Statement of Facts

Javed and Swati aged 24 and 21 respectively were in a relationship and wanted to marry each
other despite much protest from their families. On persuasion by Javed, Swati converted her
religion and was given the name Shazia post which they tied the knot on 21st August 2016.
However, soon they started having regular fights owing to issues in their marital relations one of
which being her in-laws asking her to resign from her job. On 15th September, 2020 Javed, in a
fit of rage, in front of everyone pronounced Talaq thrice on Shazia after both got into a heated
argument in the family function held at Javed’s place. Right after which Shazia left for her place
and denied all sorts of communication while she sought more time to evaluate their relationship.
However, on the very evening of 21st November 2020, Javed in an intoxicated state visited
Shazia’s place and lost his control and forced himself upon Shazia against her will and consent
after both got into a heated argument. Shazia, being alone, feared for her life and did not resist
much and therefore surrendered to the will of Javed. Later, (On 22nd November 2020), a
complaint against Javed for committing Rape with Shazia was lodged in the nearest police
station by Shazia’s family. The police registered the FIR against Javed for the offence of Rape
under section 375 and cruelty under section 498A, Assault or use of Criminal Force to woman
with intent to outrage her modesty under section 354, Voluntarily causing Grievous Hurt under
section 322 under the Sind Penal Code. Later on 28th May 2021 the trial court in its judgement
held that the accused was guilty for the offence cruelty under section 498A and convicted for two
years imprisonment and a fine of Rs. 10,000 was imposed and outraging the modesty of women
under section 354, convicted for one-year simple imprisonment and held guilty for other offences
related to women and convicted for 5 years imprisonment and fine of Rs 10000/- was imposed
on Javed.

ISSUE BEFORE THE COURT LIES AS …

WHETHER THE OFFENCE OF MARITAL RAPE BE CRIMINALIZED?
1. Marital Offence not an offence under law
2. Alternative remedies available
3. Infringement of privacy by court
4. Proving the offence is difficult
 Marital Offence not an Offence under Law

1.1 Marital rape should not be made as an offence as we live in a society where marriage is a
sacred institution. It forms the bedrock of our society.

Section 2 of the Hindu Marriage Act of 1955 states that this law applies to anyone who is a
Hindu by birth or who has changed his religion to any of its forms, such as Virashaiva,
Lingayat or follower of Brahmo, Prarthana. or Arya Samaj. Anyone who is a Buddhist, Jain,
or Sikh is also subject to this law. It also applies to any person living outside this territory,
unless he is a Muslim, Christian, Parsi or Jewish by religion or it is shown that such person is
governed by Hindu law.

According to Muslim Law: Islam, unlike other religions is a strong advocate of marriage.
There is no place of celibacy in Islam like the Roman & nuns. The Prophet has said there is
no Celibacy (the state of abstaining from marriage or sexual relations) in Islam. Marriage
acts as an outlet for sexual needs & regulates it so one doesn’t become slave to his/her
desires. It is a social need because through marriage, families are established and the families
are the fundamental entity of our society. Furthermore marriage is the only legitimate or
halal way to indulge in intimacy between a man and woman.

1.2 Historically, The common law system which was adopted in the British colonies like India
includes the “Implied Consent Theory” of Sir Matthew Hale published in 1736 in the History
of Pleas of the Crown. Which says that, ‘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 up herself in this kind unto her husband, which she cannot retract.’1

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1.3 The Centre said in the affidavit that marital rape has not been defined in a statute or law,
while the offence of rape is defined under section 375 IPC. Hence, defining marital rape
would call for a broad based consensus of the society.

Rape is defined under the Sec 375 of The Indian Penal Code, 1860, where the act is
mentioned, and its punishment is specified under Sec 376 of The Indian Penal Code, 1860.
But the law comes with an exception. The exception to Sec 375 says that sexual intercourse
by a man with his wife not being under 15 years of age is not 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

1.4 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.
1.5 Exception 2 of Sec 375 of the IPC states that “Sexual intercourse or sexual acts by a man
with his own wife, the wife not being under fifteen years of age, is not rape.”

1.6 Also merely deleting the exception which provides protection to husbands from prosecution
for the offence of rape may not stop marital rape. As “Moral and social awareness” plays a vital
role in stopping such an act, it added.

1.7 In 2012, J.S.Verma Committee presented a report and

suggested for criminalizing marital rape 2.But it was refused to
be accepted on the grounds that entire family system will be
under greater stress and the committee may perhaps be doing
more injustice3 Lastly, It also referred to the reports of Law
Commission and Parliamentary Standing Committee on Home
Affairs, saying they have examined the matter and did not
recommend criminalisation of marital rape.4

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 2. Alternative Remedies Available.

2.1 The other reason why the suggestions of J.S. Verma

committee was rejected was 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 Sec 498A of the IPC. There are other
remedies provided in the Protection of Women from Domestic
Violence Act, 2005 (‘PWDVA, 2005’) and various other
personal laws dealing with marriage and divorce