Summer Internship Program 2022

Student’s Name: Muskan Gangwar

Enrolment No: 17FLICDDN02078

Batch Name & Year: BA.LL.B(HONS)

2017-2022

Project Title: Marital Rape and new developments

Submitted By:- Submitted To:

Muskan Gangwar Mr. Abhishek Kukreti

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Index
Content Page no.

List of Abbreviation 3

Introduction 4

172nd Law Commission Report on Marital 5

Rape

Report of Justice Verma Committee on 5,6

marital rape-

6
Marital Rape under Domestic Violence Act,
2005

Violation of Article 14 of the Indian 7

Constitution

Violation of Article 21 8,9

RIT Foundation V Uoi 10-11

Bibliography 12

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LIST OF ABBREVIATIONS

SC Supreme Court

SCC Supreme Court Cases

SCC (Jour) Supreme Court Cases (Journal)

AIR All India Reporter

Anor  Another

S. Section

V. Versus

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Introduction-

It’s 2020 and India remains one of 36 countries where it is not a crime for a man to rape a
woman — as long as they are married.

This asterisked exception features in Section 375 of the Indian Penal Code that defines rape
as a criminal offense. A man commits rape if he has sexual intercourse with a woman against
or without her consent, or if she is a minor. (The legal age of valid consent is 18 in India.)
However, Exception 2 to Section 375 exempts unwilling sexual intercourse with a wife over
fifteen years of age from this definition of rape, thus making it legal for men to rape women
— who happen to be their wives — aged 15 and above.

Rape is an offence under Section 375 of the Indian Penal Code, but marital rape is an
exception to the same. Marital relationship in India is highly revered and marriage is the most
respected institution in our culture. These sentiments towards marriage can be considered as
the major reasons for making marital rape as an exception under section 375 of IPC. Further,
it is also believed that the consent for sexual intercourse with the wife is obtained by the
husband when she has consented for the matrimonial relationship with him.

Exception 2 of Section 375-

The definition of rape provided under section 375 states that if a man forcefully commits
penetration into the private parts of a woman, then it is rape. However, the same provision
under exception 2 gives protection to the married man who can commit sexual acts with his
wife who is above the age of 15 years. This provision provides an exemption from the
criminal liability to a married man can be understood that marital rape is not an offence under
the Indian Penal Code.

The exception thus neglects the consent of a woman of age 15 years and above for sexual acts
by her husband. The exception clearly specifies that any sexual intercourse or sexual acts by
husband with his wife who is above the age of 15 years does not amount to rape. Therefore,
the term marital rape is not recognised under the IPC.

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172nd Law Commission Report on Marital Rape-

The exception 2 of Section 375, IPC which legalises all sexual acts by the husband, whether
forced or not, has been widely criticised. This criticism made the Law Commission to
consider the need for change with respect to marital rape. But the 172 nd Law Commission
Report in 2000 though recommended for reducing the age of wife considered under the
exception 2 of Section 375 did not recommend for criminalising the forced sexual acts by the
husband with his wife. The reason stated in the report was to avoid excessive interference
with the marital relationship.1

This Report of the Law Commission was made upon the directions of the Supreme Court
given in the case of Sakshi v. Union of India2. The petitioners in Sakshi v. Union of
India3pleaded that forceful sexual intercourses and sexual acts by husband with his wife
should be considered as an offence under Section 375 and the Court should provide a
definition of ‘sexual intercourse’ mentioned under Section 375 of IPC.

Report of Justice Verma Committee on marital rape-

Justice Verma Committee Report discussed the need for change in law related to the offences
against women. The Report considered the observation of the European Commission of
Human Rights in C.R. v. UK4 that, rapist must be considered as a rapist regardless of his
relationship with the victim.

Further, the Report also considered the recommendations made by the UN Committee on the
Elimination of Discrimination against Women (CEDAW Committee) in February 2007.
CEDAW Committee had recommended that the Indian Penal Code should widen the
definition of rape and should remove the exception of marital rape5.

1
172nd Law Commission Report, March 2000, Chapter three, pp. 19 to 38.
2
2004 (5) SCC 518
3
ibid
4
C.R. v UK Publ. ECHR, SerA, No. 335-C
5
The Report of Justice J. S. Verma Committee, 2013, paragraph 15, p 62
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Thus, relying on the evolution of criminal jurisprudence in various jurisdictions on the
concept of criminalising marital rape, the Report recommended that the exception 2 under
Section 375 of IPC needs to be removed and husbands who commits sexual intercourse with
their wives without her consent should be punished for rape under Section 376 of IPC.

In the case of Independent Thought v. Union of India 6, the Supreme Court dealt with the
aspects of marital rape in cases where wife is of the age between 15 to 18 years. The Court
recognised the recommendations made by the Justice Verma Committee Report. The Court
held that Exception 2 to Section 375 of IPC should be read as sexual intercourse or sexual
acts by the husband with his wife who is above the age of 18 years is not rape. The Court
further clarified that it shall not decide anything upon the issue of marital rape of adult
women.

Therefore, this judgment of the Apex Court increased the age of wives from 15 years to 18
years under the exception 2 to Section 375 of IPC. But did neither criminalise marital rape
nor gave a solution to adult married women in cases of marital rape. This judgment has in
turn led to an increase in other writs challenging the constitutionality of Exception 2 as a
whole. In light of ongoing litigation, this Article critically analyses the constitutionality of
Exception 2.

Marital Rape under Domestic Violence Act, 2005-

The Protection of Women against Domestic Violence Act, 2005 considers sexual abuse as
domestic violence under section 3(a). Further, under Explanation-I provided for Section 3,
the Act specifies that sexual abuse shall include any conduct of sexual nature which degrades,
humiliates or affects the dignity of woman.

Therefore, though marital rape is not considered as an offence under the Indian Penal Code,
the Domestic Violence Act considers sexual abuse by husband as domestic violence against
the wife. But the proposal before the Parliament to criminalise marital rape is still valid as no
rapist should be exempted from criminal liability in case of rape in the name of marital
relationship, because violating the privacy of a woman cannot be legalised with marriage.

6
2017 (10) SCC 800
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Violation of Article 14 of the Indian Constitution-

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 7and State of West Bengal v. Anwar Ali
Sarkar8, 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.

7
Budhan v. State of Bihar, AIR (1955) SC 191 (India).
8
State of West Bengal v. Anwar Ali Sarkar, AIR (1952) SC 75 (India)
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Violation of Article 21-

Exception 2 is also a violation of Article 21 of the Indian Constitution. 9 Article 21 states that
“[n]o person shall be denied of his life and personal liberty except according to the procedure
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.

In recent years, courts have begun to acknowledge a right to abstain from sexual intercourse
and to be free of unwanted sexual activity enshrined in these broader rights to life and
personal liberty. In The State of Karnataka v. Krishnappa, the Supreme Court held that
“[s]exual violence apart from being a dehumanizing act is an unlawful intrusion of the right
to privacy and sanctity of a female.” 10In the same judgment, it held that non-consensual
sexual intercourse amounts to physical and sexual violence. Later, 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.11

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,
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.”12 Forced sexual cohabitation is a violation of that fundamental

9
India Const. art. 21
10
The State of Karnataka v. Krishnappa, (2000) 4 SCC 75 (India)
11
Suchita Srivastava v. Chandigarh Administration, (2008) 14 SCR 989 (India)
12
Justice K.S. Puttuswamy (Retd.) v. Union of India, (2017) AIR 2017 SC 4161 (India)
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right.13 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. 14
In this vein, the courts have repeatedly held that the “right to life” encompasses a right to live
with human dignity.15 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 above conclusions clearly reflect that Exception 2 to Section 375 of the IPC is an
infringement of Articles 14 and 21 of the Constitution. It is time that Indian jurisprudence
understands the inhumane nature of this provision of law and strikes it down.

13
as “Right to abstain” from sexual intercourse is a long recognized principle of Indian
Constitutional jurisprudence . Govind v. State of M.P, AIR (1975) SC 1378 (India); Kharak
Singh v. State of U.P, (1963) AIR SC 1295 (India).
14
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).
15
C.E.S.C. Ltd. v. Subhash Chandra, (1992) 1 SCC 441 (India).
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RIT FOUNDATION V UOI

In the Split verdict on Criminalisation of Marital Rape Exception (MRE), the Division Bench of Delhi
High Court pronounced a 393-Pages Judgment, wherein the Justices Rajiv Shakdher and C. Hari
Shankar while disagreeing with each other on various issues, very significantly pointed out the issue if
“NEW OFFENCE

In the opinion of Justice Rajiv Shakdher, on striking down MRE, no new offence would be
created and for the said, following reasons were laid down:
 Since the stated object of the rape law is to protect women from sexual abuse of the
worst kind, there is no perceivable rationale for granting impunity to an offending
husband in the context of marital rape. Thus, if MRE is exercised, all that would
happen is, it would extend the ambit of Section 375 IPC to even offending husbands.
 If the ingredients of the offence has been changed, then a new offence/new crime
would have been created. All that would happen if MRE is truck down is that the
offending husband would fall within the ambit of the offence.
 Reading down, filling gaps (casus omissus) and/or excising parts of an offending
provision contained in a statute is a legitimate judicial tool employed by courts for
severing what is unconstitutional and retaining that which is construed as lawful.
 MRE seeks to ring-fence the offender based on his marital relationship with the
accused.
 What is principally punished under the criminal law is the act of omission or
commission, as etched out in the IPC. The penal law is act/omission centric and, in
most situations, is neutral to who the perpetrator of the crime is.
The ratio of the judgment of the House of Lords in R v. R  in Justice Shakdher’s opinion was
squarely applicable, both for the proposition that striking down MRE does not create a new
offence and that if such step is taken, the Court need not leave the matter to the legislature.

 Justice C. Harishankar’s Opinion

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The proscription on Courts creating an offence by judicial fiat operates as a restraint even on
the exercise of the power to strike down a legislative provision as unconstitutional, said
Justice Shankar.

 Judges sitting in courts cannot, on the basis of arguments of Counsel, howsoever

persuasive, create offences, or pass judgements which would result in an act,
otherwise not an offence, being rendered an offence.
 A court cannot legislatively stipulate the punishment for the offence. If the Court is
not empowered to prescribe punishments, equally, the Court cannot, by its order,
convert an act which, prior thereto, was not an offence, into an offence.

Conclusion

(i) the petitioners’ case is premised on a fundamentally erroneous postulate, for which there is
no support available, either statutory or precedential, that every act of non-consensual sex by
any man with any woman is rape,
(ii) the impugned Exception does not violate Article 14, but is based on an intelligible
differentia having a rational nexus with the object both of the impugned Exception as well as
Section 375 itself,
(iii) the impugned Exception does not violate Article 19(1)(a),
(iv)  the impugned Exception does not violate Article 21,

(v)  none of the indicia, on which a statutory provision may  be struck down as
unconstitutional, therefore, can be said to exist, and

vi) in such circumstances, the Court cannot substitute its subjective value judgement for the
view of the democratically elected legislature, hence challenges laid by the petitioners to the
constitutional validity of Exception 2 to Section 375 and Section 376B of the IPC, and
Section 198B of the Cr PC, have to fail.

Lastly, Justice Shankar concurred with the opinion of Justice Shakdher in his decision to
grant certificate of leave to appeal to the Supreme Court as the present matter involved
substantial questions of law

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BIBLIOGRAPHY

Internet sources

Sarthak Makkar, Jan 1, 2019, Harvard Humans Right Journal

Retrieved from- https://harvardhrj.com/2019/01/marital-rape-a-non-criminalized-crime-in-

india/#_ftn4

Article on “Why It’s Still Legal For Indian Men to Rape Their Wives “ By Pallavi Prasad,
Jan 20, 2020

Retrieved from- https://theswaddle.com/marital-rape-inda-decriminalized-crime/

Article on “Marital Rape” By Bharati T V -March 30, 2020, Lawtimesjournal

Retrieved from- https://lawtimesjournal.in/marital-rape/#_edn1

Books Used-

Ipc Bareact

Indian Penal Code by KD Gaur

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