KIRIT P.

MEHTA
SCHOOL OF LAW

B.A.L.L.B. (Hons.)/ FIRST SEMESTER

LEGAL METHODS

MARITAL RAPE - NOT A CRIME

SUBMITTED TO:
Prof. Priya Kumari

SUBMITTED BY:
Siya Agarwal
Roll no.- A061
 Abstract

orced sexual intercourse by a husband with his wife pertaining to the concept of ‘implied
consent’ is called marital rape. Indian Penal Code doesn’t recognise it as an offense under the
law. Section 375 of the Indian Constitution, which defines rape, also states marital rape as an
exception to the definition of rape. For centuries, women in various parts of the world have been
subjected to it and have endured this adversity with the mindset that their husbands are entitled to
their bodies rather than themselves. Marital rape has roots in the system of patriarchy and male
dominance wherein women are treated as the property of men. They have interpreted marriage as
a license to have sex with them, no matter the presence of consent. Most victims of marital rape
are either unable or afraid to fight off their spouses' sexual advances. Posttraumatic stress
disorder (PTSD), depression, gynecological issues, and poor physical health symptoms are all
prevalent among marital rape victims. There is an urgent need for marital rape to be recognized
legally as a crime to ensure justice and preservation of rights for women.

Keywords

Marital Rape, sexual violence, consent, law, violence against women

Introduction

In this world full of heinous crimes, no species is spared-be it a child, a woman, a man, or an
animal. Women have been at the forefront as prime recipients of such offenses. With the
progression of a patriarchal society, crime against women has only scaled up. It is estimated that
approximately 35% of women all over the world have faced sexual assault. According to NCRB
data from 2019, a woman is assaulted by her in-laws every 4 minutes, and a woman is raped
every 16 minutes somewhere in India. According to LiveMint's study of the National Family
Health Survey from 2015–16, nearly 99.1% of rape cases in India go unreported. The accused in
the majority of these cases were the survivors' spouses. According to the same study, a woman is
17 times more likely than other women to experience sexual assault or rape at the hands of her
spouse. The irony being its legality-husbands raping their wives is not recognized as an offence
under law.
Marital rape and other rapes are grossly under-reported. (Source: thehindu)

Reflecting on the above vexed issue, this paper is written in two parts. The first part resonates
with the definition, social scenario, and effects of rape on women, while the second part delves
into the legal history of marital rape.

Chapter I: Marital Rape - Definition, Reasons, Effects and types

Marriage is a bond of purity between two individuals, which stamps the beginning of a new and
important phase in their lives. It is an arrangement which socially permits a man and a woman to
bear children, implying the right to a sexual relationship. This social acceptance has, however,
been violated and misinterpreted as consent by husbands, leading to forceful sexual intercourse
or marital rape. Marital rape is therefore a term used to define coercive sexual acts committed by
the husband without the wife’s consent and/or against her will. He vessels it through physical
force or applied harm based on prior assault or domestic violence, fearing which the wife gives
in. There also prevails a social pressure to always ‘please’ your husband whilst being compliant
in the marriage. It is apparently the duty of the wife to ‘protect the honour’ of her family and
thus be silent and endure all forms of violence, oppression, and mental trauma inflicted by the
in-laws. Therefore, the reasons for it all come under the umbrella of patriarchy and male
dominance prevalent in the society. 1 Researchers who have spoken to rapist husbands concluded
that they rape to express anger, dissatisfaction over something, to reinforce power, dominance,
and control over their wives. It was also found that many men believe their wives do not have the
right to refuse their sexual advances, and so they persist in having sexual intercourse with their
wives even when they know it is unwanted. In some cases, husbands prefer raping their wives to
consensual sex. 2 The law not criminalizing it has given men an immunity to rape their wives
without facing any consequences.

Types of Marital Rape

Women who have been sexually assaulted by their partners go through a wide range of violence.
Studies show that there are majorly three types of marital rape that happen.

● Force-Only Rape: In this type of rape, the husband uses just enough force to coerce their
wives to have sex without necessarily getting violent. He may use threats or bully the
wife causing mental trauma. It generally happens in relationships where the violence is
verbal or in relationships where violence occurs primarily in sexual interactions.

● Battering Rape: When beating and rape is combined, it is called battering rape. Severe
physical and sexual violence is used against the wife. The broad pattern of psychological,
linguistic, emotional, financial, and physical abuse includes sexual abuse in its various
forms. It is majorly prevalent in relationships with domestic violence where in rape
follows the beating. In some cases the physical violence continues even during sex
resulting in a violent sexual act. The women end up battered and severely injured at the
hands of their husbands who forced themselves on them.

● Obsessive or Sadistic Rape: This is the kind of rape where the husband seems obsessed
with sex and is of a violent nature. The assaults involve torture and/ or ‘perverse’ sexual
acts and are often physically violent. Violence often arouses them, thus the term ‘sadist’.
Pornography is also a frequent occurance in this form of rape where the husbands force
the wife to watch and even enact what is shown in pornography.

1
Ryan, R. (1995). The Sex Right: A Legal History of the Marital Rape Exemption. Law & Social Inquiry, 20(4), 941-1001.
doi:10.1111/j.1747-4469.1995.tb00697.x
2
DEH Russel. Rape in Marriage, Office of justice programs.
 The Effects of Marital Rape on the Victims

Marital rape has tremendous traumatizing effects on the women who face it. Being battered by
their own spouses, someone they share a lifelong bond with, is a violation of not only their
bodies but also of the intimacy and trust of a relationship. The women are severely
impacted—both physically and mentally. The physical effects of marital rape may include
injuries to the vaginal and anal areas, lacerations, soreness, bruising, torn muscles, fatigue,
vomiting etc.

Some of the gynecological effects of marital rape include vaginal stretching, pelvic pain, anal
tearing, urinary tract infections, miscarriages, stillbirths, bladder infections, infertility, and the
possibility of getting sexually transmitted diseases like HIV/AIDS. 3 Women who are beaten up
by their husbands or have had a violent form of forced sex may have broken bones, black eyes,
bloody noses, knife wounds, etc., among other injuries.

The psychological and mental injuries caused by marital rape are long-lasting and as severe or
more severe than those victims of stranger rape experience. Short-term psychological effects
include a significant amount of PTSD (Post Traumatic Stress Disorder), anxiety, shock, intense
fear, depression and suicidal ideation. There is also humiliation, fear, blaming themselves, guilt,
etc. Long-term psychological effects include disordered sleeping, disordered eating, being
diagnosed with depression, intimacy problems, negative self-images, and sexual dysfunction. 4 If
no contraception was used in the forced sex, then the women might also have an unwanted
pregnancy. Campbell and Alford (1989) looked at a group of married rape survivors and found
that about 17% of them had an unwanted pregnancy. The same study found that 20% of the
women who had been raped by their partner experienced miscarriages or stillbirths. 5

There is, therefore, an urgent need for this form of sexual violence to be addressed and relief and
support to be provided to the victims. People should be educated on marital rape, its effects, and
most importantly, rights over ones own body. All this could only be accelerated through a legal
process and rules regarding the same, i.e., when the problem of marital rape is recognized by the
law. It can only be prevented if laws are passed against it and it’s criminalized; otherwise,
husbands will keep using it as a license and immunity to continue raping their wives.

3
Raquel Kennedy, Bergen Elizabeth Barnhill, Marital Rape: New Research and Directions, VAWnet E-resource
centre (Oct. 19, 2022), https://vawnet.org/material/marital-rape-new-research-and-directions
4
N.A. (Oct 22, 2022) http://vapsoft.org/meaning-of-indian-marriage/
5
Raquel Kennedy, National Online Resource Center on Violence Against Women Marital Rape: New Research and Directions
Bergen
 Chapter II : Legal History

In the Queen Empress versus Haree Mohan Maiti case of 1890, a 10-year-old girl, Phulmani
Das, died because of child marriage and marital rape in 1889. The age of consent then was 10
and since marital rape was an exemption to Section 375 of the IPC, the husband was sentenced to
only 12 months of hard labour.

The current provision against rape in the Indian constitution, present in section 375 of the Indian
Panel Code, states that "sexual intercourse with a woman against her will, without her consent,
by coercion, misrepresentation or fraud, or at a time when she has been intoxicated or duped, or
is of unsound mental health, and in any case if she is under 16 years of age." And an exemption
to it states “that sexual intercourse by a man with his own wife, the wife not being under fifteen
years of age, is not rape.”

In the 1890 case of Queen Empress versus Haree Mohan Maiti, a 10 year old girl called
Phulmani Das died because of child marriage and marital rape in 1889. The age of consent then
was 10 and, since marital rape was an exemption to Section 375 of the IPC, the husband was
sentenced to only 12 months of hard labour. Two years hence, in 1892, the then Viceroy of India
increased the age of consent from 10 to 12, though marital rape still remained an exemption.

The Delhi High Court in the Harvinder Kaur versus Harmander Singh case of 1984 stated that the
Constitution could not interfere in any household matter as it would destroy the institution of
marriage. It said that both Article 14 and Article 21 have no place when it comes to privacy and
married life. 6

The Verma Commission suggested criminalising marital rape following the 2012 Nirbhaya rape case
by arguing that marriage did not imply unrevocable consent to sexual actions. The suggestion was
disregarded by the Indian government at the time.

"The prosecutrix [petitioner] and accused are lawfully wedded husband and wife, the prosecutrix
is major, the sexual encounter between the two, even though forced, is not rape and no guilt can
be put upon the accused," a Special Fast track Court in Delhi said in the State against Vikash
case from 2014.

According to a First Post article, the Supreme Court rejected a woman's appeal in 2015 after she
accused her husband of sexual assault. "You are espousing a personal cause and not a national
cause," the bench of Justices AR Dave and R Banumathi said.

6
Keerthi Krishna and Krati Purwar, Marital rape in India. Oct 20, 2022.
https://www.asianmedia.org/acj/marital-rape-in-india/
The RIT Foundation brought a Public Interest Litigation against the exclusion of marital rape
from Section 375 of the IPC to the Delhi High Court in the same year. Article 14, Article 15 of
the Indian Constitution (a fundamental right that forbids discrimination by the state against any
citizen on the basis of religion, caste, race, sex, or place of birth), Article 19 (freedom of speech,
which is the right to express one's opinions without fear through oral expression, written
expression, electronic expression, broadcasting, or press), and Article 21 are the foundations of
the challenge.

Considering the levels of illiteracy and poverty in India, Maneka Gandhi, who was the country's
minister for child and women development at the time, claimed in 2016 that the "idea of marital
rape" as it was known internationally could not be applied to that country.

However, on October 11, 2017, the Supreme Court ruled in Independent Thought v. Union of
India that sexual activity with a girl under the age of 18 was rape regardless of whether or not
she was married.

The Gujarat High Court acknowledged that marital rape was more than just an idea in the 2018
case of Nimeshbhai Bharat Bhai Desai v. State of Gujarat and that the idea of "implied consent"
in marriage should be abandoned. Every woman's bodily autonomy must be safeguarded by the
law (married or unmarried).

The Women's Sexual, Reproductive, and Menstrual Rights Bill, 2018, was introduced in 2019.
"Marital rape is not about sex, but about violence; it is not about marriage, but about lack of
permission," said Shashi Tharoor, a Lok Sabha member.

A PIL was filed in the 2019 case of Anuja Kapur v. Union of India Through Secretary, requesting
that the Delhi High Court create rules and legislation regarding marital rape. The court retorted
that the legislative, not the judiciary, was responsible for creating the laws. According to this
statement, the court is more focused on law interpretation than law formulation. 7

On September 29, 2022, the Supreme Court ruled that all women, including unmarried
adolescents, can have abortions up to 24 weeks under the Medical Termination of Pregnancy
Act. Justice D.Y. Chandrachud acknowledged that married women can be raped or assaulted.
Today, the Supreme Court was supposed to consider whether married and unmarried women
should be treated equally for abortion up to 24 weeks. "This entitlement respects women as
women, not just spouses, children, or sisters," stated Supreme Court Advocate Rekha Aggarwal.
This marked the first legal recognition of marital rape. However, laws regarding the same have
yet to be formulated.
7
Keerthi Krishna and Krati Purwar,Asian College of Journalism; Marital rape in India
https://www.asianmedia.org/acj/marital-rape-in-india/
 Conclusion

The most despicable crime committed against a woman is rape. Whether the woman is married
or unmarried is irrelevant. Rape is rape regardless of whether the perpetrator is a spouse or a
stranger. Marriage does not give the husband a license to rape. Every woman has rights on their
own bodies and a social bond such as marriage cannot be an exception to it. Additionally, a
married woman's right to protection and integrity is also violated by marital rape.

The Indian government is reluctant to criminalise spousal rape. If a woman under the age of 16 is
subjected to consented sexual activity, it is considered as rape. However, if she is married and her
husband forcibly engages in sexual activity with her, it does not constitute rape. The question as
to why domestic rape is not included by the Indian penal code still stands. This discrimination is
ought to be eliminated to preserve the right to life and liberty of a woman. There is, therefore, an
urgent need for the introduction of laws recognizing marital rape as a crime.