TABLE OF CONTENTS

1. Abstract ……………………………………………………………………….. 2

2. Introduction ………………………………………………………………….... 3

3. Concept of marital rape ……………………………………………………..… 5

4. Violation of the Fundamental rights ……………………………………..…… 7

5. Landmark judgment of Independent thought v. Union of India [(2017) 10

SCC 800] ………………..…………………………………………………………………10

6. Conclusion ……………………………………………………………….……12

7. Bibliography ……………………………………………………………….….13

8. Plagiarism report ………………………………………………………….......14

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 1.ABSTRACT

Violence is at its worst form when occurs within the family a unit which is supposedly the safest
and the most protected zone in human life. The impact and consequences of family violence are
most devastating when such the perpetrator of such violence is the husband – the man who is
supposed to be the protector and provider of the woman. Unfortunately, the sexual violence is
inflicted by the husbands in the name of irrevocability of consent to matrimonial cohabitation.
The society and the legislature do not even recognize such sexual violence by the husbands,
which seriously impinges upon the status of women in the society and maintains the status quo of
the women’s subjugated position in the family as well as the society.

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 2.INTRODUCTION

Bride tortured to death for dowry”, “School going kid succumbs to his injuries after beaten by
father”, “A seventy year old man killed over property dispute”, “Harassment of men in
Chandigarh…”

All these and what not, turn to any newspaper at random and you would find the reports of such
kind of violence all over the country. These are all what we come to know through different
forms of media. There are more such cases which go unreported every day. In fact, include the
cases which we self-indulge in, or the ones which we witness in the neighbourhood but are
hesitant in taking even a single step to reduce their occurrences.

In our society, violence is bursting. It is present almost everywhere and nowhere is this eruption
more intense than right behind the doors of our homes. Behind closed doors of homes all across
our country, people are being tortured, beaten and killed. It is happening in rural areas, towns,
cities and in metropolitans as well. It is crossing all social classes, genders, racial lines and age
groups. It is becoming a legacy being passed on from one generation to another.

But what does violence mean? “Violence” is destruction, suffering or death, which is
deliberately inflicted for the achievement of a purpose, which is political in nature.1

Violence is a means to demonstrate power, authority or superiority in the societal structure. In

essence, violence is the use or threat of use of force or coercion to establish domination and can
be expressed at the individual level, between classes or communities or at the level of the state.

Sexual violence

"While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the
soul of a helpless female," is the famous quote on this topic.

1
Vandana, Sexual Violence Against Women-Penal Law and Human Rights Perspectives, 3 (2009). Lexis Nexis
Butterworths Wadhwa Publishers, Delhi.

3
Sexual assault on women is a common phenomenon in our country. Under sexual assault comes;
molestation, eve-teasing, child sex abuse, rape, marital rape, domestic violence.
Of all these crimes, Rape is the most violent crime which is committed against women.
According to Section 375 of the Indian Penal Code, Rape means an unlawful intercourse done by
a man with a woman without her valid consent.

Rape outrages a woman's modesty. After a rape incident, a woman lives a pathetic life which
includes fear, depression, guilt complex, suicidal action and social stigma. India is one of the
thirty-six countries that still have not criminalized marital rape.2

In recent times, Rape incidents have increased manifold. According to statistics, two women are
raped in the country every hour. If further statistics are to be believed, every 10 hours a girl of
age 1-10 is being raped in India.

Sexual violence is a complex political phenomenon deep embedded in the socio-cultural milieu.
Sexual violence is one of the most extreme and effective forms of control in a male dominated
society, which simultaneously damages and constraints women’s lives and prompts individual
and collective resistance among women thereby maintaining the status-quo of gender inequality,
subjugation of women and their control.

Sexual violence occurring in the family

While for most of us home and family are the main source of our strength and acts as our guiding
angel. But is it like that for everyone? I guess not.

The family violence is generally hidden under the notions of intimacy of private sphere as the
belief that family integrity should be protected at all costs prevent many women from seeking
outside help.6 The law and criminal justice system generally do not recognise sexual violence
occurring in the family as a separate crime, hence such cases are rarely prosecuted and the
women have no option, but to suffer in silence.

2
Marital Rape in India: 36 countries where marital rape is not a crime, India Today, Mar. 12, 2016.

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 3.CONCEPT OF MARITAL RAPE

Rape

Rape, act of sexual intercourse with an individual without his or her consent, through force or
the threat of force. In many jurisdictions, the crime of rape has been subsumed under that of
sexual assault, which also encompasses acts that fall short of intercourse. Rape was long
considered to be caused by unbridled sexual desire, but it is now understood as a pathological
assertion of power over a victim.

A 'rape' charge under the Section 375 Indian Penal Code has two parts:
 non-consensual penetration of any orifice (vagina, anus, mouth, urethra) in a woman by a
man, OR,
 non-consensual touching of any orifice with the mouth. This is not restricted to having
sex. Forcing a woman to do this to herself, or with someone else, is also rape.
The court will decide that these acts are rape if:
 It happens without her consent, or
 She agrees, but only because she, or someone she knows is in danger, or
 She agrees, but because she thinks the accused person is her husband, or
 She agrees, but she is drugged, or drunk, or mentally ill, or
 She is under 18 - then it does not matter if she agreed or not, or
 She is in no position to indicate whether she agreed or not - for example, if she is
unconscious.
Consent has been clearly defined as a clear, voluntary communication that the woman agrees to
the specific sex act, leaving no room for debate. It also makes it clear that absence of physical
injuries is immaterial for deciding consent.

Concept of marital rape

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

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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.

The definition of rape, as recognised by the majority of legal systems, does not go beyond the
parameters of a patriarchal value system, reflects old notions of chastity, virginity, marital ties
and emphasises the fear of female sexuality. The legal definition of rape in most countries is
limited to non-consensual or forced vaginal penetrations and exempts a particular class of males
husbands, who cannot be charged with the rape of their own wives.

As we have seen the definition of rape stated in Section 375 of the Indian Penal Code includes all
forms of sexual assault involving nonconsensual intercourse with a woman. However, Exception
2 to Section 375 exempts unwilling sexual intercourse between a husband and a wife over fifteen
years of age from Section 375’s definition of “rape” and thus immunizes such acts from
prosecution. As per current law, a wife is presumed to deliver perpetual consent to have sex with
her husband after entering into marital relations. While unwilling sexual contact between a
husband and a wife is recognized as a criminal offense in almost every country of the
world, India is one of the thirty-six countries that still have not criminalized marital rape. The
Supreme Court of India and various High Courts are currently flooded with writ petitions
challenging the constitutionality of this exception, and in a recent landmark judgment, the
Supreme Court criminalized unwilling sexual contact with a wife between fifteen and eighteen
years of age. This judgment has in turn led to an increase in other writs challenging the
constitutionality of Exception 2 as a whole.

The definition of Marital rape

The definition Marital rape can be defined as any unwanted sexual intercourse or penetration
(vaginal, anal, or oral) obtained by force, threat of force, or when the wife does not consent. One
of the very peculiar implications of the narrow and restricted definition of rape is that it cannot
be committed against a particular set of women – a married woman cannot be raped by her own
husband. Further, the implication of this loophole is that violent and unwanted sex does not
necessarily define rape rather it is illegal sex, i.e., sexual assault by a man, who has no legal

6
rights over the woman 7 . In other words, in law’s eyes, violence in a legal sexual intercourse is
permissible, but sexual relations with a woman, who is not one’s property is not.

4. VIOLATION OF THE FUNDAMENTAL RIGHTS

Violation of Article 14 of the Indian Constitution

Article 14 of the Indian Constitution ensures that “the State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India.” Although the
Constitution guarantees equality to all, Indian criminal law discriminates against female victims
who have been raped by their own husbands.

At the time the IPC was drafted in the 1860s, a married woman was not considered an
independent legal entity. Rather, she was considered to be the chattel of her husband 3. As a
result, she did not possess many of the rights now guaranteed to her as an independent legal
entity, including the right to file a complaint against another under her own identity. Exception 2,
which essentially exempts actions perpetrated by husbands against their wives from being
considered acts of “rape,” is largely influenced by and derived from this already existing doctrine
of merging the woman’s identity with that of her husband.

The roots of this doctrine can be traced to British colonial rule in the Victorian era India was a
British colony during the 19th century. All Indian laws enacted at this time were deeply
influenced by English laws and Victorian norms. The marital exception to the IPC’s definition of
rape was drafted on the basis of Victorian patriarchal norms that did not recognize men and
women as equals, did not allow married women to own property, and merged the identities of
husband and wife under the “Doctrine of Coverture.”

But times have changed. Indian law now affords husbands and wives separate and independent
legal identities, and much jurisprudence in the modern era is explicitly concerned with the
protection of women. This concern is evident in the plethora of statutes intended to protect
women from violence and harassment that have been passed since the turn of the century,

3
To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99(6) Harv. L. Rev. 1255,
1256 (1986).

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including “The Protection of Women from Domestic Violence Act” and the “Sexual Harassment
of Women at Workplace (Prevention, Prohibition and Redressal) Act.”

Exception 2 violates the right to equality enshrined in Article 14 insofar as it discriminates

against married women by denying them equal protection from rape and sexual harassment. The
Exception creates two classes of women based on their marital status and immunizes actions
perpetrated by men against their wives. In doing so, the Exception makes possible the
victimization of married women for no reason other than their marital status while protecting
unmarried women from those same acts.

Exception 2’s distinction between married and unmarried women also violates Article 14 insofar
as the classification created has no rational relation to the underlying purpose of the statute.
In  Budhan Choudhary v. State of Bihar 4 and State of West Bengal v. Anwar Ali Sarkar5, the
Supreme Court held that any classification under Article 14 of the Indian Constitution is subject
to a reasonableness test that can be passed only if the classification has some rational nexus to
the objective that the act seeks to achieve. But Exception 2 frustrates the purpose of Section 375:
to protect women and punish those who engage in the inhumane activity of rape. Exempting
husbands from punishment is entirely contradictory to that objective. Put simply, the
consequences of rape are the same whether a woman is married or unmarried. Moreover, married
women may actually find it more difficult to escape abusive conditions at home because they are
legally and financially tied to their husbands. In reality, Exception 2 encourages husbands to
forcefully enter into sexual intercourse with their wives, as they know that their acts are not
discouraged or penalized by law. Because no rational nexus can be deciphered between the
classification created by the Exception and the underlying objective of the Act, it does not satisfy
the test of reasonableness, and thus violates Article 14 of the Indian Constitution.

Violation of Article 21  

Exception 2 is also a violation of Article 21 of the Indian Constitution. Article 21 states that “no
person shall be denied of his life and personal liberty except according to the procedure

4
1955 AIR 191
5
1952 AIR 75, 1952 SCR 284

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established by law.” The Supreme Court has interpreted this clause in various judgments to
extend beyond the purely literal guarantee to life and liberty. Instead, it has held that the rights
enshrined in Article 21 include the rights to health, privacy, dignity, safe living conditions, and
safe environment, among others.

Most recently, the Supreme Court has explicitly recognized in Article 21 a right to make choices
regarding intimate relations. In Justice K.S. Puttuswamy (Retd.) v. Union of India 6, the Supreme
Court recognized the right to privacy as a fundamental right of all citizens and held that the right
to privacy includes “decisional privacy reflected by an ability to make intimate decisions
primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate
relations.”Forced sexual cohabitation is a violation of that fundamental right. The above rulings
do not distinguish between the rights of married women and unmarried women and there is no
contrary ruling stating that the individual’s right to a privacy is lost by marital association. Thus,
the Supreme Court has recognized the right to abstain from sexual activity for all women,
irrespective of their marital status, as a fundamental right conferred by Article 21 of the
Constitution.

Additionally, Exception 2 violates Article 21’s right to live a healthy and dignified life. As
mentioned above, it is well settled that the “right to life” envisaged in Article 21 is not merely a
right to exist. For example, there can be no dispute that every citizen of India has the right to
receive healthcare or that the state is required to provide for the health of its constituents. In this
vein, the courts have repeatedly held that the “right to life” encompasses a right to live with
human dignity. Yet the very existence of Exception 2, which fails to deter husbands from
engaging in acts of forced sexual contact with their wives, adversely affects the physical and
mental health of women and undermines their ability to live with dignity.

The court held in Haree Mohan Mythee case7 that husband does not have the absolute right to
enjoy the person of his wife without regard to the question of safety of her. As per this decision,
the only circumstances where the law recognises the encroachment upon husband’s absolute
right to sexual intercourse is when it becomes extremely dangerous to woman due to some
6
(2017) 10 SCC 1
7
(1890) 18 Cal. 49.

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physical illness etc. and grave consequences like death may follow. 8 In Suchita Srivastava v.
Chandigarh Administration, the Supreme Court equated the right to make choices related to
sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under Article
21 of the Constitution.9

5. LANDMARK JUDGMENT OF INDEPENDENT THOUGHT VS. UNION

OF INDIA

Facts

The petitioner is a society registered on 6th August, 2009 and has since been working in the area
of child rights. The society provides technical and hand-holding support to non-governmental
organizations as also to government and multilateral bodies in several States in India. It has also
been involved in legal intervention, research and training on issues concerning children and their
rights. The society has filed a petition under Article 32 of the Constitution in public interest with
a view to draw attention to the violation of the rights of girls who are married between the ages
of 15 and 18 years.

According to the petitioner, Section 375 of the IPC prescribes the age of consent for sexual
intercourse as 18 years meaning thereby that any person having sexual intercourse with a girl
child below 18 years of age would be statutorily guilty of rape even if the sexual activity was
with her consent. Almost every statute in India recognizes that a girl below 18 years of age is a
child and it is for this reason that the law penalizes sexual intercourse with a girl who is below 18
years of age. Unfortunately, by virtue of Exception 2 to Section 375 of the IPC, if a girl child
between 15 and 18 years of age is married, her husband can have non-consensual sexual
intercourse with her, without being penalized under the IPC, only because she is married to him
and for no other reason. The right of such a girl child to bodily integrity and to decline to have

8
(2003) EWCA Crim 1512, May 7, 2004 In this case, when eleven years old wife was subjected to forcible sexual
intercourse by the husband, she died of vaginal ruptures and profuse bleeding
9
Suchita Srivastava v. Chandigarh Administration, (2008) 14 SCR 989 (India)

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 sexual intercourse with her husband has been statutorily taken away and non-consensual sexual
intercourse with her husband is not an offence under the IPC.

Judgement

The Division Bench while deciding whether a husband commits the offence of rape if he has
sexual intercourse with her wife, who is between 15-18 years of age, commented as follows:

 The Exception 2 of IPC creates an artificial distinction between a married girl child and
an unmarried girl child without any reasonable nexus. The artificial distinction is contrary to
both Article 15(3) and Article 21 of the Constitution. No other provision in penal laws gives any
immunity to the husband. It also violates the bodily integrity and reproductive choice of the girl
child and has no measures for trafficking of a girl child. Therefore, it is being arbitrary and
discriminatory hindering the best interest of the girl child.
 The parliament has increased both the age of marriage and age of consent from time to
time. Currently, a girl child is neither eligible to marry nor give a consent before 18 years. When
age has been raised in all the other laws then Exception 2 by keeping the age of consent for a
wife 15 year, has become unreasonable, unjust, unfair and violative of the rights of the girl child.
Therefore, it is arbitrary and should be set aside.
 The Exception 2 should be read down as follows to make it consistent with the
constitution:“Sexual Intercourse or Sexual acts by a man with his own wife, the wife not being
18 years, is not rape.”

 The issue before the Court is only of marital rape of the girl who is below 18 years and
not that of above 18 years. So, the judgement should not be observed in any way for commenting
on the issue of "marital rape" of an adult girl.10

10
Madan B. Lokur, J in 2017 SCC OnlineSC 1222 [Writ petition (C) no.382 of 2013] at 2.

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 6. CONCLUSION

It has been concluded that Indian laws have failed to provide a proper protection to women as
earlier as the women are still treated as the property of husband and he has all the rights to
exploit her and no remedies have been provided. Though a husband’s violent and non-consensual
act of intercourse may entitle a wife to bring an action for criminal assault, the incorporation of
the principal of liability for marital rape in our penal laws is not present. This prima facie
violates Article 14 and 21 of the Indian Constitution.

Along with that the present government’s reactionary stand that criminalizing marital rape
would “destabilize the institution of marriage” and could become an easy tool to “harass
husbands” in RIT Foundation vs. Union of India, which is pending before the Delhi high court, is
utterly disappointing.

Non-criminalization of marital rape is the major concern in the Indian legal system. In order to
protect the women, the Judiciary should take initiatives to safeguard them. Married women
should be taken proper care and they should not be subjected to sexual assault or violence.

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 7. Bibliography

1.Marital Rape in India: 36 countries where marital rape is not a crime, India Today, Mar. 12,
2016.

2. To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99(6)
Harv. L. Rev. 1255, 1256 (1986).

3. Jill Elain Hasday, Consent and Contest: A Legal History of Marital Rape, 88 Calif. L. Rev.
1373 (2000).

4. Protection of Women from Domestic Violence Act, 2005, No. 43, Acts of Parliament, 2005
(India); Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)
Act, 2013, No. 14, Acts of Parliament, 2013 (India).

5. as “Right to abstain” from sexual intercourse is a long recognized principle of Indian

Constitutional jurisprudence .

6. Regional Director ESI Corpn. v. Francis de Costa, 1993 Supp (4) SCC 100; 5 D.D. Basu,
Commentary on the Constitution of India, 4711 (LexisNexis 2015).

7. The Indian Penal Code, K Kannan and Anjana Prakash, Ratanlal Dhirajlal, Lexis Nexis, 36 th
edition.

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