Dr.

Ram Manohar Lohiya National Law University

Lucknow

PROJECT REPORT

FAMILY LAW

Topic: Marital Rape-: Current Legal Framework in India and the Need for
Change.

Submitted to: Submitted by:

Dr. Samreen Hussain Sakshi Singh Barfal
(Assistant Professor Law ) Enrollment no. – 190101122
Dr. RMLNLU B.A. L.L.B (Hons)
Section - B
3rd Semester

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 ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep regards to my Assistant

Professor Mr. Samreen Hussain for his exemplary guidance, monitoring and constant

encouragement to give shape to this project. The blessing, help and guidance given by her time

to time shall carry me a long way in the journey of life on which I am about to embark.

 I also take this opportunity to express a deep sense of gratitude to my respected seniors who

share their cordial support, valuable information and guidance, which helped me in completing

this task through various stages.

Lastly, I thank the almighty, my parents, brother, sisters and friends for their constant

encouragement without which this assignment would not have been possible.

Sakshi Singh Barfal

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Table of Contents-

1. INTRODUCTION
2. MARITAL RAPE- AN UNDERSTANDING
3. MARITAL RAPE AND LAWS IN INDIA
4. LACK OF CRIMINALISATION OF MARITAL RAPE AS A FUNDAMENTAL
RIGHTS VIOLATION
5. THE MODEL FOR CRIMINALIZATION OF MARITAL RAPE

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INTRODUCTION

Rape per se is an offence against woman, violating her dignity and self-respect and when it
occurs within the four-walls of a matrimonial home, it reduces the woman to the status of an
object used merely for sexual gratification. There is an immediate need for a distinct law on
marital/spousal rape in India, which should be at par with the accepted international norms on
this issue.

The woman has been given the right to fight for protection when the violators are outside
entities, but when the perpetrator of her bodily integrity is her own husband, who she married
with all the pomp and show, such protection is withdrawn by the legislators.

In light of this, the idea that a woman (wife) has to have sex with her husband irrespective of her
will, consent, health, etc, is absolutely unacceptable to a civilized society. Therefore there is no
justification or applicability of the notion of marital exemption in the current times. It is true that
mere criminalization of marital rape in India will not end the problem, but it sure is an important
step towards changing women’s experience of sexual violence in a marriage. It is high time that
the concept of “rape is rape, irrespective of the relationship between the victim and the
perpetrator” is recognized by the law and put strictly to force.

Marital Rape – An Understanding

When one mentions the word rape, the tendency is to think of someone who is a stranger, a
malicious person. Usually one does not think of rapes in the context of marriage. Women
themselves find it difficult to believe that a husband can rape his wife. After all, how can a man
are accused of rape if he is availing his conjugal rights. It is indicative that a woman has no right
to her own body, and her will is subject to that of her husband. Though marital rape is the most
common and repugnant form of masochism in the Indian society, it is well hidden behind the
iron curtain of marriage. While the legal definition varies, marital rape can be defined as any
unwanted intercourse or penetration (vaginal, anal, or oral) obtained by force, threat of force, or
when the wife is unable to consent.

Marital rape is particularly complicated because the complex, personal nature of marital
relationships makes it hard for the victim to even see herself as a victim, let alone reporting the
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offending act to the authorities, which is why Marital Rape is one of the highly under-reported
violent crimes. Even the women who do consider themselves victims are disinclined to approach
the authorities because they are financially dependent upon their husbands, and reporting the
matter could very well result in withdrawal of financial support leaving them and their children
without food and shelter.

Today there are many countries that have either enacted marital rape laws, repealed marital rape
exceptions or have laws that do not distinguish between marital rape and ordinary rape.

The criminalization of marital rape in these countries both in Asia and around the world indicates
that marital rape is now recognized as a violation of human rights. In 2006, it was estimated that
marital rape is an offence punished under the criminal law in at least 100 countries and India is
not one of them. Even though marital rape is prevalent in India, it is hidden behind the sacrosanct
curtains of marriage

There have been plenty of legislations and enactments passed in India in regard to violence
against woman in her own house like laws against dowry, cruelty, domestic violence and female
infanticide. However the biggest and the most shameful wrong within a marriage, where a
husband forces himself upon his wife thinking that it is his nuptial right to have sex with his wife
(with or without her consent), ‘marital rape’, has failed to gain recognition as a crime in the eyes
of policy makers.

Women who are raped by their husbands are likely to be raped many times.. Husbands often rape
their wives when they are asleep, or use coercion, verbal threats, physical violence, or weapons
to force their wives into having non-consensual sex with them. 1 Marital rape is a serious problem
that millions of women worldwide have to suffer and face such abuse on a day-to-day basis. It is
difficult to obtain accurate data and rape and violence against women within the family, in part
because women are reluctant to report incidents, as women raped by their husbands may hesitate
to report because of family loyalty, fear of their abuser’s retribution, inability to leave the
relationship, safeguarding the future of their children, or the fact that there are no stringent laws
in force protecting the victims of marital rape. By way of comparison, the best available statistics
on marital rape in the United States suggest that one out of every seven or eight married women

1
http://www.taasa.org/library/pdfs/TAASALibrary104.pdf
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has been subjected to rape or attempted rape by her husband. According to another estimate,
approximately 10% to 14% of the married women experience rape within marriage.2

Marital Rape and Laws in India

Though we have advanced in every possible field, marital rape is not considered as an offence in
India. Despite amendments, law commissions and new legislations, one of the most humiliating
and debilitating acts is not an offence in India. A look at the options a woman has to protect
herself in a marriage, tells us that the legislations have been either non-existent or obscure and
everything has just depended on the interpretation by Courts.

The final version of section 375 of the Indian Penal Code, which emerged after deliberations in
the Select Committee, is a crystallized form of Clause 359 of the Macaulay’s Draft Penal Code.
Section 375,3 the provision of rape in the Indian Penal Code (IPC), has echoing very archaic
sentiments, mentioned as its exception clause- “Sexual intercourse by man with his own wife, the
wife not being under 15 years of age, is not rape.”

Section 376 of IPC provides punishment for rape. According to the section, the rapist should be
punished with imprisonment of either description for a term which shall not be less than7 years
but which may extend to life or for a term extending up to 10 years and shall also be liable to
fine unless the woman raped is his own wife, and is not under 12 years of age, in which case, he
shall be punished with imprisonment of either description for a term which may extend to 2 years
with fine or with both. This section in dealing with sexual assault, in a very narrow purview lays
down that, an offence of rape within marital bonds stands only if the wife be less than 12 years of
age, if she be between 12 to 15 years, an offence is committed, however, less serious, attracting
milder punishment. Once, the age crosses 15, there is no legal protection accorded to the wife, in
direct contravention of human rights regulations. How can the same law provide for the legal age
of consent for marriage to be 18 while protecting form sexual abuse, only those up to the age of
15? Beyond the age of 15, there is no remedy the woman has. The Indian Penal Code was
amended in 1983 to make way for the criminalization of spousal rape during the period of
judicial separation.4

2
Diana. E. H. Russell, Rape in Marriage, Indiana University Press, Bloomington, 1990.
3
The section 375 of the Indian Penal Code (45 of 1860)
4
Indian Penal Code (45 of 1860), Section 376A.
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As per the Indian Penal Code, the instances wherein the husband can be criminally
prosecuted for an offence of marital rape are as under:

1. When the wife is between 12 – 15 years of age, offence punishable with imprisonment upto 2
years or fine, or both;5

2. When the wife is below 12 years of age, offence punishable with imprisonment of either
description for a term which shall not be less than 7 years but which may extend to life or for a
term extending up to 10 years and shall also be liable to fine.6

3. Rape of a judicially separated wife, offence punishable with imprisonment upto 2 years and
fine;7

4. Rape of wife of above 15 years in age is not punishable.8

In 2005, the Protection of Women from Domestic Violence Act, 2005 was passed which
although did not consider marital rape as a crime, did consider it as a form of domestic violence.9

Under this Act, if a woman has undergone marital rape, she can go to the court and obtain
judicial separation from her husband. This is only a piecemeal legislation and much more needs
to be done by the Parliament in regard to marital rape.
Marital rape reflects the perversity of an individual. It is not only the rape of a woman’s body but
a rape of her love and trust as well. Being subject to sexual violence by her own husband
envelopes her in a sense of insecurity and fear. Her human rights are sacrificed at the altar of
marriage. Various provisions of the IPC relating to sexuality reinforce not only Victorian
morality but also the non-agency of women.
Thus, it is visible that the law which is considered as the savior of the victimized is inadequate
and insufficient to protect the interests of those afflicted with the ill of marital rape.
The basic argument which is advanced in favor of these so-called `laws’ is that consent to marry
in itself encompasses a consent to engage into sexual activity. But, an implied consent to engage
into sexual activity does not mean consent to being inflicted with sexual violence. It is often felt

5
Indian Penal Code (45 of 1860), Section 376(1).
6
Ibid.
7
Indian Penal Code (45 of 1860), Section 376A.
8
Indian Penal Code (45 of 1860), Exception to Section 375.
9
The Protection of Women from Domestic Violence Act, 2005, Section 3 Explanation 1 (ii).
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that as in sadomasochistic sexual acts, in marital rape women are presumed to have consented to
the violence. However Rape and sex cannot be distinguished on the basis of violence alone.
Violence creates a sense of fear and insecurity and this causes the women to submit to sex and
this cannot be construed as consenting to sex. This fear may be compounded by her feeling of
not having fulfilled her husband’s desire. The distinction between consent and non-consent in
contradistinction is fundamental to criminal law.10
The very definition of rape (section 375 of IPC) demands change. The narrow definition has
been criticized by Indian and international women’s and children organizations, who insist that
including oral sex, sodomy and penetration by foreign objects within the meaning of rape would
not have been inconsistent with nay constitutional provisions, natural justice or equity.
Even international law now says that rape may be accepted as the “sexual penetration, not just
penal penetration, but also threatening, forceful, coercive use of force against the victim, or the
penetration by any object, however slight.” Article 2 of the Declaration of the Elimination of
Violence against Women includes marital rape explicitly in the definition of violence against
women. Emphasis on these provisions is not meant to tantalize, but to give the victim and not the
criminal, the benefit of doubt. The importance of consent for every individual decision cannot be
over emphasized. A woman can protect her right to life and liberty, but not her body, within her
marriage, which is just ironical. Women so far have had recourse only to section 498-A of the
IPC, dealing with cruelty, to protect themselves against ‘perverse sexual conduct by the
husband’. But, where is the standard of measure or interpretation for the courts, of ‘perversion’
or ‘unnatural’, the definitions within intimate spousal relations? Is excessive demand for sex
perverse? Isn’t consent a sine qua non? Is marriage a license to rape? There is no answer,
because the judiciary and the legislature have been silent.

Lack of criminalization of marital rape as a fundamental rights violation

Marriage is considered to be a sacred institution that forms the bedrock of our society. It is
viewed as deeply personal and the State is hesitant to disturb this delicate space. This is to
maintain the privacy of citizens and the intrusion of the State in this sphere would disrupt this
privacy. Thus, the State does not compel any two individuals to marry or divorce. However, the
refusal of the State to enter this private space even in certain specific instances can be
10
Shroff, Aditya & Menzes, Nicole, “Marital Rape as a Socio-Economic Offence: A Concept or a Misnomer”,
Student Advocate,
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problematic. For example, if a wife is subject to cruelty in a marriage, then the State will have to
enter this private sphere to criminalize this cruelty that the wife is subject to. If the State does
not do so, then the woman will have no redress legally. Thus, it is important for the State to
penetrate this private sphere on certain occasions.
Marital rape is also a violation of the fundamental right of a woman specifically under Articles
14 and 21 of the Constitution of India.
However, an analysis of judicial decisions with respect to matters traditionally conceived to be
within the private sphere of marriage and family highlights the hesitation of the judiciary to bring
in fundamental rights in this private sphere. The judiciary has created this fictitious private
sphere where it refuses to implement and read in fundamental rights.
The effect of this has been to negate the question of whether marital rape is an infringement of
fundamental rights. This is because in the perceived marital sphere, there is no role for
fundamental rights.

The model for criminalization of marital rape

The J.S. Verma Report, as discussed in Part II, is the landmark report that reignited the debate on
marital rape in recent times. The committee gave a four-prong suggestion to effectively
criminalise marital rape. It asked for the removal of the exemption clause, it asked to specifically
mention that it is not a defence, that there would not be a presumption of consent and lastly, that
the quantum of punishment is the same. In contrast to this, the 42nd Law Commission Report

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suggested that marital rape be put into a separate section, and not be called ‘marital rape’ and
also have a different punishment. In this part, we will analyze the model we believe works best.
However, we will also add our analysis with regard to the law of evidence, since a major hurdle
for conviction in marital rape is the difficulty to prove it.
A. The law must specify that the relationship of marriage is not a Defence-:
First, we agree with the J.S. Verma Report’s suggestion that mere removal of the exception
clause in Sec375 is not sufficient to ensure that the peculiar circumstances in cases of marital
rape is covered. This is because it will lead to excess of judicial discretion.

For example, in Ghana, marital rape is legally criminalised, i.e. they do not have an exception
clause, but because it was not explicitly mentioned that the relationship of marriage is not a
defence, it opened up for the judiciary to frame its own framework for dealing with such cases. It
is possible for the judiciary to treat cases of marital rape differently, by imposing a higher
evidentiary requirement or presuming consent. This will lead to arbitrary consequences.
Secondly, it is important that the exception be clearly laid down in law. This is more so when
there is significant cultural opposition to this legislation since the reader might not be aware that
the act is a crime.
B. SHOULD WE PRESUME CONSENT IN CASES OF MARITAL RAPE?
Secondly, we also agree with the J.S. Verma Report that the existence of a marriage does not
lead to a presumption of consent. However, in practicality, the judiciary will undeniably look at
some threshold of force to answer questions of consent. There are three ways to treat consent
while criminalising marital rape. The first would be to presume consent, and put the burden on
the victim to rebut that consent. The second is to presume absence of consent, and the accused
will have to establish consent. The third would be to draw out a system especially for cases of
marital rape, and this will require a review of existing principles of evidence law.
The most ideal of these would be to treat consent in the similar manner as we would in other
cases. It is extremely difficult to presume the existence of consent in a marriage since rebutting it
would close to impossible considering the nature of spousal rape and abuse which happens
within the private confines. The other extreme of presuming consent is that once the wife
testifies in court that she was raped there will be a presumption of lack of consent that will act
against the accused.11 Both of these will not operate well practically while determining the

11
The Indian Evidence Act 1872, Section 114A
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existence of ‘consent’ in cases of marital rape. According to law at present, there need not be
force used to indicate lack of consent.12 Consent is understood on the basis of circumstantial
evidence.13
Considering the nature of the act of marital rape, producing evidence is extremely difficult. This
is even more so due to societal imagery of women’s filing for charges of rape as using it to
harass or hurt or seek revenge. In light of this, we submit that a few factors that the court must
take into consideration while understanding cases of marital rape.
The first problem we would face is that proof of the existence of sexual intercourse will not
amount for much in cases of marital rape. This is because of the implicit underlying assumption
that it is expected that married couples will engage in sexual intercourse with each other. Thus,
the proof of lack of consent is not as simple as in stranger rape cases. In the United States of
America, thirty-three states have some qualifications regarding the amount of force required to
prove marital rape.14 Thus, the general rule that force is not a qualification might not practically
work in these cases. However, this situation is not grim since statistically, most cases of marital
rape also exist in tandem with signs of physical injury or other forms of cruelty, including mental
cruelty. Thus, the general rule of lack of force not being a consideration will face a shift in cases
of marital rape.
Due to the private nature of the crime, very often, the only proof will be that of the wife’s
testimony. In such instances, it is extremely important to look for other forms of evidence to
corroborate charges of rape. This means that if the husband has had patterns of cruelty, domestic
violence, it will be relevant while determining whether the husband has committed rape. It need
not be a mandatory factor but must work as a contributing factor.
This will be in conflict with Section 53 and 54 of the Indian Evidence Act, 1872 as past bad
character is not relevant. However, in cases of marital rape, this might sometimes be the only
significant source of corroborative evidence to prove a history of assault.
In addition to this, there is established case law recognising that past sexual activities of the
woman are not required for establishing the existence of consent.15

12
State of H.P. v Mango Ram, (2000) 7 SCC 224
13
Uday v. State of Karnataka, (2003) 4 SCC 46; Pradeep Kumar alias Pradeep Kumar Verma v. State of Bihar,
(2007) 7 SCC 413; Dilip v. State of Madhya Pradesh, (2013) 14 SCC 331.
14
ENCYCLOPEDIA OF RAPE, 169 (Merril D. Smith, 1st Ed. 2004)
15
Narender Kumar v. State (NCT of Delhi), (2012) 7 SCC 1
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However, this is couched in terms of the woman’s sexual history with another man. However,
this ratio can still be applied in these cases, i.e. to not take into consideration whether the woman
has had past sexual history with that man. This is extremely crucial in case of marital rape, since
the woman could have had consensual sexual relationship with her husband before the instance
or instances of non-consensual intercourse, i.e. rape. Expert testimony, specifically testimonies
of doctors, will also be relevant since the mental trauma and the psychological trauma that the
victim faces can be established through such evidence. This will increase the importance of such
evidence from the side of the prosecution. Testimony from family members attesting to such
instances will also be hugely beneficial.
C. SENTENCING POLICY
Third, we agree that there must be no difference in the sentencing policy. Section 376 of the IPC
lays down the sentencing policy. The punishment for rape is between seven years to life
imprisonment. However, Sec 376B deals specifically with husband and wife living separately
has a different sentencing policy with the punishment between two years and seven years. This
clearly shows that the intention was to bring about a lesser standard for punishing rape when the
husband was the convict. However, on grounds of equality as given in Article 14, we argue that
this is unconstitutional. There is no justification for having a lesser punishment policy because of
the relationship of existence of marriage. In light of this, we propose that Section 376B be
repealed and the sentencing policy work as it does.
D. CONSOLIDATED REFORMS REQUIRED IN THE IPC AND EVIDENCE ACT
We have spent previous sections arguing for the criminalisation of marital rape. In light of all of
the arguments advanced, we propose the following amendments in the criminal law.
First, removing the exception clause in Section 375 and adding another explanation clause
mentioning that marriage is not a defence
Section 375-: Rape- A man is said to commit “rape” who, except in the case hereinafter
excepted, has sexual intercourse with a woman under circumstances falling under any of the six
following descriptions:-
(First) -Against her will.
(Secondly) -Without her consent.
(Thirdly) - With her consent, when her consent has been obtained by putting her or any person in
whom she is interested in fear of death or of hurt.

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(Fourthly) -With her consent, when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she is or believes herself to
be lawfully married.
(Fifthly) -With her consent, when, at the time of giving such consent, by reason of unsoundness
of mind or intoxication or the administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to understand the nature and consequences
of that to which she gives consent.
(Sixthly) - With or without her consent, when she is under sixteen years of age.
Explanation- Penetration is sufficient to constitute the sexual intercourse necessary to the offence
of rape.
Explanation -The relationship of marriage does not constitute a valid defence.
Second, repeal of Section 376B of the IPC
Indian Evidence Act, 1872 to amend Section 54 and to insert Section 114B.
 Sec 54: In criminal proceedings the fact that the accused person has a bad character is
irrelevant, unless evidence has been given that he has a good character, in which case it
becomes relevant.
Explanation 1-this section does not apply to cases in which the bad character of any
person is itself a fact in issue.
Explanation 2- A previous conviction is relevant as evidence of bad character.
Exception: In cases under Section 375 of the IPC, the previous bad conduct will be
relevant if the accused is the husband of the woman.
 Section 114B: no presumption of consent in prosecutions of rape: There shall be any
presumption of consent in prosecutions of rape, even if the accused is the husband of the
woman.

Conclusion
The debate of marital rape is crucial in establishing substantive equality for married women who
are otherwise relegated in public and legal discourse to the confines of their home. It is crucial to
recognize that this is a major lacuna in criminal law at present defeating the constitutional
provisions that grant women equality and autonomy. As I have continually illustrated, there have
been stiff political, legal and cultural arguments against criminalization.
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I have carefully analyzed the validity of these arguments which are coated with notions of the
family, marriage and the role of women in society. I have established how all the arguments
against criminalization do not have any legal standing. I have argued that the exemption clause in
Section 375 of the IPC as it stands today is unconstitutional. This is because it fails the equality
test as given in Article 14. In addition to this, we have depicted how there are not any effective
alternatives in law, and further that our focus should not be on alternatives but rather on
criminalizing it. I also brought out how our culture not being accepting towards marital rape is
not a reason to not criminalize it.
In light of all of this, I propose a model to criminalize marital rape. First, propose that the
exception clause be deleted. Second, propose that it be specifically highlighted that the
relationship of husband and wife between the accused and the woman will not be a defence.
Third, we propose that the sentencing policy be the same. Fourth, we propose for certain
amendments in the Evidence Act to ensure that it takes into account the complexities of
prosecution in cases of marital rape.
Though a husband’s violent and non-consensual act of intercourse may entitle a wife to bring
action for criminal assault, inquiry or matrimonial relief, what is needed is the incorporation of
the principle of liability for marital rape in our penal laws. Not only child-brides, but all wives
need legal protection from rape within the marriage. It is high time that the dignity and freedom
of a woman over her body and person must be recognized.

Bibliography-:

Books-:

1. Diana. E. H. Russell, Rape in Marriage, Indiana University Press, Bloomington, 1990.

2. Marital Rape-Consent, Marriage, and Social Change in Global Context-: Edited by Kersti
Yllo and M. Gabriela Torres.
3. Family Law Matters (Law and Social Theory)-: by Katherine O'Donovan

Sites-:

1. https://www.latestlaws.com/case-analysis/
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2. https://indiankanoon.org/doc/87705010/
3. http://docs.manupatra.in/newsline/articles/
4. https://psychcentral.com/lib/marital-rape/
5. https://www.youthkiawaaz.com/2018/07/why-marital-rape-should-be-criminalized-in-
india/

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