MARITAL RAPE THROUGH THE EYES OF JUDICIARY

By-
Manisha Patidar

Abstract-
The current debate about marital rape should be criminalised or not involves the broader
context, where the orthodox thinking of society has become one of the serious issues. In
recent years, the cases of marital rape are increasing but still there is no law that protect the
victims of marital rape. There are various countries where marital rape is still not
criminalised despite having large number of cases coming in front of court and India is one of
them. In this paper, the concept of marital rape has been discussed from all perspectives
including various judgements that helped in changing this concept to some extent and
bringing India close to the criminalising marital rape.

Introduction-
Marital Rape has become a serious debatable issue in India, where justice is being denied due
to outdated and orthodox mentality. There is lack of any sort of legal provision regarding
marital rape. The only option the victim has left is to go to the court but as in any Indian laws,
there is not any definition of marital rape, it cannot be properly proved the forceful
intercourse by a man upon his wife as marital rape. Various activists and Indian media had
opinion to criminalise the marital rape but some orthodox views that marital rape cannot be
criminalised because Hindu marriage is sacred in nature and criminalisation of marital rape
can destabilise the sacred nature of marriage. Secondly, it cannot be criminalised because
there are huge number of fraudulent cases that may be filed against husbands. The Indian
government argues that there might be cases when what seems like rape to the wife may not
be rape for others. This statement clearly shows that the regressive nature of Indian society
has become one of the wall for criminalising the marital rape.

The Definition-
Marital Rape can be defined as any unwanted sexual intercourse as penetration (vaginal, anal
or oral) obtained by force, threat of force or when wife does not give her consent.
TYPES OF MARITAL RAPE-

Force Only Rape:

The term “force only rape” describes a husband who uses threats and violence only to the
degree necessary to coerce sex. This type of rape usually occurs in relationships where
violence is predominately verbal, and/or in relationships where violence occurs
only/primarily in sexual interactions.

Battering Rape:
When beatings and rape are combined, it’s referred to as “battering rape.” The sexual abuse is
part of the general pattern of psychological, verbal, emotional, economic, and physical
abuse. Often the rape occurs as a continuation of the physical assault. In some cases, the
physical violence continues during sex, and the sexual act is also violent.

Obsessive Rape:
The most openly sadistic form of rape is called “obsessive rape.” The abuser seems obsessed
with sex, and the act itself is violent. In these relationships, the abuser may use violence to
become aroused.

What does the law say?

When call it simply, Indian laws does not have any place for marital rape, because it says that
it does not apply in cases when perpetrator is a spouse.
The Penal Code, 1860 discriminate the consent of married and unmarried women. As per the
exception clause in section-375, there cannot be commission of rape when the husband has
sexual intercourse with his own wife not being under 15 years of age without her consent.
This also goes against the article-14 of the Indian Constitution, the right to equality.

Indian Judiciary-
There was also a lot of debates occurred after some of the statement of court. The Indian
Judiciary has played a vital role in the issue if Marital Rape. There had been various
controversial statements made by our judicial persons that left us shocked that the orthodox
thinking still exists in our judicial system along with the society.
Instead, there are also some good steps taken by our Indian Judiciary for criminalizing the
marital rape but still it is far away from it.
In the Arnesh Kumar v. State of Bihar,1 the apex court held that criminalising marital rape
will be the collapse of the social and family systems.
Also, when CJI SA Bobde asked a rape accused that "will you marry her?"
In the case of Harvinder Kaur v. Harmander Singh, 19842
The Delhi High Court Stated that the Constitution could not interfere in a household because
it would destroy the institution of marriage. Besides this type of statements there are also
some of the judgements in which the court had accepted that marital rape should be the
matter of concern.
In 2019, while introducing the women's sexual reproductive and menstrual rights bill, 2018
Shashi Tharoor, Member of Parliament in the Lok Sabha said, " Marital Rape is not about
sex, but about violence, it is not about marriage, but about lack of consent.
The turning point of the judicial instance against marital rape can be seen in the case of
Independent Thought v. Union of India.3 The divisional bench said that 'The issue before
1
2014 SCC 273,
2
AIR 1984 Delhi 66, ILR 1984 Delhi 546 1984 RLR 187,
3
(2017) 10 SCC 800
us is limited but one of the considerable public importance – Whether sexual intercourse
between a man and his wife being a girl between 15 to 18 years of age of rape?
Exception 2 to Section 375 of the Indian Penal Code, 1860 answers this in the negative, but
in our opinion sexual intercourse with a girl below 18 years of age is rape regardless of
whether she is married or not.
Advocate Karuna Nundy, who was representing the petitioner in a case has made a statement
that:
They don't want the law in the bedroom despite the fact that you are not allowed to kill your
wife in the bedroom or slap your wife in the bedroom, nor are allowed to sexually molest her
in the bedroom (under the Domestic Violence Act). Only thing the criminal law has an
exception on here is raping a wife in her bedroom.
In Nimesh Bhai Bharat Bhai Desai v. State of Gujarat (2018)4. It explained that
'dehumanised treatment of women will not be considered acceptable and also that "marital
rape is not privilege of the male partner in a marriage, but instead a violent conduct and
unfair treatment that should be criminalised.
Justice DY Chandrachud also stated that: The freedom to say 'no' (to sexual intercourse) must
exist after marriage as well.
Another significant Judgement came in the year 2021, when Kerala High Court rules 'marital
rape' as a valid ground for divorce.
Recent NFSH report says that out of all the sexually abused married women, 82% accused
were the husband of the victim.
According to a UN Population Fund Report More than 2/3 of the married women in India
have been beaten or raped.

Conclusion-
Allowing marital rape and not criminalising it effectively means that human dignity can
accorded lesser value in the case of a women when she is married. The argument of some
orthodox people that criminalising to protect the stability of the marriage is illogical.
Marriage does not mean that the women is all time ready to, willing and consenting (for
establishing physical relations). The time has come when amendment of the criminal laws
should be so structured as to give a recognition of women's equality and right to integrity of
their own body.

4
2018 SCC online Guj 732[104] 62