SOCIOLOGY RESEARCH PAPER

ON

SOCIOLOGICAL EXPLORATION OF MARITAL RAPE IN INDIA

Submitted by: Hansin Kapoor, Chaitanya Nandamuri, Vasu Goyal & Manraj Atwal

Affiliated By: O.P Jindal Global University, Sonipat, Haryana

Course: B.A. (Hons.) Criminology & Criminal Justice

School: Jindal Global Law School

Batch: 2023 – 2026

Submitted to Prof. Deblina Dey

Submission date: 30th October 2023

INTRODUCTION

India is a land rich in its culture and traditions that have existed since time immemorial.
The structure of Indian society starts from its basic societal norms that makes the whole
design of the contemporary land unique and so colorful. However, many of these societal
norms are still prevalent in the post-modern world, some of the ancient norms that
symbolized dominance, chauvinism and atrocities over women can be well identified on
news channels and other sources of media communication. Social evils such as Child
Marriages, Forced Marriages (Pakadva Viah), Devadasi System, Pardah system and etc.
are still prevalent in states such as Bihar, Rajasthan, Haryana, Jharkhand, Uttar Pradesh
and etc. despite of being declared illegal and void under the Indian legal framework. These
Social immoralities are problems that impact a society’s members either directly or
laterally indirectly and are viewed as innocently dubious or problematic. One such social
evil is Marital Rape, which has existed in Indian society since ancient times. The concept of
Marital Rape came into existence in 1736 as a legal statement documented by Sir Matthew
Hale, who was a chief justice in England. Since then, the matter of Marital rape came into
concern. In 1932, Poland became the first country to address marital rape and criminalized
it, many Scandinavian states such as Sweden, Denmark, the former Soviet Union and
Norway followed it. Furthermore, Australia, due to the feminist movement, became the
first common law country to pass reforms in year 1976 criminalizing rape in marriage. But,
on the other hand India is yet to take a decision on criminalization of marital rape. What
opinions does citizens of India have on marital rape? What factors do they think are behind
its prevalence in the state? And are they in full support of its criminalization or are they
still dubious and conservative for the same? These all questions are yet to be answered.
RESEARCH QUESTION

Does contemporary Indians and socio-legal framework accept the criminalization of rape
within the marriage or not?

The research question above briefly highlights the main theme of this research paper. The
question emphasizes on the current social norms and public opinions on rape within the
marriage, as marriage is considered a sacred bond and is also referred to as an institution.
What makes the public in general think of the concept of ‘consent’ within the marriage for
intimacy? What are the opinions of the youth as by their thoughts and opinions the society
will evolve itself and prepare for pondering upon such a matter which is sensitive and is of
extreme concern? What factors keep people silent while reverting on its criminalization? Is
India ready for such a decision? We have tried to answer these questions in our research
paper by using various concepts of social sciences. As marital rape is considered as a
gender-neutral concept worldwide but, Indian society has always been patriarchal from the
very beginning because of which marital rape is generally not considered and accepted to
be wrong in Indian society because major victims of marital rape are women in rather than
men. There are very few voices in India which are consistently raising the prohibition and
criminalization of marital rape in the country but are lacking behind in making people
understand as they are so bonded with their cultural norms and still never want society to
be ‘anti-patriarchal’ due to various factors. However, most modern people who are gaining
quality education and have access to various facilities including technology might have a
different point of view which can really make our social institutions rethink on the same.
RESEARCH METHODOLOGY

For our research paper, as we required people’s opinions, especially the youth, we
conducted a survey for the same. We prepared a questionnaire wherein we asked both
open-ended and closed-ended questions so that we could qualified answers from the youth.
We tried to reach as many people as possible for our research so that we could get
apprehensive knowledge about the point of view of as many people as possible. Keeping
people’s privacy in mind, we gave them a disclaimer and promised to keep their email-ids
as confidential as possible. Along with its conduction, we took the help of various literary
sources which were available to us from the library at O.P Jindal Global University and
some of them we found on our web. These primary and secondary sources helped us in
looking to our topic of research with more vividness. Moreover, after the completion of the
first draft of our questionnaire, we requested our professor to guide us, if there was any
flaw in it. After consulting our professor, we looked on for a few questions which we were
asked by her to rectify and simplify to give clarity to our respondents. Furthermore, we
used data taken by various other researchers from different institutions to analyze our
materials and come up with a conclusion. However, we also faced problems while
conducting our research such as, it was very difficult to approach people as sometimes
people are not very much active on social media platforms used for communication and if
they are active due to plenty of messages at times few important messages are left unseen.
But, in order to cope up and manage it we tried calling them and notifying them about our
survey and requested them to fill it in. Not only this, but we also faced problems with
language as many people were not well versed in English, we tried translating our survey in
Hindi language which was then suitable for them and asked them to fill it diligently. This
research has several limitations. First, the sample size is relatively small—a total of 78
responses were conducted. Second, most of our respondents are students at Delhi
University so the findings may or may not apply in other universities or other institutions.
Third, majority of our respondents are females so our findings may not talk about opinions
from other respective genders. Any comparative research is beyond the scope of this
research paper. Despite these limitations, however, this study provides valuable insight, not
only into the everyday violence of women within the marriage but also tries to find out
current societal trends and other socio-legal frameworks on the same.
FINDINGS

As Marital Rape is a form of rape committed by either of a spouse on the another without
his or her consent, worldwide this concept is seen as gender-neutral, whereas when it comes
to Indian perspective, we can see in general terms women are found to be its major victims
and men are hardly seen in picture as victims. These days this term is considered as the
most debatable topic in our society because marriage in our society is considered as a
sacred union of two humans and on the other hand some people consider this as self-given
consent for having sexual-intercourse, this means that in simple terms, after marriage a
wife is husbands property and the latter can use her for his own pleasure anytime despite of
knowing her emotional, physical and mental condition as well as her priorities for the
same. We can see in our ancient texts that marriage was considered especially for attaining
dharma, kama and praja (progeny). The sense of sexual gratification was considered as an
essential element in one’s marriage in order to sustain a healthy marriage and this was also
meant for reproducing heirs in one’s family. Furthermore, in our culture, marriages are
made in heaven and the sacred bond sustains till 7 further reincarnations. However, at the
same time in present world, we can see domestic violences on the same women with whom a
man takes 7 vows in front of the holy fire. The amount of brutality which women faces after
the marriages are considered more than when they are unmarried in India.

We can look on the matter by using various sociological concepts in order to understand
why the cases of Marital rape are increasing and what are the factors behind which make a
spouse commit it? The concept of social imagination given by C. Wright Mills can help us
understand the matter of concern. As per this concept, an increase in number of cases not
only tells us that women are brutally treated in their households after marriage, but the
rising number also throws light on different factors. These numbers camouflage many
unreported brutal violences of rape that were committed on women, though number can be
seen low on data extracted but the presence of crime was unreported to police and other
official institutions of the society. This further sets up an alarming situation by the
government and the judicial system to look on the matter as soon as possible and take
action by seeing the matter. Public, on the other hand, at present doesn’t have clarity on
what can be defined as rape and what can be considered as acceptable for seeking sexual
pleasure. Lack of public awareness on differentiation of both the iotas creates social
disruption at times and leads to bias when it comes to framing of judgements and laws for
the same matter. However, there is a paradox as worldwide marital rape is considered as
gender-neutral and in India men are only seen as the perpetrators for this. Furthermore,
many legal officials in India have supported their argument that marital rapes can be used
by women as their weapon. Justice Sharad Kumar Sharma of Uttarakhand High Court,
said in one of his remarks while quashing a criminal proceeding said the following:

“In fact, the offence under Section 376 of the IPC as of now in this modernized society is
being misused as a weapon by the females to be mis utilized (sic), as soon as there arise
certain differences between herself and her male counterpart, and rather it is being used as
a weapon to duress upon the other side for a number of undisclosed factors, and it cannot
be ruled out, that the provisions contained under Section 376 of the IPC are being
rampantly misused by the females.”

This also shows that the number of rising cases of marital rape can be those reported by
women falsely by using the privilege of lawful acts and provisions under different statutory
legal documents in order to extract money and property from them. Moreover, people in
society who are married and are actually committing this heinous act may also take
support of the Rawlsian principle of self-respect which states that human beings should not
be denied sexual intimacy. As per the basic document of functioning of law in India; the
constitution, part III includes Right to Life and liberty in Article 21 which also includes
inalienable right to sexual intimacy and freedom of expression, now, this can be concluded
that expressing sexual desire freely with one’s spouse can also be held liable. This also
shows us that even the basic doctrine also has certain provisions which the perpetrators can
use in order to defend their acts. Thus, strengthening their will to commit the act
repeatedly or in simple words becoming recidivistic towards it.

Now, the responsibility of the youth comes forward which can help in generating public
awareness in their houses, neighborhood and workplaces and clarifying out the term
vividly for the people. To know what the youth of our area thinks about the term marital
rape, and do they understand the brutality of such an act we conducted a survey for the
same. The aim of our survey was to know the young generations point of view, and do they
think the judicial system should criminalize such a rape?

The questionnaire prepared is shared in Appendix 1 for the reader’s reference and here is
the analyzation of the same extracted data.

Here as been asked by the respondents about their familiarity of the concept of Marital
rape out of which 94.9% of people knew about the same and remaining 5.1% of people
were unfamiliar with the term. This makes us conclude that the youth is aware of the term
Marital rape. Furthermore, they are also familiar with the two different iotas perceived
with it and know the intensity of the act. But as we moved on further and asked about their
view on considering sexual intercourse in marriage, we got mixed answers, and the
majority of our respondents were neutral upon it (30.8%) but (29.2%) of our respondents
were agreeing on the same as well. This means that our respondents who were majorly
between the age of 16-25 admires the idea of ‘consent’ within the marriage as well because
of which they consider sexual intercourse which is non-consensual as we made them aware
of legal definition of marital rape previously in our survey. On the other hand, 15.4% of
our respondents disagreed with the same, this can be analyzed that society still considers
marriage as union for personal gratification as mentioned earlier.
Thirdly, we prioritized the idea of consent and asked our respondents whether the consent
of women is necessary after marriage for intimacy. By analyzing the data, we got to know
that 96.2% of our respondents consider the importance of the consent given by a married
women to her husband. Heading towards our survey, we gave our respondents the best
possible factors which can be seen in the occurrence of marital rape in Indian households
to know about their opinion on the factor which can be considered the most.

The results for the same said that the patriarchy which can be seen in the society can be
considered one of the best possible factors of committing marital rape (70.5%). Also,
dependence on illicit substances and stress and disturbed emotions are also the factors
which our respondents thought can be one of the prevalent factors. This not only helped us
to know the present trends of the opinions of the youth for the same, but also, helped us to
consider it to formulate laws and initiate its criminalization in India.
The above data extracted tells us that 89.7% of our respondents are not in favor of the
justification of section 375 of Indian Penal Code which talks about rape. Section 375 of IPC
only gives justice to the victim who is under the age of fifteen years of age and ignoring the
fact that the laws made in 1860 are not logically applicable due to the modernization and
evolution of the societal norms and forms of crimes.

By giving instances of criminalization of Marital Rape in different countries of the world

including those who has influenced Indian legal system, we tried to get the opinion of our
respondents on the same by keeping in mind the essence of the matter still lies in the hands
of the hon’ble Supreme Court of India. This was asked just to know youths’ opinion on the
same and 87.2% of our respondents agreed on the need of criminalization of Marital rape
in India as soon as possible. Proceeding to it, we tried to get responses on the barriers to
which victims of marital rape are constrained and don’t complain about this act to anyone.
Our respondents were given a set of possible constraints by us to analyze them and answer

any extra constraint which they feel could be possible freely in others section added by us
for the same reason.

70.5% of our respondents chose fear of losing one’s marriage and the same percentage
thought fear of bringing shame from the society to one’s own family can be a possible
reason why many women who suffer marital rape do not complain about it. This shows
that, the society in general still lives in sense of saving and maintaining the respect of one’s
family and tries best possible ways for its consistency and due to which the people who
suffer from brutal domestic violences in their households behind the walls are taught from
their childhood to maintain it even after suffering from harsh treatment that ultimately
would hinder ones physical, emotional, and mental wellbeing.

CONCLUSION

By summing up everything, we come out with a conclusion that young social beings are
aware of the brutality of Marital Rape and its rising cases in India. Marriage is an
institution in which the element of personal gratification is part of maintaining a healthy
and joyful marriage. The right of consent is an alienable right which is given to women by
the Constitution of India and after marriage it is necessary for both the spouses to take it.
Focusing on the structure of the evolved post-modern Indian society, the lack of awareness
in general public about how heinous this crime is, is still a matter of great concern.
Majority of the people who are old enough and are married considers that one cannot term
intimacy within the marriage as ‘rape’. Though, many of our fellow nations have
understood the conception of Marital rape in their states and their governments and
judiciary have effectively trialed it and formulated laws, India, on the other hand should
have such discussions and consensus on a large scale, so that laws of our nation can be
reformed as per the needs of our society. The level of tolerance and acceptance of our
society is changing and so do our laws need to be with time. We should not ignore the fact
that there are still many voices that remain silent due to various constraints that forbid
them from coming out of their niche and speak about their atrocities which they suffer
within their houses. The Government should plan out techniques through which these
voices can be heard, and perpetrators of such acts should realize the brutality of their act.
Therefore, the matter lies in the hands of social institutions to initiate laws and further
amend formal sanctions which are old enough and are seen as inapplicable according to the
needs of the Indian society. At the end, a socially sensitized judge is better statutory armor
against gender outrage, than long clauses of complex section with all the protections
written into it.
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APPENDIX 1
APPENDIX – 2
DECLARATION

Materials studied and Research paper was written by Hansin Kapoor

Power Point presentation by Chaitanya Krishna Nandamuri

Few materials were given by Vasu Goyal

Power Point presentation by Manraj Atwal

Hansin Kapoor

Chaitanya Nandamuri

Vasu Goyal

Manraj Atwal