the end it “is an individual’s choice as to who enters his house, how he
lives and in what relationship”.

Justice Chandrachud’s opinion should also be read as a clarification of how the judges feel the
right to privacy should function from now on. He articulates the problems the myriad
interpretations of privacy have had for women by alluding to the gender violence that has been
flourishing unfettered in the cordoned off space of home and family. While being cognizant of
how privacy can be manipulated to be a weapon against woman, Chandrachud notes that
women have an inviolable interest in privacy, as an empowering tool.34

In St of Maharashtra vs Madhukar Narayan Mardikar, 1991, the court made it clear that even
a woman of ―easy virtue is entitled to privacy and no one can invade her privacy as and when
he likes.

Marital exemption to rape violates a married woman’s right to privacy by forcing her to enter
into a sexual relationship against her wishes.

34
Madhulika T, “What the Right To Privacy Judgment Means for India’s Marital Rape Exception ” (OxHRH
Blog, 6 April 2018), <http://ohrh.law.ox.ac.uk/what-the-right-to-privacy-judgment-means-for-indias-marital-
rape-exception>
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 RIGHTS YET TO BE RECOGNISED

The Right to Privacy judgement has truly open the floodgates of discussions and amendments
of existing laws, including marital rape. In this context, there are certain rights, that we feel, is
high time India should recognise.

These rights come, for the most part, under the scope of Article 14 and Article 21 of the
Constitution of India.

RIGHT TO BODY

Right to Body is based on accepting the concept and principle of Bodily Integrity.

The principle of bodily integrity sums up the right of each human being, including children, to
autonomy and self-determination over their own body. It considers an unconsented physical
intrusion as a human rights violation.

While the principle has traditionally been raised in connection with practices such as torture,
inhumane treatment and forced disappearance, bodily integrity has the potential to apply to
wide range of human rights violations, including marital rape.

Practices which violate a woman's bodily integrity include all forms of physical violence,
ranging from corporal punishment to forced medical treatment and sexual activities, against a
woman's express wishes, married or unmarried. Non-therapeutic and unconsented surgeries are
also violations of bodily integrity, and include practices such as 'corrective' genital surgery
performed on intersex children, gender reassignment surgery, female genital mutilation,
routine circumcision of male infants and boys, and the sterilisation of people with learning
disabilities.

“The concept of absolute right over one's body was a myth and there were various laws which
put restrictions on such a right”- former Attorney General (AG) Mukul Rohatgi told the court
in the context of the fingerprints and iris scans required for Aadhaar or the Unique
Identification (UID) number. This concept however should not be considered a myth and must
not be restricted by law, especially, when it comes to consensual sexual intercourse or any
sexual activity for that matter in case of both males and females, married or unmarried.
Page | 23
 RIGHT TO SAY NO

The Right to Say No is the directly linked to the need to consider and take into account the
concept of personal will and consent in the case of a married individual too.

In India, because of the patriarchal set-up of the society, the majority of the victims of marital
rape are the female spouses and therefore the discussion in this context is largely based on the
consideration of condition of female in the country.

“Does a woman or man lose their degree of sexual autonomy after marriage. According to
me ‘no'”, Justice Chandrachud weighed in while Fernandes was arguing that making adultery
a criminal offence is violative of dignity under Article 21.

Further he stated that,

“The right to say “no” (to sex) should be there after marriage also”.

Judges on many instances has stood by a woman’s right to say no in the past too.

While pronouncing a five-year jail term to a man for sexually assaulting a nine-year-old girl at
a crowded market in north Delhi, a Delhi High Court judge said that a woman’s body is her
own and it is she who has an exclusive right over it. Others are prohibited to touch her body,
without her consent, the judge added.

Justice A M Badar said, “A woman might be of easy virtue. But that does not mean that all and
sundry can take advantage of this fact. She has a right to say no”.

Although, the judges are supportive of the requirement of consent, still, the judiciary needs to
take a step ahead and consider the same in the case of married women too.

Page | 24
 CONCLUSION

The debate of marital rape is crucial in establishing substantive equality for married women
who are otherwise relegated in public and legal discourse to the confines of their home. It is
crucial to recognise that this is a major lacuna in criminal law at present defeating the
constitutional provisions that grant women equality and autonomy. We propose that it be
specifically highlighted that the relationship of husband and wife between the accused and the
woman will not be a defence, Marriage is a coming together of two individuals with mutual
respect for each other, educating boys and men to view women as valuable partners in life, in
the development of society and the attainment of peace are just as important as taking legal
steps protect women‘s human rights‖ For this to happen, it‘s important to include marital rape
in the ambit of law and educate the society right from the school. The issue of Marital rape is
neglected largely and thus needs our attention. Modern leaders who are supporters of victims
of Marital rape too agree that this act is a form of rape and lays hidden under the cover of
marital privacy. It is not a guard to hide violent acts.

Marital rape is one of the worst types of sexual violence occurring at the level of family. Due
to the nature of the activity and the associated issues of privacy of relationships, internalization
of patriarchal subjugation and most of the times, because of their economic dependency, the
women victims don’t come forward with their sufferings. The patriarchal mind set has led the
law to close its eyes to the plightful misery of the abused wives and the law does not even
recognize marital rape as an offence leave aside providing any penalties in such cases. Marital
rape occurs in all types of marriages irrespective of age, social class, race or ethnicity. A very
meagre and scanty research data is available on the issue and lack of data poses a major
hindrance in the direction of making due efforts by the government and the legislature to
provide effective legal forum to address the traumatized victim’s concerns. The Supreme Court
has recognized rape of a minor wife in very loud terms and has delivered a landmark judgment
suggesting the legislative formula to make child marriages void ab initio. But the major wives
have not been able to win the judicial support so as to get marital rape recognized by the apex
judiciary. The narrow and restrictive definition of rape, which allows for the marital exemption
make the definition of rape, a hollow statement, which provides escape-route for many
perpetrators of sexual violence and the quest for justice remains unquenched.

Page | 25
 BIBLIOGRAPHY

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