GITARATTAN INTERNATIONAL BUSINESS SCHOOL

DELHI-110085
Batch (2016-2021)

PROJECT OF SBT

Submitted by: DHRUV SHARMA

Roll No: 01319103516
Submitted to: Mrs Shivangi Sharma
 MARITAL RAPE

The term rape has been derived from the Latin term ‘raptus’ which basically means
the act of damaging or destroying the property of another man. The term property
primarily means the daughter or wife of another man.

According to section 3751, 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 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.

1 Section 375 of the Indian Penal Code, 1860

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.

But, According to exception 2 of section 375, the sexual act or intercourse of a man
with his own wife will constitute rape if she is not under the age of fifteen years.
Thus, marital rape is considered as only if the spouse in under the age of the fifteen
years and also the punishment is also milder. The spouse doesn’t have any sexual
security after the age of fifteen years which is against the human rights.
The term marital rape as the name suggest is the rape caused to a spouse by her
husband. It basically refers to the actual use of threat or use of force by the husband
against his wife for sexual intercourse. The term marital rape is also known as
conjugal rape or wife rape because it has taken place when the wife is compelled to
enter into sexual intercourse in a situation when she is unable to express her consent.
The issue of marital rape is largely neglected. In the male dominant society , it has
come from time to time and granted the husbands the exemption in cases of case of
marital rape based on the assumption that the wife has given herself to the husband
through the contract of marriage. However the modern leaders in support of the
victims of marital rape says that the marital rape is also a form of rape and the marital
status of the women cannot be used as the defence in a crime of rape. It is a also a
form of rape that remains hidden under the cover of marital privacy and that gives
both the husband and wife the right to protect the private acts that they both enter in
with consent and it is not allowed to hide the violent acts.
According to F.H Batacan “ Her friend used to tell her that it wasn't a rape if the man
was your husband. She did not say anything but inside she seethed; she wanted to take
a knife to their faces. ”
According to Sushan B. Anthony “The day will come when men will recognize
woman as his peer, not only at the fireside but in councils of the nation. Then, and not
until then, will there be the perfect comradeship, the ideal union between the sexes
that shall result in the highest development of the race.”
Today various National have either established marital rape laws or revoked marital
rape special cases or have laws that do not recognise marital rape and Ordinary rape.
This demonstrate that marital rape is currently perceived as an infringement of
Human Rights only. The marital rape is the infringement of the basic human ideal and
individual freedom. It is not correct to consider that sex with spouse is husband’s
privilege given to him in marriage. It is demonstrated that the marital rape is more
traumatic and have severe physical and mental effects.
Theories of the marital rape
There are various authors which have come from time to time and have different
theories regarding the marital rape.
1. The feminist theory : This theory considers marital rape as a tool in the hand of
the men in a patriarchal society by which they exercise control over women. The
authors of the theory views that the marital rape is nothing but a result of a power
play by the male spouse in the marriage. The radical feminist also gone to the
extent of arguing that any form of heterosexual intercourse is based on the Desire
of the men and is another form of oppression on women. Society consider women
as the property of the men.
2. The Social constructionism theory: The authors of the social constructionism
theory views that the men has dominated the society in the area of law making and
political arena since the ancient times. The law reflects the dominance of men in
society. Such laws considers the women as the property of their husband. That’s
why marital rape is considered as less offensive then rape. Some authors also
considers marital rape as no rape. The social constructionists believe that “marital
rape is a means through which men try to assert themselves over their wives so as
to retain their long gained power over their property.”
3. The sex role socialization theory: The Authors of this theory believes that it is a
particular gender roles which guide the sexual interactions between men and
women. In our society, women are taught to be calm, submissive and passive
while men are taught to be aggressive and dominant. Thus care and love are the
attributes of women while men are the major perpetrators of sexual entertainment
with violent themes.
Types of Marital Rape
1. Sexual intercourse by non-physical: It involves social coercion which the wife is
compelled to to sexual intercourse by reminding her of her duty as a spouse. It
 involves non physical techniques and verbal pressure in order to get sexual
contact with the wife. It includes false promises, lies, threatening to end up the
relationship etc. These techniques are considered as less severe as compared to the
physical coercion methods,
2. Forced sex: It involves the use of physical force in order to do sexual intercourse.
This can be further categorised in 3 categories:
a. Battering rape: This type of marital rape involves the use of aggression and
force against the spouse. The women are either battered during the sexual
intercourse itself or face a violent aggression after the coerced sexual
intercourse. The beating may also occur before the sexual assault so as to
compel her into sexual intercourse.
b. Force only rape: In this form of marital rape, the husband doesn’t batter the
wife but uses as much force necessary to enter the sexual intercourse with the
consent of the wife.
c. Obsessive rape: This form of marital rape involves the use of force in sexual
assault accompanied with the perverse act against the wife. It involves a kind
of sadistic pleasure enjoyed by the husband.
Marital rape and laws in India
Marital rape is not an offence in India, section 375 the provision relating to rape in
IPC mention the exception clause in which it is stated that the sexual intercourse by a
man with his own wife and if the wife is not under the age of 15 year then it will not
constitute to an rape. Thus, marital rape is considered as only if the spouse in under
the age of the fifteen years and also the punishment is also milder. The spouse doesn’t
have any sexual security after the age of fifteen years. According to IPC, the cases in
which the husband can be legally prosecuted are as under:
a. When the wife is between the age of 12- 15 years, then the offence is punishable
with imprisonment for a term of 2 years and fine.
b. When the spouse is under the age of 12 years, then the offence is punishable for a
term which is not less than 7 years and may extend to life imprisonment.
c. When the spouses are judicially separated, the offence is punishable with the
imprisonment upto 2 years or fine or both.
In 2005 the protection of women from domestic violence act 2005 was passed which
considers marital rape as a type of a violence. By this legislation of this act, a wife can
go to the court and can get legal partition from her husband for marital rape. Marital
rape is not acceptable as the lady is raped as well as her affection and trust is also
damaged. The human rights of the wife are relinquished at the holy place of marriage.
However the law to protect the interest of the wife are lacking and deficient and this is
not acceptable. The very meaning of the rape under section 375 of IPC should be
changed. The main defence for the ladies to protect the interest is Section 498 A of
the IPC. The question arises whether the 'marriage is a permit to rape',there is no
answer on this ground and the Judiciary and the legislature are quite on this question.
Right to live with human dignity

Case: Francis Corallie Muin v. Union territory of Delhi2

In the case, the article 21 of Indian constitution was highlighted. In this case it was
held that the right to live with human dignity is under article 21 and all that
accompanies it to be specific, the minimum essential of life on example adequate
nutrition clothing shelter and facilities for writing reading etc. The right to live with
human dignity is a standout among the most fundamental component of the right to
life which percieves the independence of a person.
The Supreme Court has held in number of cases that the offence of rape is abuse of
the right to life and the right to live with human dignity of the victim of the crime of
rape. One of the of example is Case :Railway Board versus Chandrima Das3, the
supreme court held that rape is not just a crime but it is a crime against the whole
society. The court held that rape is to lesser degree a sexual offence than a
demonstration to hostility gone for corrupting and mortifying the ladies. In this
manner the marital exception principle is violative of spouse’s entitlement to live with
human dignity. Any law which damages entitlement to live with human dignity along
with this line is unlawful.
Right to sexual privacy
Right to privacy is not mentioned in Indian constitution but in the series of cases like
Kharak Singh v. State of UP4, the Supreme Court has perceived that the right to
privacy intrinsically ensured under article 21. The right to privacy under article 21
incorporate a right to be allowed to sit unbothered and not aggravated. Any type of
intense sex damages the right of protection of sexual security.

2 1981 AIR 746, 1981 SCR (2) 516

3 AIR 2000 SC
4 1963 AIR 1295, 1964 SCR (1) 332
In the case of State of Maharashtra vs Madhkar Narayan5, the Supreme court held
that every woman is entitled to her sexual privacy and it is not open to for any and
every person to violate her privacy as and whenever he wish.
JUDICIAL STAND
In Sreekumar v. Pearly Karun6, the Kerala High Court watched that the offence
under section 376 IPC won't be pulled in as the spouse is not living independently
from her husband under a declaration of partition or under any other custom
regardless of the possibility that she is liable to sex by her better half without wanting
to and without her Assent. For this situation the spouse was subjected to sex without a
her will by her husband when she went to leave respectively with her husband for two
days as result of settlement of separation procedures which was going ahead between
the two parties. Subsequently the spouse was held and not liable of raping his wife
however he had done as such.
In Sakshi v. Union of India7, the Supreme Court had recognized the inadequacies
regarding the law relating to rape and had suggested that the legislature should bring
about changes in the law. After passing the criminal law amendment bill, 2013 rape
was redefined as the most horrific events where the parliament by an amendment tried
to enlarge the ambit of rape and the perception by making oral and anal acts as
amounting to rape. The Domestic Violence Act, 2005 has provided various civil
remedies and various provisions such as the cruelty and other matters are dealt under.
There is a large number of victims under the marital rape scenario is being increased
but the legislature is ignorant to criminalize such an offense. The women are ignorant
of what the actual scenario is and the laws which are prevailing in the Indian penal
code for them.
Conclusion
it was concluded that the Indian laws have failed to provide a proper protection to
women and the women are still treated as the property of the husband and he has all
the rights to exploit her and no remedies have been provided against the husband's
violent and non consensual act of intercourse may entitle a wife to bring an action for

5 AIR 1991 SC 207, 1991 (61) FLR 688

6 1999 (2) ALT Cri 77, II (1999) DMC 174
7 Writ Petition (crl.) 33 of 1997
criminal assault. It prima facie violates article 14 and 21 of the constitution. In order
to protect the rights of women, the judiciary should take initiatives to safeguard them.