Ist Year BA LLB(H) (Div.

- E) – Semester-I (2023)

Internal Assessment I – FOUNDATION OF ETHICS

CRITICAL ESSAY WRITING

Topic
‘Criminalisation of Marital Rape’

NAME: AKANKSHA (23010125417)

NAME: PRIYADARSHINI BARUAH (23010125435)

DIVISION: E

COURSE: BA LL.B. (H)

BATCH: 2023-2028

CRIMINALISATION OF MARITAL RAPE

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INTRODUCTION

Rape is a malicious sexual act committed violently against a natural person without their consent.
For a long time, uncontrollable sexual desire was considered the cause of rape, today it is
considered a pathological power struggle over the victim. Section 375 1 of the Indian Penal Code
defines rape as a forcible sexual intercourse induced by a person against another without their
consent. However, marital rape is an act committed by spouses against their wives without their
consent.
Marital rape is a term used to describe a sexual act committed by a woman's husband without her
consent and/or against her will. He may use physical force, threats against the victim or another
person, or vicarious harm based on past abuse. The general exception for marital rape is based on
the cultural understanding that marriage makes a woman part of his husband's property, so forced
sexual intercourse is simply a man using his property.

It has always been assumed that when a girl marries a boy, she agrees to the sexual relationship, be
it consensual or forced. Rape was considered a crime and theft of a man's property. It was not
recognized as an injury to the woman but to her father or husband. The legal doctrine held that in
marriage, a woman's legal rights are subordinated to her husband's rights. The property left to a
woman was her virginity. A woman is considered the property of her father and, after marriage, of
her husband. And so, it was assumed that a man cannot rape his wife because she is his property.
Many cases of marital rape are seen in forced marriages. Therefore, the harsh truth is that the
purpose of rape laws is to protect men's property against women, but not to protect women
themselves.

WHY SHOULD IT BE CRIMINALISED?

The criminalization of marital rape comes with several potential benefits, as advocated by
proponents of such laws. Criminalizing marital rape recognizes that every individual has the right to
bodily autonomy, consent, and protection from sexual violence, regardless of their marital status. It
upholds the principle that marriage should not grant immunity to violating someone's personal
boundaries. Laws against marital rape can act as a deterrent, discouraging potential perpetrators
from committing such acts due to the fear of legal consequences. This can contribute to a safer
environment within marriages and relationships. Criminalization empowers survivors of marital
rape to come forward and seek justice without fear of legal or social repercussions. It addresses
issues of gender inequality by challenging the traditional notion that wives are subservient to their
husbands and must comply with their demands. It also sends a message that both partners in a
marriage have equal rights and autonomy.2
Legal recognition of marital rape reinforces the importance of consent within all relationships. This
can contribute to open and healthy communication between partners about their desires, boundaries,
and expectations. The act of criminalizing marital rape can raise public awareness about the
prevalence of sexual violence within marriages. It facilitates discussions about consent, healthy
relationships, and the psychological impact of such violence, hence providing survivors of marital
rape with a legal avenue for seeking justice and redress. This will lead to punishment for offenders
and can offer closure and validation to survivors.
Criminalizing marital rape ensures that the law treats marital relationships on the same grounds as
other relationships when it comes to issues of sexual violence. This promotes fairness and
consistency in legal protections.

1
Code, I.P., 1860. Indian Penal Code.
2
Hasday, J.E., 2000. Contest and consent: A legal history of marital rape. California Law Review, 88(5), pp.1373-1505.

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Creating laws that address marital rape reflects a society's commitment to progress, equality, and
the well-being of all of its members. It can set a positive example for future generations regarding
respect, consent, and relationships.
It's important to note that while these points highlight the potential benefits of criminalizing marital
rape, the implementation and effectiveness of such laws can vary depending on the legal system,
cultural norms, and societal attitudes in different regions.

INDIAN LAWS RELATED TO MARITAL RAPE

India adopted the Penal Code from England. Under British law, marital rape is considered a form of
sexual violence, contrary to the Sexual Offenses Act 2003. Before 1992, marital rape was not
considered illegal, however, it was in 1991 that the case R v. R [1991] UKHL 12, where the House
of Lords, consisting of five Lords, was asked if a man can rape his wife. In this case, the appellant
got married on 11 August 1984 and later filed for divorce and moved in with her parents on 21
October 1989. When she left, she wrote a letter announcing her intention to divorce. The respondent
also spoke to his wife and stated that he also wanted a divorce. On November 12, 1989, he went to
his wife's place and tried to have sex with her against her will and consent and continued to abuse
her regardless of her continued refusal. So, the question arose in court: “Can a man rape his wife?
Does marriage give implied consent to sex without separate consent?”3
Indian Penal Code (IPC) Section 375 & Section 376:
Marital rape is not a crime in India. Marital rape statutes in India are either non-existent or esoteric
and subject to judicial discretion.
Section 375 of the Indian Penal Code (IPC) mentions and defines provisions for the offense of rape.
Paramount progression was made to these provisions after the controversial case of Tukaram v.
State of Maharashtra (which was later overruled by the Hon’ble Supreme Court). According to
3
Hasday, J.E., 2000. Contest and consent: A legal history of marital rape. California Law Review, 88(5), pp.1373-1505.

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Section 376 of the IPC, which prescribes punishment for rape, the rapist should be sentenced to
imprisonment of not less than 7 years and may be extended up to 10 years and even life
imprisonment unless the raped woman is his own wife and not less than 12 years old. In that case,
he may be detained by the arrest of either description for a term that may extend to 2 years with a
fine or with both. Thus, marital rape is considered rape only if the spouse is less than 15 years old
and the severity of the punishment is less severe. After the age of 15, no legal protection is arranged
for the spouse, which is contrary to human rights guidelines. A similar law, which allows the
contractual period of marriage to be 18 years, protects women only against sexual abuse up to the
age of 15.
At last, summarizing Section 375, it has two exceptions – (1) “A medical procedure or intervention
shall not constitute rape.”
(2) “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen
years of age, is not rape.”4

MARITAL RAPE SCENARIO IN INDIA

In India, wherein the 21st century we are still struggling to provide protection to women, the
concept of punishing the offender in case of rape can be traced back to the Mahabharata and
Ramayana periods, where strict punishments and sometimes even death as punishment was granted
to set an example in the society.
One of the notable marital rape cases which triggered several legal reforms was Express v. Hari
Mohan Maiti [1889] (also known as Phulmoni Dasi rape case). Phulmoni was a ten-year-old girl,
who died when her 30-year-old husband named Hari Mohan Maiti forcibly tried to consummate
their marriage. The case went to trial in the Calcutta Sessions Court in 1890, where the defendant
was only convicted under Section 388 of IPC and not under Section 375 as Phulmoni was his wife.5
Later, in 2013 a committee was constituted- the J.S. Verma Committee for proposing
recommendations and amendments to India's rape laws. The committee's report suggested to make
marital rape a criminal offense and its removal as an exception. However, despite the efforts,
marital rape remains immune from prosecution in India.
In view of the current scenario, another case that can be studied to prove that women's rights have
been sidelined, is the case of Megha v. Union of India [2021]. In this case, the appellant was
subjected to sexual assault and forced sexual intercourse by her husband. The case highlighted the
need for laws pertaining to marital rape and proves the lack of protection for women in
abusive marriages.

ADDITIONAL EXCERPT -
Rape is generalized as a crime committed by men against women. Although sexual assaults on
women have been extensively in light and have gathered maximum attention, there has been
minimal research and discussions regarding nonconsensual sex – ‘rape’ against men. In today’s
scenario, it has been seen that males are also victims of significant number of rapes and also other
sexual violence and mental agony, however, rape against males is still a taboo.
Thus, when we advocate for female rights and protection against sexual offenses and specific
matters like ‘marital rape’, which does not have a significant provision, we must take both male and
female together and form legal statutes pertaining to sexual acts of violence.

OPINIONS AND ANALYSIS

4
Code, I.P., 1860. Indian Penal Code.,
5
Dixit, A., 2021. Marital Rape-A Silent Agony for Women. Supremo Amicus, 24, p.260.

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Marital rape is a complex and sensitive issue that involves the intersection of legal, cultural, social,
and gender dynamics. Analyzing marital rape requires consideration of various aspects, including
historical context, legal frameworks, societal attitudes, and the impact on individuals and
relationships. The immediate need is the criminalization of marital rape under the Indian Penal
Code. There is also a need to educate the masses about this crime, as the real objective of
criminalizing marital rape can only be achieved if society acknowledges and challenges the
prevailing myth that rape by one’s spouse is inconsequential.6
In conclusion, the analysis of marital rape reveals the intricate interplay of legal, cultural, and social
factors that shape attitudes and responses to this issue. As societies continue to evolve, discussions
around marital rape contribute to broader conversations about consent, gender equality, and the
importance of recognizing and respecting individual autonomy within intimate relationships.

CONCLUSION

A sensitive issue such as Marital Rape needs a deep and detailed discussion. Criminalizing marital
rape will not merely help. Rather there is a need for rectifying and filling the gaps in existing laws
and doing away with archaic ones that tend to function against the well-being of women and society
as a whole. Public consultation and discussion with all the stakeholders may be the way forward.
The traditional definition was narrow with respect to both gender and age; rape was an act of sexual
intercourse by a man with a woman against her will. As rape is now understood, a rapist or a victim
may be an adult of either gender or a child. Although rape can occur in same-sex intercourse, it is
most often committed by a male against a female. There is also an increasing tendency to treat as
rape an act of sexual intercourse by a husband with his wife against her will and to consider forced
prostitution and sexual slavery as forms of rape.

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REFERENCES

https://www.writinglaw.com/criminalisation-of-marital-rape/

https://docs.manupatra.in/newsline/articles/Upload/8787A55C-D93F-4589-8A68-
A9A032AFAF0E.pdf

https://www.legalserviceindia.com/legal/article-4905-legality-of-marital-rape-in-india.html

6
Kirkwood, M.K. and Cecil, D.K., 2001. Marital rape: A student assessment of rape laws and the marital exemption.
Violence Against Women, 7(11), pp.1234-1253.

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https://indiankanoon.org/doc/1921761/

Kirkwood, M.K. and Cecil, D.K., 2001. Marital rape: A student assessment of rape laws and
the marital exemption. Violence Against Women, 7(11), pp.1234-1253.

Lees, S., 2013. Marital rape and marital murder. In Home truths about domestic violence (pp.
57-73). Routledge.

Gadia, S., 2022. Decoding the Conundrum of Marital Rape-An Analysis of Marital Rape in
India. Supremo Amicus, 28, p.473.

https://bnblegal.com/news/marital-rape-a-solid-ground-for-divorce-kerala-high-court/