INDEX

1. ABSTRACT…………………………………………………………………………………………..............................3
2. INTRODUCTION……………………………………………………………………………...................................3
3. THE CONCEPT OF MARITAL RAPE…………………………………………………………………………………..3
4. RAPE LAWS IN INDIA AND HOW THEY ARE VOILATIVE OF FUNDAMENTAL RIGHTS………. 4
5. EVOLUTION OF RAPE LAWS AND INTERPRETATION PERSPECTIVE WITH
REGARDS TO MARITAL TAPE…………………………………………………………………………………………..6
6. ARGUMENTS FOR CRIMINALIZATION OF MARITAL RAPE………………………………………………..8
7. CONCLUSION………………………………………………………………………………………………………………..10
ABSTRACT:

India is considered to be the 7th largest nation and is called the most populous democracy in the world.
With such a huge population comes the increasing rate of crimes. Forced prostitution, trafficking,
domestic violence, sexual harassment, rape, murder, robbery, theft, etc. are some of the gruesome
crimes which are increasing at an alarming rate.

Women in India experience most of these atrocities which range from violence and cruelty to rape and
murder. There are many such crimes which can be added to this never-ending list. Rape is one of such
heinous crimes which many women in India are suffering from or survive in a fear of not becoming easy
bait to. While laws against the crime of rape have been made and executed, there always has been an
open loophole which is the non-inclusivity of married women in the definition of rape who are an easy
target of it.

This paper aims to deal with the issue of marital rape and my views on why it should be criminalized in
India. The paper includes interpretation of existing laws on rape and how the same can be interpreted in
a way so as to be inclusive of marital rape and acknowledging the same as a crime.

INTRODUCTION:

Even as we move past 74 years of freedom, women in India do not experience freedom and
independence in its true form and nature and continue to live in a world of oppression and fear. While
on one hand, our country celebrates some glorious judgments on decriminalization of sec 377 of the
Indian Penal Code and criminalizing triple talaq, creating a new basis for the judiciary; on the other
hand, there have been views against the criminalization of marital rape, which is an urgent concern.

Marital rape has received very limited attention until recently. It is and has been a very serious social
issue. The offence of rape is one of the most gruesome crimes inflicted on women. Though not defined
under any law in India, marital rape is one of the most debatable issues. Despite the increasing number
of cases, there is no mention of marital rape in the ambit of Indian law. However, it is to be noted that,
rape, is defined under section 375 of The Indian Penal Code (hereinafter referred to as IPC)

In India, marital rape exists in fact and not by right. It is always hidden behind the curtain of marriage.
The Hon’ble Supreme court of India has opined that India is not ready to consider marital rape as a
crime. Despite pronouncing such forward judgments, the hon’ble court fails to take into account the
atrocities faced by women and the dire need of laws relating to the same.

THE CONCEPT OF MARITAL RAPE:

Whenever one talks about the offence of rape, it is always perceived to be committed by a stranger. One
never thinks of it as an offence in the context of marriage. Any such claims are brought down on the
pretence of conjugal rights. This ideology simply indicates that a woman does not have any rights on her
body and person after marriage.

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Marital rape can be defined as, sexual intercourse between a man and a woman or penetration (vaginal,
oral, or anal) obtained by coercion or, the threat of force or which is non- consensual in nature. The act
of sexual intercourse where the consent of the spouse lacks is the essential element and need not
include any physical violence for it to be considered a spousal rape.

The sole reason for marital rape is the exception clause of rape echoed in IPC which states that sexual
intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape. 1

While in other nations, the offence has been criminalized or the judiciary has recognized it as an offence,
the Indian judiciary seems to have an opposite opinion saying that this subject is bringing a personal
claim, not a public concern and as such, they cannot change the law for one person.

RAPE LAWS IN INDIA AND HOW THEY ARE VIOLATIVE OF BASIC FUNDAMENTAL RIGHTS:

Rape is defined and codified in section 375 of IPC. The section says that:

A man is said to commit “rape” if he—

(a) 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

(b) 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

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

(d) applies his mouth to the vagina, anus, and 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.

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

1
Section 375 IPC, 1860

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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 1. — 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 1.—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.

Section 376 provides for punishment for the crime of rape. According to this section, the offender
should be penalized with imprisonment of either description for a term which shall not be less than 7
years but may extend for life or for a term of 10 years and shall be liable for fine.

Following are the situation when a husband can be prosecuted for an offence of rape:

(a) When the wife is between 12-15 years of age, offence punishable with imprisonment up to 2
years of fine, or both.
(b) When the wife is below 12 years of age, offence punishable with imprisonment of either
description for a term which shall not be less than 20 years but which may extend to life and
shall also be liable to fine or will be punished with death. 2
(c) Rape of a judicially separated wife, offence punishable with imprisonment up to 2 years which
may extend to a period of 7 years and shall be liable for fine.   3   
(d) The rape of a wife of above 15 years in age is not punishable. 4  

Rape laws in India are violative of article 14 & article 21 of the Indian Constitution.

Article 14 of the constitution provides equality of law and equal protection before the law. For article 14
to apply to any law, there must be a reasonable distinction and no scope of arbitrariness in classification.
The differentia must have a rational relation to the object sought to be achieved by the Act. It is

2
Section 376AB IPC, 1860
3
Section 376B IPC, 1860
4
Section 375 IPC, 1860

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necessary that there must be a nexus between the basis of classification and the object of the Act which
makes the classification.

Exception 2 under the said section of rape discriminates between a married and an unmarried woman
which is violative of the fundamental right guaranteed under Article 14. It further makes a distinction
between married women above and under the age of 15. Section 375 deprives a woman of her bodily
autonomy and her personhood.

The exemption takes away the protection of Section 375 of the IPC from a woman based on her marital
status. The classification and discrimination of married women rest on the assumption that married
women, unlike any other persons, have no interest in receiving protection from the State against violent
and sexual assault. The assumption further stems from the fact that in a marriage, the wife is presumed
to have given an irrevocable consent to sexual relationships with her husband. It is submitted that such
an assumption is wrong, irrational, and not based on an intelligible differentia

Article 21 which guarantees the right to life and personal liberty incorporates the right to live with
human dignity. Supreme Court in its various judgments clarified its stand and held that the offence of
rape abuses the right to live with human dignity of the victim.

There are many other enactments passed in India regarding violence against women like laws against
dowry, cruelty, domestic violence, and female infanticide. But the heinous and shameful of all is when a
husband forces himself on his wife. The Protection of Women from Domestic Violence Act, 2005 was
passed which although did not consider marital rape as a crime, did consider it a form of domestic
violence.5 Under this Act, if a woman has undergone marital rape, she can go to the court and obtain
judicial separation from her husband. This is only piecemeal legislation and much more needs to be
done by the Parliament in regard to marital rape.

Also, section 3 of the Act provides protection from conduct that harms, injures, or endangers the health,
safety, life, limb, or well-being of a woman, whether that amounts to mental, physical, sexual, or
economic abuse

EVOLUTION OF RAPE LAWS & INTERPRETATION PERSPECTIVE WITH REGARDS TO MARITAL RAPE:

The Indian judiciary seems to have conveniently ignored the idea that rape cannot take place in any
marriage and is totally impossible as tying knots, according to them clearly means the consensus to
sexual intercourse.

There have been a series of judgments where the courts have been following the literal rule of
interpretation where words of the statue are applied in its ordinary and natural meaning. Application of
literal rule leaves no scope of interpretation and judges cannot apply their knowledge of the law. This
leaves major loopholes in the law and thus undermines public confidence.

5
The Protection of Women from Domestic Violence Act, 2005, Section 3 Explanation 1 (ii).

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Since the institution of the Indian Penal Code, sections 375 and 376 stood unchanged until the 1983
amendments.6 The literal meaning of statues was applied to each case. The 1983 amendments followed
the judgment of the Supreme Court on the controversial case Tukaram v. State of Maharashtra 7
(Mathura gang rape case). Mathura, a sixteen-year-old tribal girl, her boyfriend, Ashoka, and her
brother, Gama was taken to the local police station. Mathura and Ashoka were in a relationship and
were planning on getting married. Mathura's brother, Gama, had filed a kidnapping complaint against
Ashoka. While in custody, Mathura was allegedly raped by multiple inebriated male police officers. In
the controversial Supreme Court ruling, the Court acquitted the officers reasoning that she "did not raise
an alarm, there were no visible marks or injury on her body," and since she had had prior sexual
relations, she was of "loose morals" and may have encouraged the officers to engage in intercourse with
her.

My views: Here the court had clearly applied the literal rule but has failed to apply the statute properly.
It is clear from the statement of facts the two policemen were total strangers to Mathura and that they
were in a position of authority. The court clearly failed to differentiate between passive submission by
the victim and consent, which is an essential element for any sexual intercourse.

Supreme Court in Bodhisathwa Gautam v. Subhra Chakraborthy 8 held that rape is a crime against the
basic human rights and takes away the most cherished of the fundamental rights of the victim. A woman
too has the right to live with dignity, right to privacy, and rights over her own body. Marriage can in no
way take away these rights.

My views: Here the court has applied the golden rule of interpretation which comes into play when the
literal rule leads to an absurdity. The golden rule of interpretation tries to avoid anomalous and absurd
consequences. The grammatical meaning of the words is not taken in the ordinary sense and usually
modified. Here the learned judge has applied his knowledge in interpreting the statute and tried to close
the loophole. The application of the golden rule as opposed to the literal rule, here, has resulted in an
interpretation that marriage cannot take away the right of women to live with dignity and her right to
privacy.

The next wave of changes came after the much talked about Delhi Gang-Rape where a twenty-three-
year-old female physiotherapy intern returning home from a movie with a friend was beaten, brutalized,
and raped repeatedly on the bus by six men. She was penetrated multiple times with a metal rod, which
was pulled out of her with such force that when she arrived at the hospital, only five percent of her
intestines were left inside her. Less than two weeks later, Jyoti Singh died at a hospital in Singapore. The
former Chief Justice of India, Late J.S. Verma established a committee to amend and enhance laws
against rape and sexual assault. Among other recommendations, the committee suggested that the
marital rape exception should be repealed as it originates from the notions of women being the
property of their husbands. A seventh “circumstance” was added for when a woman is unable to

6
Apoorva Ramaswamy, Anti-Rape Laws in India Prior to the Criminal Law Amendment Act 2013 at 1
7
1979 AIR 185, 1979 SCR (1) 810
8
1996 AIR 992, 1996 SCC (1) 490

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communicate consent. This amendment also clarified and solidified the provision that a lack of physical
resistance does not amount to consent. After this case, the scope of interpretation was much wider by
application of the golden rule which lead to the recommendation of removal of exception 2 under
section 375 of IPC.

My views: It is clearly evident from the recommendations proposed by the committee that an effort to
correct the mischief has been made and has been successful to an extent. Hence the amendments. The
use of the mischief rule has lead to better judgment and a wider scope of the statute. The mischief rule
is applied where there is a need to suppress any mischief to advance a remedy. This rule comes into play
when there is an absurdity in the statute. In order to correct the mischief, the 7 th circumstance was
added to section 375 and it was clarified that lack of physical resistance and/or passive submission does
not amount to consent.

The most recent change came through the Supreme Court’s decision under Independent Thought vs.
Union of India in October 2017. 9 The case was filed as a Public Interest Litigation by the non-
governmental organization, Independent Thought, to protect child brides from marital rape. Exception 2
under Section 375 of the Indian Penal Code provides an exemption to rape for men having sexual
intercourse with their wives under the age of fifteen. In Independent Thought, Supreme Court Justices
Madan B. Lokur and Deepak Gupta rationalized that Indian Penal Code, Section 375; Exception 2 should
not apply to child brides between the ages of fifteen and seventeen. The Court held that Exception 2
creates an arbitrary and discriminatory distinction between a married girl child and an unmarried girl
child.

The Supreme Court offered well-supported and rational arguments to defend its decision to change the
exception from “under fifteen years of age” to “eighteen years of age." The Court stipulated that the
distinction between the married girl child and the unmarried girl child is contrary to the spirit of the
Constitution of India, specifically Article 15(3) and Article 21. The concurring judgment also pointed out
the equal protection clause under Article 14 of the Constitution.

Similarly, the Court identifies that the Constitution and the Protection of Human Rights Act, 1993,
guarantee liberty and dignity as protected rights and to allow a man to engage in forced sexual
intercourse with his child bride would be a violation of these rights. The Supreme Court also recognized
the importance of a woman’s autonomy over her own body, her right to bodily integrity, and her right to
privacy.

Furthermore, the Court pointed out the inconsistencies that arise from the fact that husbands can be
charged with lesser sexual crimes while enjoying an exemption from the much more serious crime of
rape. Lesser crimes for which the husband can be prosecuted include intent to outrage her modesty,
sexual harassment, assault or use of criminal force against a woman with the intent to disrobe,
voyeurism, and stalking. There are no marital exception clauses associated with any of these crimes.

9
Independent Thought v. Union of India, (2017) 382 SCC (India)

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Hence the court applied the golden rule of interpretation in increasing the age bar as well as by pointing
out how the current laws were violative of Article 14, 15(3) and 21.

ARGUMENTS FOR CRIMINALIZATION OF MARITAL RAPE:

The IPC has dealt with the forms of rape in a very piecemeal manner. Thus the law which is said to be
the savior of victims is actually inadequate in its very origin. Arguments advanced against the
criminalization of marital rape say that the consent to marry in itself includes the consent to engage in
sexual activity. However basic common sense would justify that the consent to engage in sexual activity
does not mean consensus to sexual violence.

The very definition of rape demands changes and should include a wider perspective. Even international
law now says that rape may be accepted as the “sexual penetration, not just penal penetration, but also
threatening, forceful, coercive use of force against the victim, or the penetration by any object, however
slight.” Article 2 of the Declaration of the Elimination of Violence against Women includes marital rape
explicitly in the definition of violence against women.

The importance of consent for every individual decision cannot be overemphasized. A woman has the
right to protect her right to life and liberty, but not her body, within her marriage, which is very ironic.
The Law Commission of India in its 42nd report put forward the necessity of excluding marital rape from
the ambit of Section 375. In their words naturally, the prosecutions for this offence are very rare. In my
view, it would be desirable to take this offence altogether out of the ambit of section 375 and not call it
rape even in a technical sense. The punishment for this offence may also be provided in a separate
Section.

The 172nd law commission report10 that was passed in the year 2000 recommended the following
substantial changes in rape laws:

a. ‘Rape’ should be replaced by the term ‘sexual assault’.

b. Sexual intercourse as contained in section 375 of IPC should include all forms of penetration
such as penile/vaginal, penile/oral, finger/vaginal, finger/anal, and object/vaginal.

c. Rape laws should be made gender-neutral as custodial rape of young boys has been neglected.

d. Marital rape: explanation (2) of section 375 of IPC should be deleted. Forced sexual intercourse
by a husband with his wife should be treated equally as an offence just as any physical violence
by a husband against the wife is treated as an offence. On the same reasoning, section 376 A
was to be deleted.

10
172nd report of Law Commission of India on Review of Rape Laws, March 2000, Para 3.1.2.1

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 e. Under the Indian Evidence Act, when alleged that a victim consented to the sexual act and it is
denied, the court shall presume it to be so.

This law commission report was submitted over 20 years ago to the Government of India urging that
Parliament should replace the present definition of rape under Section 376 IPC with a broader definition
of sexual assault, which is both age and gender-neutral, and no step whatsoever has been taken on the
same.

A PIL11 before the High Court of Delhi has generated a judicial debate on the constitutionality of
exception 2 to section 375, IPC – the marital rape exemption clause. A division bench of acting Chief
Justice Gita Mittal and C. Hari Shankar J hearing the PIL against the penal code provision noted that
“marital rape is a serious issue, which has notoriously become a part of the culture.”

The RTI Foundation has filed the PIL in 2015 and other individuals and institutions have also approached
the High Court of Delhi challenging the exemption under section 375 as well as section 376B IPC on the
ground that it excludes marital rape as a criminal offence. It has been argued in the PIL that the
exemption is unconstitutional and violates the right of married women under articles 14, 15, 19, and 21
of the Constitution. One of the petitioners has challenged the provisions of Cr PC, which are to be read
with section 376 IPC on the ground that differential procedure, as well as differential punishment, is
prescribed, which s arbitrary and unconstitutional.

The Supreme Court in the case of State of Maharashtra v. Madhkar Narayan 12 has held that every
woman has the right to sexual privacy and it was not open to anyone to violate her privacy as and when
pleased. In the case of Vishakha v. State of Rajasthan 13, the Supreme Court extended this right of privacy
to workplaces. Along the same lines, the court said that there exists a right of privacy to enter into a
sexual relationship even within a marriage. By decriminalizing rape within a marriage, the marital
exemption doctrine violates this right of privacy of a married woman and is hence, unconstitutional.

CONCLUSION:

The continued ignorance of marital rape from the ambit of criminal law has resulted in women being
treated as mere properties. Despite the fact that marital rape receives little public, scholarly, and legal
attention, it is one of the most heinous crimes committed against the dignity of a woman. Marital Rape
has never received the attention of Indian lawmakers. The idea of a woman being raped by her husband
and the fact that she cannot seek protection under any law in India is very disappointing and shameful.
It is an act of domestic violence that cannot be made justifiable based on consent. Some necessary
measures that can be taken are:

11
The PIL has been filed by NGO RTI Foundation challenging that IPC's s. 375 saying that it does not consider
forcible sexual intercourse by a man with his wife, as rape
12
AIR 1991 SC 207.
13
AIR 1997 SC 3011.

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First off, it is imperative that the marital rape exception be entirely eradicated from the Indian Penal
Code. Similarly, the Code should affirmatively define marital rape as a criminal offense, which would also
effectively prevent the marriage from being used as a defense to rape claims.

 Secondly, the punishment for marital rape should be the same as prescribed under Section 376 of the
IPC

Thirdly, lack of resistance on the part of the wife should not serve as a defense to the charge and,

Fourthly, the legal position of marital rape should not only be recognized but also should form a valid
ground for divorce for the wife.

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 sympathy to get marital rape recognized by the apex judiciary.

There is a major scope of development even if the current laws are interpreted in the right manner. This
loophole present in the provisions of rape has costed many lives and would continue doing so if urgent
steps are not taken. Justice has not been served in true sense. The court can conveniently use the
golden and mischief rule of interpretation to make necessary amendments. The narrow and restrictive
definition of rape, which allows for the marital exemption makes the definition of rape, a hollow
statement, which provides an escape route for many perpetrators of sexual violence and the quest for
justice remains unquenched.

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