NATIONAL LAW UNIVERSITY ODISHA, CUTTACK

A PROJECT WORK ON CRIMINAL LAW-II

TOPIC: STAUTUS OF MARITAL RAPE IN THE INDIAN CRIMINAL

JUSTICE SYSYTEM

UNDER THE GUIDANCE OF : ASSISTANT PROFF. KUNTIRANI

PADHAN

B.A.L.L.B

SEMESTER- V

BATCH 2020-25
SUBMITTED BY:

VIVEK TOPPO (115)

Contents
ABSTRACT....................................................................................................................................................2

INTRODUCTION...........................................................................................................................................2

CHAPTER-I...................................................................................................................................................3

CHAPTER-II..................................................................................................................................................8

CONCLUSION.............................................................................................................................................11

Suggestions:-.............................................................................................................................................11

ABSTRACT
Men and women are equally important and play equal roles in the creation and advancement of mankind,
yet women are inevitably subject to a number of social humiliations. Women are discriminated against
from the moment of conception until their last breath, despite several precautions and protections that are
available on a global and national basis. The list of crimes against women is vast and includes things like
female genital mutilation, domestic abuse, sexual harassment, and more. Marital rape is one issue that
needs immediate action from the Legislature because it is not currently recognized as a crime in our
Indian legal system. Thus, the paper has covered the topic of using women against their will to order to
address this. The legitimacy of Section 375 of the IPC is also discussed in the paper

INTRODUCTION
Marital rape is a significant factor and has been often overlooked as component of sexual assaults on
female victims. Behind the iron curtain of matrimony, it is often regarded as one of the most unpleasant
forms of so-called masochism in Indian culture.
Unfortunately, marital rape is a reality for some Indians, and this horrible crime has eroded faith in
marriage. Women have been disproportionately impacted by the decriminalisation of the practise.
Whenever a man has unwanted sexual intercourse with his wife and he uses physical violence, threats of
physical violence, force, or she is unable to provide her consent, he has committed marital rape. Abuse of
a wife physically and sexually by her husband is a form of domestic violence that is illegal and perverted.

CHAPTER-I

Analysis of Martial Rape:-

Having been a persistent problem, marital rape has extensively remained untouched or hindered aspect of
sexual offences against women in the country. The term ‘Marital Rape is used to describe any sexual act
performed by a husband or ex-husband on a woman without her consent, against her will, or after she has
been coerced into submission through the use of physical force, threats of physical force, intimidation, or
incapacitation. Sexual acts that are regarded degrading, humiliating, painful, and unwelcome by the
victim include but are not limited to anal or oral sex, forced sexual conduct with other individuals, and
other sexual activities.

The Indian legal system does not sufficiently address marital rape. If the woman is older than fifteen, the
law does not prosecute rape committed during a marriage. Only when a wife and her spouse are legally
separated from one another and living separately, then only forced sexual intercourse is said to be
committed.

Due to the shame associated with accusing one's husband of being the perpetrator, many situations
continue to go unnoticed since victims are unwilling to confide in their family or friends.

However, in the recent judgement of the case named “1X v The principal secretary of health and family
welfare Department, Delhi NCT Government and anr” ; justice has been given to the marital rape victim
following her pregnancy, Supreme court held that no matter which sort of rape is committed whether

1
https://images.assettype.com/barandbench/2022-09/348c5fd8-1c12-4230-bbfa-8131a0d30cc5/
X_v__The_Principal_Secretary_Health_and_Family_Welfare_Department__Delhi_NCT_Government_and_anr.pdf
< as accessed on 6th august).
marital or unmated when a rape is committed it does come under the meaning of ‘rape’. In order to
protect women from forceful pregnancy court passed this judgement as result of marital rape.

Issues vis-a vis marital rape:-

A marriage is a commitment and a bond that is based on trust and love. A husband who advocates sexual
superiority by demanding it immediately and by any possible means is not considered to be a member of
the institution. According to studies, marital rape frequently has serious and long-lasting impacts on a
woman. These effects can be both physical as well as psychological effect.

Victims of marital rape may suffer cuts, bruises, sprained or torn muscles, bleeding internal organs, and
weariness. Fractures, black eyes, bloody noses, and knife wounds are just some of the other physical
symptoms that can result from husbands' sexual violence against their wives. It might also lead to specific
gynaecological consequences such as miscarriages, bladder infections, infertility etc.

Women who have been sexually assaulted by their partners may also suffer emotional fallout. Short-term
effects of marital rape include anxiety, shock, acute panic, melancholy, suicide thoughts, and post-
traumatic stress disorder. Some of the long-term effects include changes in food and sleeping habits,
sadness, difficulty forming trustworthy relationships, and an increase in self-doubt. Effects on mental
health may persist for a long time. Some survivors of marital rape report experiencing flashbacks, sexual
dysfunction, and emotional anguish long after the violence ended.

Different forms of marital rape:-

“In the case 2Nimeshbhai Bharatbhai Desai vs State of Gujarat” ,wherein Supreme Court laid down three
forms of marital rape which are largely prevalent in India.

1. Battering rape: it’s one of a kind wherein, women had to experience both physical as well a
sexual violence in the relationship and they experience such violence in various ways. Some are
battered during the sexual or the rape might follow a physical violence wherein the husband
wants to make up and forces his wife to have sexual intercourse against her will. Furthermore,
majority of marital rape victims comes under the ambit of battering rape.

2
https://indiankanoon.org/docfragment/185050052/?formInput=marital%20rape <as accessed on 6th September,
2022>.
2. Force only rape: In this type of rape, husband uses force to that extent till it’s necessary coerce
“their wives, battering may not be the characteristic of these relationships. The assaults are mainly
suffered by the woman after having denying the sexual intercourse.
3. Obsessive rape: “Other women undergo what has been described as sadistic or obsessive rape;
these assaults often involve physical violence and involve torture and/or bizarre sexual
behaviours.”

MARITAL RAPE EXCEPTION HISTORY IN THE INDIAN CONTEXT

Rape is classified as a crime in “Section 375 of the Penal Code of 1860 (the "IPC"). It is a broad
definition that encompasses both sexual contact and other types of sexual penetration, like oral sex,
such as rape. The application of this clause to sexual activities or sexual contact between a husband
and wife is, however, disallowed under Exception 2. Therefore, if a husband rapes a woman, she has
no legal recourse under Indian law. Due to the Criminal Law (Amendment) Act of 2013, Section 375
of the IPC” now reads as follows:

 A male forces a woman to have his penis in her vagina, mouth, urethra, or anus, or penetrates it to
whatever extent; or

 Any object or body part, excluding the penis, is inserted “into a woman's vagina, urethra, or anus
to any degree, or forces her to do so with him or another person; or”

 “Manipulates any part of a woman's body to allow entry into her vagina, urethra, anus, or any
other part of her body, or compels her to do so with him or anybody else;”

When the situation fits into any of the following seven categories:-

Initially—Contrary to her will.

Second: Without her permission.

Thirdly.—With her consent, when her consent has been obtained by instilling fear of harm or
death in her or any other person in whom she has expressed interest.

Fourthly.—with her consent, when the man is aware that she is not married to him and that she is
only giving her consent because she thinks he is another man to whom she is or thinks she is
legally married.

Fifthly, with her permission, if she is unable to understand the nature and implications of what
she consents to due to mental impairment, intoxication, or his direct or indirect administration of
any stupefying or unwholesome Substance.

Sixth: When she is younger than eighteen years old, with or without her agreement.

When she is unable to express consent, at seven years of age,for the purposes of this section,
"vagina" includes the “labia majora”, according to Explanation 1.

Explanation 2: Consent occurs when a woman gives her explicit permission to have sexual
contact of a certain kind through words, gestures, or any other kind of verbal or non-verbal
communication.
That is, if.---- Sexual acts or intercourse between a man and his wife are not considered rape
according to Exception 2 of Section 375 of the IPC (the "exception clause"). Since consent is the
main topic of this section, it is probable that when the victim and the offender are married, an
unquestionable presumption of permission will apply. However, considering the sacredness that
this institution has taken on in our culture, it is also possible that this was a legislative choice to
exempt married relationships from the application of this clause. This may be because the IPC
exempts spouses. “A specific type of marital rape—non-consensual sexual contact while the
woman and husband are living apart due to judicial separation” or another reason—is
criminalized even though marital rape as a whole is not. According to IPC 376B:

“376B: Sexual activity by a husband toward his wife while they are separated: Whoever engages
in sexual activity with his own wife while they are living separately, whether pursuant to a decree
of separation or otherwise, without her consent, shall be punished with either type of
imprisonment for a term that shall not be less than two years but which may extend to seven
years, and shall also be subject to fine.”
 Explanation - "Sexual intercourse" in this section refers to any of the activities listed in clauses
(a) through (d) of 375.3

“According to this section, permission is implied under IPC section 375, but not in this case
because the husband and wife do not live together. Living together creates a presumption that the
woman has given her approval for the husband to engage in sexual activity.”

It is possible to speculate on this and analyse the legislative debates and Law Commission of
India's (the "Law Commission") findings over time.

CHAPTER-II

Is the wife a possession that can be utilized against her will? :-

The only crime in which the victim becomes the accuser is rape. According to the Indian Penal
Code, a male is considered to have committed rape if he engages in any sexual activity with a
woman without her consent or with consent obtained through deception, coercion, or fraud. The
question of whether having sex with your spouse while married comes under the definition of
rape arises. There are two possibilities; the one that everyone is aware of is "No," and the other is
“Yes," if it is done without her agreement. Compared to the possibility of "No," the possibility
of "Yes" has more arguments against it. ;
Marriage is a legally recognized contractual partnership, but the parties to the contract are still
subject to certain restrictions. That specific rule has no authority to contravene or conflict with
other legal laws. All Indian citizens, regardless of their gender, caste, ethnicity, etc., are protected
under the Indian constitution. All of its citizens are given Fundamental Rights at birth. Every
citizen has the right to life, personal liberty, and human dignity, as stated in Article 21 of the
constitution. Since personal liberty encompasses any legal aspiration, the decision to engage in
sexual activity is one that both the husband and the wife must make.

3
Indian Penal Code, s 375B
Acts that do not invite the term "rape" are covered by the exception to section 375 of the IPC.
According to this exception, unless the wife is under the age of 15, any medical examination or
sexual contact by the husband does not constitute rape”.

However, "consent" is the common root that both ideas share. No one has the right to use other
people's rights to coerce one gender or another to satisfy a personal desire if the woman's
permission is refused. It does not imply that a woman has the last say in all decisions; rather, it
clarifies that proper consent is necessary before making contact with a woman and that
suggestions and requests from women must be accorded the same weight as those from men.
Every act to be performed jointly requires approval from both parties for that contract to preserve
its validity because marriage lies to be a contractual partner for the aim of building a family and
procreating a child. In a similar manner, a wife is entitled to refuse sexual activity that resembles
that of a man. Thus, it makes it very evident that a woman is an additional equal half of a man
and is not considered property that men obtain through the religious ritual of so-called marriage.

“A law known as the Protection of Women from Domestic Violence Act, of 2005, was passed by
the Indian government”. To safeguard all women who are impacted by their domestic lives, this
Act was passed. Sexual activity without consent can be justified as a violation of dignity and, as
was previously noted, is punishable by law. Few civil remedies, such as fines, protection, etc.,
have been provided by the Act, which considers this infraction to be a civil offense. No matter
whether the sexual intercourse done was before or after the marriage when it’s done against the
wilful consent of men or women, still it would be considered to be rape.

Arguments for criminalising Marital Rape:-

 It would be inconsistent with the other laws of India to not make marital rape within a
marriage a crime. In India, it is illegal to violate the modesty of a woman or to perform
sexual acts on her against her will or without her agreement. In a similar fashion, marital
rape is something that occurs without her consent but is not considered a criminal
offense.
 The basic right outlined in Article 14, which is the right to equality and equal protection
under the law, as well as the fundamental right outlined in Article 21, which is the right
to life and personal liberty, have both been violated.
  Just because of the fact that only few number cases are lodged w.r.t marital rape since it’s
not recognized as crime. Its important to give equal importance once an offense is
specified under the provisions of a statute.

Criminalising marital Rape: Situation in India:-

India is renowned for its culture and heritage, as was already said. When the path taken by India is
imagined, it is clear that it upheld its cultural customs and transmitted the same zeal to the following
generation. The act of marital rape was made illegal in India thanks to the same mindset. The government
is still unsure of what to accept as proof when a case of marital rape is brought before the court and if
making the conduct illegal will lead to additional issues like the harassment of males, etc. Social theorists
contend that making marital rape a crime will undermine the institution of marriage.

Despite all of these circumstances, the prohibition against marital rape continues to exist as an unwritten
rule. In order to maintain this state of affairs, Indian courts have established the "right to say no to sexual
intercourse" in order to dispel any uncertainty over the rights of married couples. This has an impact on
the other party no matter how you look at it. When this is broken, it becomes a crime, and those who
commit such crimes are still being punished. When the same circumstance is observed from a different
angle, it may be perceived as harassment directed at men. Criminalizing such behaviour cannot transfer
protection from one gender to another. Thus, it is evident from the foregoing that marital rape is still not a
crime in India, but the process is still in its infancy. This is not to say that marital rape is not a crime; it
just means that it still exists as a custom that has not yet been codified.

In accordance with section 375 of IPC which talks about rape. According to this section there’s an
exception clause which states that a person can undergo a sexual activity with his wife i.e. without her
consent, only if she isn’t below the age of 18. Initially the age criteria was fifteen then later on after the
amendment it was increased to eighteen as stated by the Supreme Court of India in the case of
“Independent Thought v Union of India”, wherein the court observed that "Whether a girl is married or
not, her human rights are very much still functioning and need respect and support." However, the
Supreme Court did not address the marital rape of anyone over the age of 18.

CONCLUSION
As time went on, the Indian government passed/amended numerous laws to safeguard women. However,
it takes a while to pass legislation to stop marital rape, a terrible crime committed against women by their
own husbands. India continues to be the world leader in maintaining and promoting its culture. Even if
Indian tradition maintains that a married woman must submit to her husband's wishes, the same Indian
culture also asserts its right to respect women's dignity and their consent in all matters that affect them.

Suggestions:-
In accordance with Indian law, men and women have distinct and independent identities. In the current
era, jurisprudence places a strong emphasis on protecting women.

Therefore, it is past due for the legislature to recognise this legal flaw and repeal Section 375(exception 2)

of the IPC in order to include marital rape under the purview of rape legislation .