Criminalization of marital rape – A boon or a bane?

This paper discusses whether criminalization of marital rape is the most suitable solution for
protection of married women in India. Legally, Indian women are divided into three
categories based on their marital status- single or divorced, separated and married1. While
the first two categories are protected from rape, the law creates an exception for the last
category. Legal protection from marital rape is only accorded to married women below 18
years of age. I intend to draw the attention of the reader to two points with respect to the
legal immunity awarded to the husbands- One, the absence of recognition of the possibility of
non-consensual sexual intercourse by a man with his wife who is above 18 years of age and
second, the reluctance of the judiciary and the legislature to interfere in the holy institution
of marriage. Criminalization of marital rape in India is perceived by many to result in
criminal reform. In the backdrop of this, I argue that criminalization of marital rape will not
be the “magical solution”, instead, I believe that it will create more problems than solutions
for women in India, bearing in mind the patriarchal society that we live in, the attitudes of
the judges towards the institution of marriage and the “impossibility of proving marital
rape.”2 While borrowing the idea from Flavia Agnes, I propose that a better way to achieve
criminal reform is to include rape within the framework of domestic violence.

This paper is divided into three parts. The first part discusses the current position of law on
the issue of marital rape. The second part discusses the international obligations and the JS
Verma Committee Report which has recommended criminalization of marital rape in India.
The third part explores the idea of including marital rape within the framework of domestic
violence, as suggested by Flavia Agnes and analyses the viability of criminalization of
marital rape.

Rape is defined as any non-consensual act of penetration of a “woman’s

vagina/urethra/anus/mouth by the penis/mouth/objects/any other body part manipulated by a
man or irrespective of the consent, when she is below 18 years of age”3 in Section 375 of the
Indian Penal Code after the 2013 amendment. Exception 2 of this section, which is often
referred to as the marital rape exception, states that sexual intercourse/ sexual acts by a man
with his wife is not rape if the wife is above fifteen years of age. On October 11, 2017, the
Supreme Court held this exception as unconstitutional and stated that “sexual intercourse
with a girl child under the age of 18 irrespective of the marital status would amount to rape” 4
but refrained from commenting on the legal status non-consensual sexual intercourse between
a man and his wife who is above 18 years of age. Hence, the law, as it stands today, does not
accord any protection from marital rape to women above 18 years of age.

There are various international law obligations that support criminalisation of marital rape.
This support can be located in international laws that are both general and specific in nature.
The international laws that are general in nature provide/establish the necessity to uphold
right to life, right to equal protection before law and right to human dignity etc. 5 and the laws
that are specific in nature emphasise the duty of the state to protect women against any form
1
Karuna Nundy; https://thewire.in/159074/marital-rape-exception-high-court/
2
Saptarshi Mandal (2014) The Impossibility of Marital Rape, Australian Feminist Studies, 29:81, 255-272,
DOI: 10.1080/08164649.2014.958124
3
Section 375 of the Indian Penal Code.
4
Independent Thought vs Union Of India WRIT PETITION (CIVIL) NO. 382 OF 2013
5
https://thewire.in/36111/indian-exceptionalism-cannot-be-a-valid-excuse-for-india-not-to-criminalise-marital-
rape/
of violence, irrespective of who the perpetrator is.6The Declaration on the Elimination of
Violence Against Women, especially, confers a specific obligation upon the member states to
prevent, punish and investigate acts of violence against women 7. Violence, here, encompasses
marital rape, along with other acts of violence. Apart from international law obligations, even
the J.S. Verma Committee Report recommended criminalising marital rape in Section 375 of
the IPC.
To answer the question posed above, it is important to discuss the viability of criminalisation
of marital rape. The burden of proof on the wife to prove “rape” under IPC is substantially
higher than the burden of proof of domestic violence under PWDVA and cruelty under
Section 498 A of IPC. When a rape charge is filed by the woman, it is difficult to assess the
veracity of the claim in the absence of physical injury. Further, in the case is not ruled in her
favour, there are so many concerns regarding the impossibility of proving “rape” beyond
reasonable doubt in a marital relationship without physical injury and the societal backlash
that the woman might have to face. Also, the “criminal sanction against marital rape” 8might
have an impact on the judges while deciding economic compensation in domestic violence
cases and divorce settlements due to the way the society and the judges perceive sexual
violence and sanctity of the marital relationship.
An analysis of cases brought under Section 9 of the Hindu Marriage Act (which is also a
patriarchal and barbaric provision) reveals the patriarchal attitude of the judges while
adjudicating upon the status of the “holy institution of marriage”. Section 9 of HMA states
that “when either the husband or the wife withdraws from the society without a reasonable
excuse, the aggrieved party may file a petition for restitution of conjugal rights.” Justice
Choudhary9 held that Section 9 of HMA is unconstitutional and opined that this provision can
be used by the man to impose himself on his wife, without her consent or to molest or
sexually abuse her. This case was overruled by the Supreme Court and the constitutionality of
Section 9 was upheld. 10 The judge, in this case, stated that “conjugal rights are not merely a
creation of the statute but is instead inherent in the institution of marriage itself.” 11 He also
opined that Section 9 “serves a social purpose as an aid to the prevention of break-up of
marriage.” 12 This “need to preserve the sanctity of marriage” that is prevalent amongst the
judges will act as a dangerous impediment to any sort of relief that the wife who files a rape
case against her husband is seeking for, which makes the marital rape charge completely
redundant.
According to Flavia Agnes, “the provisions of the civil law of Domestic Violence Act should
be linked to the criminal provision which will help all affected women much more than the
introduction of the charge of marital rape.” 13 In the patriarchal Indian society, women seldom
have the same “status” as a man in a marital relationship. It is important to remember the
“power dynamics” between a man and his wife which results in the “submissive status” of the

6
The International Convention on the Elimination of All forms of Discrimination Against Women (CEDAW),
read with General Comment No. 12
7
https://thewire.in/36111/indian-exceptionalism-cannot-be-a-valid-excuse-for-india-not-to-criminalise-marital-
rape/
8
Ibid.
9
T Sareeta v Venkatasubbiah AIR 1983 AP 356.
10
Saroj Rani v Sudarshan Kumar AIR 1984 SC 1562
11
Ibid.
12
Ibid.
13
Saptarshi Mandal (2014) The Impossibility of Marital Rape, Australian Feminist Studies, 29:81, 255-272,
DOI: 10.1080/08164649.2014.958124
wife, sexually. Sexual abuse or sexual violence in a marriage can occur in various forms like
“excessive demands for sex by the husband during menstruation or immediately after
childbirth, forcing the wife to have sex with the husband’s friends, threatening the wife that
the husband will stop having sex with her if certain demands were not met.” 14 But
criminalisation of marital rape places rape at the top of the hierarchy of sexual offences
amongst other sexual offences. This isolation of rape from other forms of sexual offences
reinforces the patriarchal notion of “penetration of a woman’s vagina is the highest form of
sexual offence.” Such a notion asserts that a man is in a position of power to “penetrate” a
woman’s “vagina” that protects the honour of a woman and that “wife is the property of the
husband.”
Therefore, I believe that a strategy that uses/incorporates both the available criminal law and
the civil law remedies against sexual offences and domestic violence help the women to
achieve favourable relief as opposed to the remedies that could be attained post
criminalisation of marital rape. The Supreme Court should use “purposive interpretation” to
pass a judgment, decree or order that is necessary to do complete justice, which would be
binding on all the lower courts while deciding upon women’s rights issues like abortion, rape,
domestic violence, sexual abuse etc.15 When asked to comment on criminalisation of marital
rape, Flavia Agnes commented, “For a woman who is facing domestic violence, it is equally
violating if her skull is fractured, her spine is broken, her cornea is damaged, liver is injured,
or her vagina is penetrated forcefully. What women object to is the violence involved.” 16 To
give equal importance to every act of sexual abuse committed by the husband in a marital
relationship, “sexual violence in a marriage should be brought within the domestic violence
framework.”17 Hence, in my opinion, criminalization of marital rape is not the best solution to
achieve criminal reform.Therefore, I believe that inclusion of marital rape within the ambit of
domestic violence would be more fruitful and will be a revolutionary step to fight against the
patriarchal norms, patriarchal notions and the power dynamics between the husband and wife
in the marriage.

14
Saptarshi Mandal (2014) The Impossibility of Marital Rape, Australian Feminist Studies, 29:81, 255-272,
DOI: 10.1080/08164649.2014.958124
15
Article 141 and 142 of the Indian Constitution
16
http://www.theweek.in/news/india/dont-criminialise-marital-rape-violence-not-just-forcible-sexual-
penetration-flavia-agnes.html
17
Ibid.